Williams v. Tenn

• Decision Date: 01 January 1812
• Parties: WILLIAMS v. THE REGISTER OF WEST TENNESSEE.
• Court: Tennessee Court of Appeals

3 Tenn. 214

WILLIAMS

v.THE REGISTER OF WEST TENNESSEE.

Supreme Court of Errors and Appeals of Tennessee.

1812.

Appeal.

On general principles, the idea of an individual citizen compelling the sovereign to do an act, is repugnant to every idea of sovereignty; and the provision of the Constitution, that suits may be brought against the State in such manner, and in such courts, as the Legislature may by law direct, is a dead letter, until some mode of proceeding shall be pointed out by the Legislature.

Where, therefore, the Legislature passed an act prohibiting the registers from issuing a grant to a certain person, or his assigns, on a certain certificate, and an application was made by an assignee for a mandamus to compel the Register to issue the grant, it was held that the mandamus could not be granted, although the act was unconstitutional.

But it was held, also, that if a State issue a grant to any other person, the court of equity would, upon being satisfied of the right of the person claiming under the certificate, divest the title out of the ?? in such person.

[Cited in: ??; 8 Lea, 263;16 Lea, 535.]

The plaintiff filed his petition in the Circuit Court of Davidson County, in which he states that the commissioner of West Tennessee had issued a warrant or certificate to Thomas Dillon, for five thousand acres of land, No. 292; that the petitioner had procured for a full and valuable consideration, an assignment of three thousand two hundred and sixty acres, part of said warrant, and in pursuance of that assignment made an entry of three thousand acres, on the 28th day of March, 1810, and caused the same to be surveyed by a lawful surveyor. The petition also states that he lodged the plat of survey, with the necessary accompanying documents, with the register, for the purpose of obtaining a grant for the same; and that the plat had remained three months with the principal surveyor, according to law.

The Register refused to issue a grant thereon.

The Circuit Court issued a mandamus, but by agreement the question was referred to this Court.

On the service of the writ, the Register returned for cause that an entry had been made in John Armstrong's office for five hundred acres of land, No. 2,562; that on the entry a grant had issued to Stokely Donnelson, not for five hundred, but for five thousand acres; that by an act of the Legislature of this State, passed on the 23d day of November, 1809, the Registers of the land offices for East and West Tennessee were expressly forbidden to issue a grant or grants to Thomas Dillon or his assignee, on any entry or entries made, or to be made by virtue of said warrant to Thomas Dillon; that the warrant issued to Dillon in consequence of the entry No. 2,562, and grant thereon to Stokely Donnelson; saving, however, a right to issue a grant for five hundred acres, the quantity expressed in the original entry, and no more.

The answer further stated that, upon the petition of Williams and one John C. M'Lemore, the Legislature in 1811 gave the assignee of Dillon a preference for twelve months to re-enter, upon a good and valid warrant, any land which had been entered by virtue of the warrant to Dillon. The Register, upon this state of the case, submitted to the Court whether he was bound to issue a grant or not.

It appears that the commissioner of West Tennessee issued the certificate or warrant to Dillon on the 15th day of August, 1809, expressing on the face of it that it was in consequence of grant No. 346, for five thousand acres to Stokely Donnelson which could not be identified; and that the grant was by virtue of entry No. 2,562.

The cause was argued in this Court by Haywood, Whiteside and Cooke, for the plaintiff; and by Balch, for the defendant.

Overton, J., delivered the following opinion of the Court:

The counsel for the plaintiff insist that the Act of 1809 is unconstitutional, and therefore ought to be disregarded, and that, consequently, a mandamus ought to be issued.

On the fullest consideration of this subject by the Court, it does not seem that one is necessary in consequence of the other.

The Legislature, by the Act of 1807, ch. 2, prescribed a mode for the purpose “of judging and ascertaining the validity of warrants and other legal evidences of unsatisfied claims to lands within this State.” An officer of high responsibility was appointed by the Legislature for this purpose. After a full investigation of the evidence, he was authorized by law to declare claims invalid or otherwise; if the latter, he was to issue a warrant from under his hand, attested by his clerk. A warrant thus issued is assignable, and grants may issue to the assignee in consequence of such assignment.

Whether fraud could be imputed to Dillon, who obtained the warrant, is not material with the Court; the petitioner being a bona fide assignee for a valuable consideration without notice. But if it were necessary to inquire into this point, it does not appear. The Act of 1809, upon which a refusal to issue a grant is bottomed, does not assert it; it only says that the grant to Donnelson, which enabled Dillon to get this warrant, was grounded on an entry of five hundred instead of five thousand acres. Now this might have been the fact and Dillon perfectly innocent. The presumption is that he purchased in confidence of the grant to Donnelson, which was for five thousand acres. It is not presumed, nor was it required that Dillon should know on what kind of a warrant that grant was bottomed. The grant itself does not refer to the entry on which the Act of 1809 says it was founded. No doubt Dillon showed the commissioner of land claims a regular conveyance, or conveyances, to prove that he was entitled to the five thousand acres expressed in the grant. We are bound to presume this, as the commissioner, who was a public officer particularly intrusted for this purpose, issued his warrant, which is conclusive evidence with all the world that the claim was a good one. It was an act of the State by one of its agents.

With this evidence Dillon was enabled to sell to Williams, the petitioner, upon a common principle of equity, that when one of two innocent persons must suffer, it ought to...