Opinion
May 1809.
The elder entry which can prevail in a court of law against the elder grant must be special; and no evidence is admissible, as it respects the youngest grant, except such as relate to the identification, notoriety, or want of notoriety of the calls of the entry. In this view, personal notice of the locator is not admissible. [Acc. Reid's Lessee v. Dodson, 1 Tenn. 396; and see Polk's Lessee v. Hill, 2 Tenn. 153.]
DICKINSON opened the case for the plaintiff as in the former case.
BECK, for the defendant. — The doctrine of entries, and their legal nature, was extensively adverted to in the case of Reid's Lessee v. Dodson; I will, however, with the permission of the Court, advert to some principles which appear to be of importance. In entries containing different calls, the most prominent ought to have preference, when all cannot be complied with. Those, it is most natural for the mind to seize, and most reluctantly to relinquish. Being a principle of the human mind, it therefore results that where the land granted does not comport with all the calls of the entry on which it is founded, if it is specific and agreeable to some principal call, it is good, — as where an entry calls to begin on a certain creek to adjoin a particular tract, or a certain line, and include a spring described so particularly that it can be known. In this case, would it be thought sufficient that the claim lay on another creek eight or ten miles distant from the land, though it might include a spring answering as to marks, c, and adjoin the line of the person referred to? If in the nature of things there could not be any such spring, or that the individual owning the tract could not have any other tract of land, then the mistake of the watercourse might be corrected by the superior specialty in the call of the spring or line, — but, in the nature of things, this cannot be the case. The Act of 1786, c. 20, only enables an older special entry to overthrow a grant; surely this should be special on the face of it, not vague from the want of notoriety of its calls, or inconsistency of those that are notorious, which would produce equal uncertainty.
Har. Co. Lit. 27 b. in n. near the end.
It is of the greatest consequence that the rules of law should be settled; but as to real property, it is indispensable for the peace of society and safety of families, and in proportion to the newness of a country is the importance of this stability.
In a newly settled country, where claims for lands are numerous and of recent date, where adventurers and emigrants are endeavoring to procure as much as they can, it must necessarily result that the conflict in land claims will be obstinate, and spread over the greater part of the country. Immutable rules of law should govern every case. When uniform and permanent rules, being well defined and known, are brought to bear on every man's case alike, litigation will be lessened, peace and harmony as much as possible be preserved, and the people happy in the confidence of the uniformity and permanency of the rules by which the titles to their lands, houses, and plantations are to be decided. In fine, there can be but little difference between despotism or arbitrary will and uncertainty of law. The effect is the same, and it is of no consequence how this effect is produced. It is only under the Acts of 1786, c. 20, and 1787, c. 23, that an entry can be given in evidence in a court of law. Surely it ought to be special on the face of it to do away the solemnity of a grant from the State. If an older enterer thinks he has equity from a personal notice, a court of equity is the proper place to obtain relief, but a person cannot go into personal notice, or that distinct from the calls of the entry, in this court. It is a point of legal right, that arises under the act, and not of equity. He relied for the support of these positions on Sneed, 91, 238; Bac. Ab. tit. Statute; 1 Cowp. 278.
See 1 Cr. 100; 1 Burr, per Ld. Mansfield; 4 Dall. app. viii., xi.; Taylor Quarles v. Brown, S. C. U. S. 1812. MSS.
WHITE, on the same side. — Enterers of lands were obliged to use the names of places as they were generally understood by those who were acquainted with them, otherwise subsequent enterers might be misled. In nature, there exists a difference between natural and artificial calls; certainty in entries is indispensable, — if they contain several calls they may be mutually assistant in pointing out the place intended to be appropriated, all being consistent. One of the calls may be so highly notorious as to absorb the others, and render them unnecessary. The land may be surveyed conformably to one of the calls, but not the others. What, I ask, will be the consequence of such a state of things as the last? Is the entry to be void? By no means, if the most notorious call or calls be complied with, and provided the call or calls, so complied with, contain sufficient certainty or notoriety unassisted, or even opposed by the others. The case of Consilla v. Briscoe, Hughes, 42, does not apply, because the certificate called for his settlement, and he could have but one.
See Kendrirk v. Dallum, post.
As to giving personal notice in evidence, he solemnly protested against it in a court of law. What might be done in a court of equity he would not undertake to say. Nothing but a special entry could come within the view of the legislature, as expressed in their Acts 1786, c. 20, 1787, c. 23; these acts he conceived should be construed strictly in favor of the elder grant.
HAYWOOD, also, for the defendant. — He gave a history of military claims. In 1780, there was an act passed declaring that the officers and soldiers should be entitled to lands, though that act does not appear in Ird. Revisal. In the year 1782 is the first act we find on the subject. It appointed commissioners, and, among other duties imposed on them, directed that they should lay off the bounds within which the officers and soldiers were to lay their warrants. In 1783, they ran a line, with which the officers and soldiers were dissatisfied. In consequence of which the legislature appointed other commissioners, who ran a line more southwardly than the former. It is the first line which Tatum's entry calls for.
