Reid's Lessee v. Dodson
| Decision Date | 31 May 1809 |
| Citation | 1 Tenn. 396 |
| Parties | REID'S LESSEE v. DODSON. |
| Court | Tennessee Circuit Court |
Ejectment.--In this case a joint ejectment had been brought against two defendants, Dodson and Buford; the clerk had docketed them as two suits. Before the trial came on it was moved by the plaintiff's counsel that these suits might be consolidated, and insisted that it had been frequently done in actions of trespass, and no distinction could be perceived in this respect between ejectment and other actions of trespass. If joined by the declaration, the defendants in pleading could not separate them, and make separate actions.
Campbell, J., thought there ought to be no consolidation, but that the suits should remain on the docket as they are.
The practice ought to be settled. Where a court clearly perceive that no injury will arise from a consolidation they may order it on such terms as they may deem correct. Usually the application comes from the defendant. It is otherwise in this case. The defendants have severed in their pleading, and for this there might have been, what the defendants conceived to be, the strongest reason. They may have long chains of title in no wise dependent on nor connected with each other. In such cases defendants might well suppose that the joining in pleading would produce embarrassment, and injure the defence each might wish to make. In cases where the plaintiff brings several actions depending on one principle, as in a common case of trespass, where the plaintiff declares separately; on the application of the defendants supported by affidavit, that the cause of action is joint, the Court may order a consolidation. The defendants may have the strongest reason to induce a severance, and therefore the Court ought not to order a consolidation.
In this case the defendants have severed in pleading. All our pleadings in a court of law are made up in court, and under its direction and control. The plaintiff, by joining issue, has evidenced consent to this severance. It is now too late to make this application at any rate. The causes is now called for trial, and the parties must abide by the pleadings as they stand.
The plaintiff claimed under a military grant for 3840 acres of land, dated December the 31st, 1793, on the waters of Harpeth. The defendant claimed under a military grant to William Mabane, heir of Robert Mabane, a deceased colonel, for 7,200 acres, on both sides of the west fork of Harpeth River, adjoining Absalom Tatum's North and south boundary, beginning about one mile north of his south-east corner, running east and south. This grant issued under an entry dated August the 16th, 1784. An entry had been made for part of the same land on the 7th of February, 1784. The defendant further offered in evidence a deed from Lewis Robards, without showing any title to Robarts. This was objected to on the ground that there ought to be shown a regular deduction of title. In answer by the defendant's counsel, it was observed that a person in ejectment was not bound to show his title in connection. It was sufficient if, at the conclusion of his eivdence, a regular title be made out.
There surely can be but one right beginning in giving evidence. In trials of ejectment it is highly important to a clear comprehension of claims, that the parties should deraign their titles in regular order, from their foundation, or grant. This is the natural order of things, and ought to be observed. Where a claim depends on several title papers, from one person to another, it ought to be shown in the order in which titles were made. Under a different view of the subject, the time, and even the gravity, of a court of justice may be sported with. One of the parties shows to the Court a deed which has no connection with the title of the other party. Beginning for instance in the middle of a chain of title, then running from one title to another. The Court, to be sure, can put this apparently discordant matter together after much time has been exhausted, but the parties may not be able to connect the claim for the want of some title paper; and so the whole business falls to the ground after an examination for a day or two. Much public time is lost, and no useful purpose answered. A party might know he could not make out a title, and yet take up the time of the Court in this way, if he be permitted. Various inducements might produce such a course. To ascertain the opinion of the Court on some particular points, or stave off some other cause on the docket. We know that it has frequently been the case that causes after lengthy examination have miscarried in this way, for want of some title paper. The introduction of evidence upwards, in a regular connection, would be attended with some of these inconveniences, though not so many; this however would be inverting the natural order of things.
The evidence of title papers ought to be introduced in connection, but they conceived it was not material whether upwards or downwards or to or from the grant.
