Hamner v. Eddins , 3 Stew. 192 ( 1830 )

By JUDGE TAYLOR.

Several errors are assigned by flamner, some of which are unimportant; all that are at all material will be noticed in their order.

The 1st. is that “the writ is defective and improper.” After a defendant has appeared and pleaded to the declaration, he cannot be permitted to go back to the writ for the purpose of arresting or reversing the judgment. The writ will only be looked to, in such cases for purposes of amendment. This has often been decided by this Court; and even were there no writ, the defendant will be considered as having- waived all advantage from the irregularity by pleading to the merits.

Second assignment. “The declaration is defective and ' wholly insufficient; variant from the writ and the indorsement, and is for lands not demanded in the writ and in-dorsement.”

This assignment is understood to embrace the difference in the description of the land in the first two counts of the declaration, and to allege a defectiveness in the description itself. The first count, describes it as “the west half of the north-west-quarter of section one, township twenty-two, and range len west, (Coffee’s survey) in the Tuscaloosa land district,” &c. The second count describes the land as follows, viz: “the west half of the ¡north-west quarter of section one, township two and range ten west, (Coffee’s survey) in the Tuscaloosa land district.” The difference in the description is, that in the first count the land is described as lying in township twenty-two, and in the second as lying in township two. The survey .of the public domain is a part of the history of our country. The law informs us that each township is six miles ¡square, and that the lines of eacli range run parallel with each other; of necessity Ihcu there is an hundred and twenty miles between the first section in township two, and the fii\st section in township twenty two. This proves that there is a mistake in one of the counts, and by turning to the indorsement on the writ we find that the tract sued for lies in township Uventy-iwo, which is actually within the limits of the Tuscaloosa land district, and the mistake is thus corrected. Where there arc different counts in the declaration in an action of trespass to try titles, it is certainly the hotter practice for the count on which a recovery is had to bo specified in the verdict; but this case this certainly is nota ground for reversal. As the sufficiency of the description of the land sued for, is believed that it could not have been better described. Our lands are so accurately laid off, that it is only necessary to know what subdivision is claimed, and with the of the maps of the country preserved in the different offices, and to which parties can always have access, there will be little difficulty in identifying it.

The third assignment is, “the jury were not competent to try the issues; they not being freeholders.” The parties were certainly entitled to a jury of freeholders, but for aught that appears in the record, the verdict may have been rendered by such a jury. It is a sufficient answer to this assignment, however, that there was no objection to .any of the jurors in the Circuit Co.urt.

Fourth assignment. “The verdict is uncertain, informal and insufficient.” The verdict finds that .‘'‘the defendant is guilty of the trespass and ejectments in the plaintiff's declaration, mentioned in manner and form as the plaintiff against him hath complained.” This is that it is necessary the jury should find by their verdict. If a sufficient cause of action is contained in the declaration, then the verdict sustains that cause of action, by finding that the plaintiff had proved it to the .satisfaction of the jury.

Fifth assignment. “The judgment is informal,uncertain and insufficient, and does not shew with sufficient .certainty what lands are recovered.” That the judgment is informal is certain, the recovery of the land should have been plainly expressed in it, but this is not done; it however adjudges to the plaintiff the .damages found by the jury, and the writ of habere facias possessionem. There is enough, therefore, plainly to evince the intention of the Court, and this is.sufficient.

The sixth assignment is considered as disposed of with the second.

The seventh is the only material one which remains to be considered. It is in these words, viz: “the Court erred in the several opinions as expressed in the bill of exceptions, and should not have permitted the several pieces of paper evidence which were objected to, to go to the jury, but should have rejected the deposition of the witness Peery. The paper evidence referred to in the assignment is copied into the bill of exceptions, and purports to be copies of the field notes made out by the Surveyors, who surveyed townships numbered 21 and 22 in range 10, in the Tuscaloosa land district. The field notes relating to each township were exhibited separately, and were entirely unconnected with each other. At the bottom of the last page of the first paper, which purported to contain a copy of the field notes relating to township, 22, was this entry “examined, John Coffee, surveyor.”

William Gould, the Register of the Tuscaloosa land,'district, who by virtue of his office is superintendent of the land sales within that district, was introduced as a witness, and deposed that the said notes of survey of township 22, were obtained by the plaintiff from his office, where they were kept; that he received them by mail, under cover directed to him, accompanied by a letter in the following words, which he produced.

“Survsyoh’s Office, Florence, Aea. 7 14th January, 1826. 5

“ Sir: Herewith you will receive the field notes of twelve townships of land, to wit: townships No. 22 of ranges No. 6 to 17 inclusive, and which have been sold at Tuscaloosa.

(Signed) JOHN COFFEE.”

The bill of exceptions states that no other evidence was offered concerning said notes, and no signatures were proved.

That other paper purported to be a similar copy of the field notes relating to township 21, at the bottom of the last page of which was a memorandum as follows, viz: “examined; John Coffee, Surveyor, by James G. Weakley, Chief Clerk, Surveyor’s office.” Relative to this paper, Mr. Gould testified that it was in his office at the time of bis appointment. In the land laws of the United States, page 421, we find the following provision. “Every Surveyor shall note in his field book, the true situation of all mines, saltlicks, salt springs, and mill seats which shall come to his knowledge; all water courses over which the lines he runs shall pass, and also the quality of the lands. These field books shall be returned to the Surveyor General, who shall therefrom cause a description of the whole lands surveyed, to be made out, and transmitted to the officers who may superintend the sales.”

If these papers were admissible as evidence they must be made so by some rule of evidence relating to publie documents. Public documents are cither of record or not of record. It is not material as to the result of this investigation, whether the field notes which are returned to the office of the Surveyor General, shall be considered as belonging to the former, or latter of these divisions; but it is probable as respects the mode of proof, they may correctly be considered as records. Records may be proved either by mere production or by copy. In 1st Star-kie 151, we are told that copies of records are either, first, exemplifications, or secondly, copies made by an authorized officer, or thirdly, sworn copies. Exemplifications are always proved by the seal of the office at which they are made out. These papers do not come within this description, for it is not pretended that there is any official seal known to the office to which field notes are required to be returned.

They do not come within the description of copies made by an authorized officer. The law does not require the Surveyor General to have copies of the field notes, which’ are returned to his office, transmitted to the officers who may superintend the sales; but that from such field books he shall “cause a description of the whole lands surve)?ed, to be made out and transmitted to such officers.” According to the law therefore, it is left to the Surveyor General to extract from these notes so much as he may think proper, and to vary the language used in them in such way as he considers calculated to give the best knowledge of the lands. Taking it for granted that the papers which were offered in evidence emanated from his office, but it is far from being certain that there was sufficient proof of this fact, still they could not come within the description of copies of records issued by an authorized officer. It follows, therefore, that nothing but a sworn copy of the field notes, taken from the originals in the office of the Surveyor General, would be legal evidence. The Circuit Court, therefore, erred in permitting these papers to go to the jury.

The point relative to the deposition was not argued, and therefore is not considered in the decision. Let the judgment be reversed and the cause remanded; in this opinion the Court is unanimous.

Reversed and remanded.

Judge Ceenshaw, not sitting.