The Act of 1786, c. 20, is the first which permitted an older grant to be examined in a conflict with an opposing older entry. Previous to this act the older grant held against all the world. The legislature before this time never contemplated a remedy, either in law or equity, against the oldest grant. Before the emanation of a grant, they had an equitable remedy by caveat. This method combined every possible advantage, either in law or equity. It is directed to be by jury of the vicinage on the disputed land where equitable as well as legal circumstances may be given in evidence. If this failed, and the party had missed his time, he might at any time before the emanation of a grant have entered a caveat before the governor. After all these opportunities given by law the legislature surely intended the eldest grant to be conclusive and final. The language of the different acts conveys this idea; and it was reasonable that it should. So cautious were the legislature that they would not extend the remedy in favor of an older entry by the Act of 1786, c. 20, further than to the western country and for two years. When, at the next session, they found that the caveat provisions were insufficient to meet the exigencies of society, resulting from the situation of the country, the legislature passed their Act of 1787, c. 23, which extended the principle of the Act 1786, c. 20, to the whole State and without limitation of time. The Act of 1786, passed in November, and the grant to Mabane, issued in March of the same year. Our grant had issued before the act, and could not be affected by it. It must be governed by the principles of law which existed at the time it was issued, and those principles did not permit it to be contested either in law or equity.
We insist, as it respects the entry, the most notorious call should be conformed to. Suppose the entry were made to be on Cumberland River, two miles below the month of the Caney Fork, including the Black Fox's Camy's this entry would have two special notorious calls, but incapable of being included hi a survey, — can this entry be good? It surely cannot. The calls are equally notorious, and consequently do not admit of distinction nor solution. A subsequent enterer, from the uncertainty produced by the entry itself, is kept off from both places. If he goes to Cumberland River, the first enterer claims there, — he goes to the Black Fox's Camp. it is the same thing. In procuring a title from the State, the making the entry is the only act required of the claimant; the entry surely ought to be special, — the survey and grant are by officers of the State, without the agency of the claimant. Hence, he concluded that where calls are equally notorious the entry would be vague; and the same consequence would follow if calls of superior notoriety were abandoned. It is the fault of the enterer if he does not make his entry explicit. If Little Harpeth is rejected, the antecedent running up said river must also be rejected; and then it will have no other specialty than lying above A. Tatum's line, which is too vague. He relied on the case of Weakly's Lessee v. Wilson and Simms, and Vincent's Lessee v. Conrad and others.
The latter published in the Am. L. Journal, second series or vol. iv.
GRUNDY, for plaintiff, in conclusion, spoke at great length with respect to the alteration that appeared in the plat annexed to the grant of the defendant. Our claim is fair and clear of imputation, but theirs is not so. In argument, as it respects this case, the counsel seem to have abandoned their first entry, and it is correct they should, for it was certainly void; there was no law authorizing the splitting of warrants at that time. As it respects the priority of entry, we have the preference of course. But it was agreed by the Court, in the case of Reid's Lessee v. Dodson, that, as to locations previous to the act for opening an office for entries, they should take date as entries from the first day the books were opened.
It is certainly of material consequence in this case that there was personal notice. It has been proved that Robertson, the locator of Mabane's claim, knew where Tatum's land lay at the time he made Mabane's entry; and as Reid's entry calls for Tatum's, he must be presumed to know that also, as there was a connection between the two, and that of record. The doctrine of ambiguities laid down in all the books will throw light on this subject, and clearly show the weakness of the ground of objections on the part of the defendant, with respect to the certainty of an entry. Patent ambiguities are such as appear upon the face of the writing, and cannot be helped or aided by parol proof. But it is not the case with respect to latent ambiguities, or such as arise, not from the instrument itself, but from the proof respecting it. As the uncertainty arises from proof it may be explained by proof, is the dictate of law and sound reason. Apply these principles to the entry; our entry is good on the face of it. — there is no ambiguity nor uncertainty to be found there. It is not the entry that discovers to us where A. Tatum's claim is, but parol proof; and this proof may be explained according to the principles of law. Our entry is not therefore vague. The uncertainty which is objected arises from parol proof, adduced by the defendant, and this proof we have sufficiently explained, by showing not only personal notice but the superior notoriety of A. Tatum's line. Suppose an entry calling to include a tree on the waters of Duck River, without any other description. This is what he should call a vague entry, and no proof, whatever could make it good. Suppose a further case: There are two Barton's creeks, and an entry calls to lie on one of them, and containing otherwise a particular description. At the time of the entry the locator knew of but one creek of that name; no person will contend that such an entry is void. So he conceived of the case before the Court. In the entry of the plaintiff are two calls, and let it be admitted of equal notoriety, though Tatum's claim was the most so; if he complied with either it was sufficient; there is certainly a great distinction between general and special calls: one is only assistant, the other essential and locative. He admitted, that, of two special or locative calls, one calling for a natural and the other for an artificial object, the first must be complied with. But this was not the rule in relation to general calls, as rivers, creeks, or waters. These general calls may be controlled by special artificial calls, as in Concilia v. Briscoe.