A copy of a letter of attorney from Mabane to Anthony Bledsoe, authorizing him to make a deed for 1028 acres, part of his tract, was offered in evidence. It was certified by Andrew Ewing, C. D. The certificate showed that James Robertson, in 1788, proved it on oath. The copy does not show the signature or seal of Mabane. The counsel for the plaintiff objected to the reading of this copy. It was answered, on the other side, that copies of letters of attorney might be read, and relied on Ird. 145, with the Act of April, 1796, c. 7, sec. 1. The note of Iredell shows that it was always allowable in North Carolina to register letters of attorney. The act speaks of grants, deeds, and mesne conveyances. The word deeds certainly includes letters of attorney, and the Act 1796 allows a fee to the clerk for registering a power of attorney.
The copy ought to be received.
Since the Act of 1796, it would seem proper to admit copies in the absence of originals. This letter of attorney was proved and registered previous to that act, when, as we believe, there was no law to authorize it. Beside, it does not appear from this copy that Mabane sealed the instrument. It was then moved, on the part of the defendant, that James Robertson might be sworn to prove the execution.
Dickinson, for plaintiff, relied on Peake's Ev. 96, to show that a duces tecum should have issued for the purpose of getting the original.
Haywood, e contra.--The case in Peake refers to cases where a paper is in the hands of a third disinterested person. Here the power was made to Bledsoe, who is dead, and if alive, and summoned here, he could not be a witness, being interested.
There is nothing before the Court, we shall see what ground is laid by proof.
Gen. James Robertson was first sworn on the voir dire, and stated that he was not interested in the event of the cause. He was asked how he was situated respecting these transactions, so as to be able to judge whether he was interested or not.
The counsel for the defendant objected to this question, relying on a decision at Carthage.
The case alluded to at Carthage is not similar to the one before the Court. In that case the witness himself objected to his answering questions by which he would injure himself; here the witness does not pretend to protect himself from answering a question on the ground that his answer would affect his interest. He may therefore be examined as to his situation.
The witness stated that he only sold his right as locator, and there exists no obligation to make this right good.
He is admissible. Upon which he was sworn, and proved that he was a subscribing witness (with Nichols and Lytle) to the letter of attorney, and that the one offered in court was a true copy, as he believed.
Campbell and Humphreys, JJ., thought the testimony sufficient to authorize the reading of the copy.
It does not yet appear that this instrument had a seal. The witness does not perfectly recollect on this ground, and if he did, it seems to me that resort must be had to a court of equity to supply such a material defect. If the law had authorized the registration it might perhaps be sufficient, though this is doubtful. In this case no validity is derived from the circumstance of putting it on the record, and it seems to me that its loss can no more be supplied in a court of law, in the trial of an ejectment, than if a recent deed had been lost.
The defendant's grant being the oldest, the plaintiff read his entry to overreach it. It was dated December the 20th, 1783, number of location 160, in these words: “Captain Jesse Reid, transferred to Guilford Dudley Reid, enters 3840 acres of land, lying on Little Harpeth, beginning above Absalom Tatum's line, and up said river on both sides.”
Upon examination, it appeared, that Absalom Tatum's entry was made February the 6th, 1784, for 5,000 acres, “on the south side of Big Harpeth, on a fork called Daniel's Fork.” From the Act of 1782, c. 3, sec. 8, it appeared that commissioners were appointed, of whom Tatum was one. In 1783, c. 3, sec. 9, entries of the commissioners' pre-emptions and guards were directed to be made in Davidson County. Isaac Shelby's and other depositions were offered to prove that the place where Absalom Tatum, one of the commissioners, had elected to lay his claim, was a place of notoriety, previous to Reid's making his entry.
Campbell and Humphreys, JJ., were of opinion that this was proper evidence. Though Tatum's entry was not made, there was a law in existence allowing him 5,000 acres for his services as commissioner, and it might be matter of notoriety, where he intended to take his land. Any thing of notoriety, as well one thing as another, may be called for in an entry, and will be good.
Overton, J.,...
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