Frazier's Lessee v. Basset , 1 Tenn. 297 ( 1808 )

Ejectment, plea not guilty. — The plaintiff produced a grant for ninety-seven acres, dated October the 23d, 1793, and several mesne conveyances, among which was one from James Wheeler to the lessor of the plaintiff, dated in August, 1797, proved in Sullivan court, in February, 1798, and registered in March, 1807. This is not a question whether the lessor of the plaintiff will have too much or too little in his grant, as has been argued at the bar. That is unimportant. It is a question of boundary, and which is the corner as originally made, of the two chestnut oaks; if the last, or at the distance of one hundred and thirty-five poles, the defendant is guilty; if the first, or at the distance of 122 poles, he is not.

The evidence on the part of the plaintiff is, that of the original surveyor, courses, distances, c. The law is, that if no line be marked, nor corner made, course and distance shall be observed;¹ this however is not in question. It is, which of the two oaks were originally marked as the corner. On the part of the defendant, it is said there are no marks between the two trees; that the last is but lightly marked, and that it is marked differently from the marks on the line, and on the first corner. That the plaintiff, about eight years ago, showed the first oak as his corner.

Admissions of either party as to matters of fact are admissible evidence,¹ but not so as to admissions respecting matters of law, for the ipse dixit of any man cannot alter the law, and loose observations as to its meaning should never prejudice. Admissions however, like every other kind of parol evidence, are subject to be compared and weighed with other evidence; and if that of a higher and more infallible nature appear variant, it may control, on the ground of mistake or misapprehension. But if others, in conforming their actions to such admissions, had acquired rights with the knowledge and acquiescence of the person making the admission it would be obligatory.

Where uncertainty attends the facts to which such evidence relates admissions attach, and deservedly have great weight.

Verdict for the defendant.

¹ 2 Bay, 515; Littel, 44; 2 Mass. 380; 3 Call, 242; 1 Hayw. 22, 238, 377, 496.

¹ 3 Johns. 223, 499; 2 Johns. 120, Gd. ed. Esp. N. P. 34; 2 Dall. 94; 4 Hen. Mun. 194; Camp. 367; 4 Johns. 143. As to admissions of matters of law, see Hardin, 282; Polk's Lessee v. Robertson and Cockrel, Federal Court West Tennessee, June, 1809, per Todd, J., infra, 456.