Ejectment. — The title papers and evidence the same as in the preceding case.
It is not necessary to repeat what was said respecting the entry of the plaintiff, in the case of Reid's Lessee v. Dodson, as the arguments now used, have not produced a different view of the subject. There is one point made in this cause which was not adverted to in the other case. The counsel on both sides admit that before the Act of 1786, c. 20, there was no statute authorizing an entry to be given in evidence in' a court of law; nor in fact to look before the grant. This is certainly true. And further, I shall take the liberty of adding, the legislature never designed by their Acts of 1786, c. 20, or 1787, c. 23, to impeach a grant in a court of law. It is however stated in the argument of one of the counsel for the defendant that there was not any remedy before those acts in favor of the elder entry, either in law or equity. This is believed to be incorrect. The cases in 1 Haywood, 107, 135, 359, 375, 456, 498 show that there was remedy in equity for the elder entry before the passage of the Acts of 1786, c. 20, and 1787, c. 23. Those acts were only declaratory of the effect, and did not mean to alter the remedy which existed before. The words as to this purpose are of the same import as the statute of 13 Eliz. c. 5, and the 27 Eliz. c. 4, respecting fraudulent conveyances; and it is well known that those statutes did not alter the mode of redress; that remained the same as before the act. See Rob. on Fraud Conveyances. This statute is in affirmance of the antecedent law; and Lord Coke, in 2 Inst. 308, says that a knowledge whether a statute be introductive of a new law, or affirmatory of the old, is the very lock and key to let open the windows of the statute. Affirmative statutes, without any provision as to the mode of redress, leave the law in that respect as it stood before. The distinction which applies to such cases, is, where the statute creates a right which did not exist before, and prescribes a remedy, that remedy, and no other, must be pursued; but in relation to pre-existent rights, a statute is never construed to be alterative of the mode of redress unless expressly directed. Pool v. Neal. The course of proceeding however, for about ten years, has been different, and courts of law have assumed concurrent jurisdiction with courts of equity, and to this course we must conform. Believing, as I uniformly have, that it never was a sound interpretation of the law to permit the introduction of an entry in a court of law, I shall deem it my duty to accord with such opinions of the Court as may approach nearest to that tenet. Hence, the next step with me will be to reject every species of evidence as it respects the case of the youngest grant contending with an older one, except such as relate to the identification, notoriety, or want of notoriety, of the calls of an entry. In this view, personal notice of the locator is not admissible.
Vin. Ab. tit. Statute E, 6; 11 Co. 61, Foster's case; Cro. Eliz. 104, Griffith v. Apprice; 2 Sid. 63, Pool v. Neal; Plow. Com. 113; Bac. Ab. tit. Statute G.; 2 Ves. Jr. 563; 2 Show, 30, King v. Stanton.
Hardin, 13, 75, acc.
Much reliance has been placed by the defendant's counsel on their grant being anterior to the Act of 1786; and on that ground the entry of the plaintiff ought to be excluded altogether. It is, to be sure, a maxim that nova constitutio facturis formam imponere debet non prœeteritis. But statutes may be retrospective, agreeably to the common law; and the Statute of 1786, c. 20, is as clearly so perhaps as any that ever was penned. The words used are heretofore or hereafter, and completely embraces the case before the Court. The only rational construction which the act could have, on the ground of its being introductive of a new law, would be a change as to remedy, not a divestment of right; the legislature were competent to the one but not to the other.
10 Rep. 65, Chancellor of Oxford's case.
They might, if they thought proper, have translated the remedy in favor of the oldest entry, from a court of equity to a court of law; but by no legal construction, it is believed, can such an inference be collected from the act.
The practice of introducing entries in evidence, under the Acts of 1786, c. 20, and 1787, c. 23, he believed to be correct, and founded in principles of law; but he was for confining evidence strictly to the calls of the entry, agreeably to the opinion before delivered. As it respects statutory provisions, I am unable to see a distinction which has been frequently adverted to, between void and voidable. If a statute declares a thing void, it would be proper to so consider it, whenever it came before a court of law or equity, in the course of judicial investigation. The Court cannot shut their eyes against the provisions of such a statute, and tell a suitor that his remedy was in equity. As it respects the plaintiff's entry, suppose the call of Little Harpeth River were rejected, it will then refer to A. Tatum's line. The jury must be satisfied there was such a line, or one potentially existing through some legal claim, as an entry.
Verdict for defendant.
A mistrial having taken place in the case of Reid's Lessee v. Dodson, depending on the same principles, the Court granted a new trial in this, in order to give an opportunity for further investigation, and to preserve uniformity of decision in both cases.