Polk v. Hill

OPINION OF THE COURT. Viewing the manner in which the consideration is usually expressed in grants, we are of opinion that the consideration of ten pounds is sufficiently intelligible. There are usually but three kinds of consideration — fifty shillings, ten pounds, and military. It will not admit of being construed as founded on the first and last of these claims; it must of necessity be the second; on this ground the grant cannot be rejected.

We are of opinion that the plat annexed to the grant is not an essential part of it; if recurred to it must be for the purpose of explanation, and not to destroy its validity. So it is in relation to the cases read by the plaintiff’s counsel; they relate to papers referred to in a deed or instrument of writing. In considering the papers thus referred to as part of the instrument, the court goes on the idea of supporting the existence of the deed. Here we are asked to permit parol and extrinsic testimony with a view of destroying the existence of a grant. This, consistently with the principles of law, cannot be done. Once for all, we wish to be understood that no kind of evidence can be received to impeach the validity of a state grant except an ■ entry.

And per TODD, Circuit Justice: If this point were res integra, I should be strongly inclined to think an entry could not be received in evidence in ejectment, under the acts of 1790 (chapter 20) and 17S7 (chapter 23).

BY THE COURT. The general principle of law is that evidence dehors cannot be received to impeach the validity of a grant. The exceptions to this rule are collected in 1 Ponbl. 122, c. 2, § S, in notes. The ground of these exceptions arise from acts which are contra bonos mores, malum in se, or malum prohibitum.

None of the objections taken by the plaintiff fall within the exceptions; the general rule of law must apply. It was understood that the practice of admitting an entry in evidence in ejectment originated in the construction of the acts of 1786 and 1787. The decision at Jonesborough in the year 179S (Russell’s Rep. v. Blair) was founded on the ninth section of the act of 1777 (chapter 1). The decision, however, was strenuously arraigned, which produced an abandonment of the ground on which it took place, and that furnished by the acts of 1786 and 1787 taken in its stead. See 1 Overt. 419. This principle having obtained in practice, the court was not inclined to disturb it, whatever ideas might be entertained respecting, the true construction of those acts. In questions arising under the land laws, the court was informed that it was the only exception to the general rule of law which had obtained in the state courts. No such principle had been established in any state where there were courts of equity, and we think no other exception should prevail. In the procurement of land titles the law requires many things to be done by its officers which are directory. To impeach the validity of grants on the ground of non-compliance with these parts of the law would be attended with great public inconvenience. See 1 Burrows, 447. The state has intrusted certain officers of government, and the law presumes, as it respects points of regularity, that what they have done was authorized and correct, as the acts of surveyors, chain carriers, markers, etc. We take a distinction between an entire want of authority in the officers issuing a grant, and whether it were regularly done. Where limits are assigned for the appropriation of particular species of claims, as the military lands and other kinds of claims are granted, such grants are merely void, as in the case referred to at the bar. (Hughes, 39, 203.) There would be an entire lack of authority to grant such lands. So of the lands set apart for the use of the Indians. It would be of very mischievous consequence to society if the propriety of issuing grants could be inquired into on the ground of irregularity. There is a sound distinction in law between acts which are absolutely void and such as are only voidable. On general principles grants are not void on the ground of fraud or irregularity in obtaining them, but voidable by those who are injured.

The English authorities show there are two kinds of grants. One made on the suggestion or surmise of the person applying for a grant; in this case the suggestions are stated by way of recital; the other kind, made on the king’s own knowledge, and contains his affirmation simply. The grant objected to is of the latter kind, which cannot be defeated by any extrinsic testimony. The court cannot inquire whether the consideration were paid or not, the deputy surveyor duly authorized, or whether the lines of the tract be too long. The statutes of North Carolina relative to the appropriation of lands must be construed pari materia. Defects and doubtful points arising out of one act may be supplied and explained by clauses in the same or other acts. The act of 1783 (chapter 2) seems to have been correctly considered by the defendant’s counsel. In general this act is not insulated in its provisions; it revives and amends the laws respecting county offices; in addition ojiens John Armstrong’s for the sale of the western lands at the same price paid for lands in the county offices. We cannot perceive that the ninth section of the act of November, 1777, (chapter 1), affects the case any way.

The court deems it unimportant to inquire whether the two acts of April and October, 1784, respecting removals, be intended in the one case to operate in future and the other in the past tense. ’ These clauses are geneial in their operation, and not confined to any species of land claims. Taking the whole of the land laws of North Carolina into view, it appears to have been the intention of the legislature that claimants should get other vacant land in lieu of what might be taken by better claims, or that they should receive a pecuniary compensation for the part lost. Nor does it appear to us that the acts of April, 17S4 (chapter 14, § 7). and October, 1784 (chapter 19, 5 7), repealed the act of April. 1778 (chapter 3, § 2), which directed the entry takers to refund in case of loss; the latter acts were cumulative. If the usual rules of construction left this point doubtful, the act of North Carolina, 1793 (chapter 23, § 5), would remove every .difficulty on this ground.

