Thompson v. Norwood

• Decision Date: 01 January 1813
• Citation: 3 Tenn. 346
• Parties: THOMPSON v. NORWOOD.
• Court: Tennessee Circuit Court

3 Tenn. 346

THOMPSON

v.NORWOOD.

Circuit Court, D. Tennessee.

1813.

This was an ejectment brought to recover a tract of land lying in Franklin county. The plaintiff [Thompson's lessee] derived his title under a grant from the state of Tennessee to William Bean, dated the 8th day of December, 1808, upon an occupant entry made on the 3d day of August, 1807. The defendant claimed under a grant from the state of Tennessee, dated the 28th day of May, 1812, founded upon an occupant entry made the 3d of July, 1811, in pursuance of a previous survey of the 9th of March, 1808. It was admitted that William Bean was not an occupant at the time he made his entry, and it was also admitted that at the time Norwood made his survey, he was in the actual occupancy.

Mr. Whiteside, for plaintiff, insisted that the right of occupancy of William Bean could not be contested by verbal testimony after it had passed the proper officer. When application is made to make an occupant entry proof must be exhibited to the surveyor of the actual occupancy, and his act ought to be considered as not controvertible by verbal testimony. In this case, however, it will not be very material whether the act of the surveyor can be impeached or not, inasmuch as the title of the defendant is not so situated as to enable him to do it. Admitting that Bean was not an actual settler, yet he may be viewed in the same light as the holder of a common warrant, and as such, his entry will be a good one against all subsequent enterers. Norwood has no right to complain; the land had been previously appropriated, and whether by an actual occupancy or not, was to him perfectly immaterial, because Bean had a right to make his entry as the holder of a common warrant long previous to the date of the entry made by Norwood. To enable this court to go beyond the grant there must be some previous title existing in the defendant, and that title, where he has the youngest grant, must be by an elder legal entry. In the present instance both the entry and grant of the defendant are of a younger date than the grant to the plaintiff. There is then no title existing in the defendant to enable him to inquire about the plaintiff's title beyond the date of his grant.

Mr. Cooke, for defendant, said that two questions arose in the cause: First, could the defendant resort back to his survey as the origin of his claim; and secondly, whether by doing so he could avail himself of the want of occupancy on the part of Bean. It has been determined in this country that the person holding under the youngest grant cannot in a court of law contest the right of his adversary, unless by producing a legal entry of an older date than the grant of his adversary. The principle, however, can only apply to such of our land claims as arise under those parts of the land law which speak of the entry being the beginning of the title. Under the general land law and the occupant law of 1806 [1 Scott's Laws, p. 889], an entry was the first thing to be done by a claimant exhibiting a wish to...