What would be the situation of things if removals were not permitted? Enterers of lands in the counties of Washington, Sullivan and Greene would be without remedy. The proviso to the fifth section of the act of North Carolina of 1791 (chapter 21) expressly says that moneys shall not be refunded, agreeably to the act of April, 177S (chapter 3, § 2), for lost lands in the ceded territory, now the state of Tennessee. Besides, the act of North' Carolina of 1793 (chapter 2) puts an end to refunding in case of loss, and leaves in force the remedy by removal alone.

A court of equity is the proper tribunal for avoiding a grant; there the parties are apprised by the pleadings of the nature of the complaint and defense, and come prepared to the contest In ejectment legal title and boundary only come in question. The case of Witherington v. McDonald. 1 Hen. & M. 307, is a solitary case, without authority. Nor did the judges of the court of appeals in Vir.ginia, in reviewing this case, appear to be satisfied with it. The case then before the court •did not make it necessary to give a decisive opinion on it; but considering what dropped from the court incidentally, it is plainly to be inferred that a majority of the judges did not think it was law. In North Carolina it appears the courts will not receive extrinsic testimony to impeach a grant. This practice is founded on the general principle of law, •and we are not inclined to go any further than the practice of the state in furnishing exceptions to this general rule.

[NOTE. This cause was subsequently carried to the supreme court on writ of error, when the judgment of this court was reversed. 9 Oranch (13 U. S.) 87. The cause was again heard on the subject as to tbe admissibilty of duplicate warrants and of entry taker’s books to prove forgery. In that ease there was judgment for defendants. Case No. 11,251. But on writ of error to the supreme court the judgment was reversed. 5 Wheat. (18 U. S.) 293.)

Contemporaneous expositions of the land laws are certainly most to be relied on. In the course of the argument we wished to be -satisfied whether county warrants could be appropriated within John Armstrong’s limits, we are satisfied on this ground that they can, not only from considering the whole of the land laws together, but the usage and practice in North Carolina in granting lands is ■corroborative of this idea.

It is objected the state of North Carolina ■could not issue a grant for more than five thousand acres, and the third section of the .act of November, 1777 (chapter 1), and Act 1783, c. 2, § 9, have been referred to in support of this objection. These statutes are •directory as to the quantities to be entered, The act of April, 17Si (chapter 19, §• 3), is a .general law, and not confined to swamp lands; its language is general, and we see no reason why a restrictive interpretation should take place. After removal and consolidation ■of entries the third section does not limit the quantity to be surveyed in one entire tract. The act being posterior in date to those directing the quantities to be entered in the respective offices, and taking into view the practical interpretation of this section bv tbe state of North Carolina, we are of opinion the grant is not void on this ground.

And per M’NAIRY, District Judge. Independent of this act, he should be inclined to think the grant would not be void. The «.cts of April and October, 1784, which authorize removals, contain no negative words .respecting consolidation; if a man has pur■chased several entries which would have been lost by better claims, and is under a necessity of removing, no reason can. be seen why he may not survey such removed claims Adjoining each other; the law does not forbid this; different grants may issue to the same person for the lands thus adjoining; the effect is the same as if only one grant had issued; for if the same man can appropriate to himself a body of adjacent land 'by different entries and different grants, it •amounts to the same thing in substance as if but one grant had issued; the land appropriated by the same individual is precisely the same, whether conveyed by one or many grants. At best it can only be matter of form, and for this to avoid a grant would be absurd.

PER CURIAM. The cession act leaves things as to perfecting land titles precisely as they were before its passage. In doubtful cases usage may be safely recurred to, in order to ascertain the meaning of the legislature. Of such force and importance has this principle been considered that the supreme court of the United States, in a case which came up from the ’ state of Pennsylvania, adhered to practice or precedent, though contrary to their understanding of the law.

And per M’NAIRY, District Judge. Where statutes declare that proceedings shall be void, he was inclined to think they should be considered absolutely void either in law or equity. The acts of 1780 (chapter 20) and 1787 (chapter 23) enact that when grants shall be obtained on younger entries to the prejudice of older ones, such grants shall be void and utterly of no effect. The circumstances disclosing the avoidance, he was of opinion, might be shown in a court of law as well as in equity, in the single case of an older entry under these two statutes;

The grant to Sevier .was read; the counsel for the plaintiff excepted to the opinion of the court on the ground of the first ten objections, and prayed a writ of error to remove the cause to the supreme court of the United States.

Verdict for the defendants.