Opinion
November 1805.
If courts of law permit equitable matter to be given in evidence in ejectment, the jurisdiction of courts of equity is not thereby affected. [Acc. Hendrick v. Dallum, 1 Tenn. 428; and Parish v. Cummins, 11 H. 298, citing this case.]
CAMPBELL, for the defendants, in support of the first cause of demurrer, relied upon Mitford, 136; 2 Atk. 210; 1 Har. Ch. 404.
The bill is only sworn to by Samuel Wilson, and not S. Wilson, Sen. Nothing is said respecting the costs in the bill. The elder plaintiff ought to have sworn to the bill. It will be recollected that there has been but one ejectment, which it is admitted was terminated in the year 1804. The bill does not state there is any expectation of being able to procure copies of the entries by the appointment of a proper officer. Mistakes of this kind can as well be inquired of at law as here; the rules of evidence are the same in both courts.
Parol proof can no more be received here than there. There was complete remedy at law, and, in concurrent jurisdictions, an election must conclude. 1 Hay. 370. In equity a sheriff's deed may be examined.
1 Hay. 233.
A court of chancery is not a court of errors.
1 Hay. 368.
He particularly relied on the case in Hay. 370, that where a defendant has his concurrent remedy at law he shall not go through a suit there for the purpose of experiment, and then come here, If either principle, mode, or proof skull be defective at law. the plaintiff ought to have come here at once.
The bill does not take the ground of objecting to the title. It makes no such case, nor does the bill state the want of adequate remedy at law.
WHITESIDE, for the plaintiff, admitted that the bill was not artificially drawn, but that its substance was sufficient. Possession is as good a foundation of title for plaintiff as defendant. It not only bars, but gives right, when connected with title.
Ird. Rev. 13; Run. Eject. 14.
Twenty years' possession in England is not only a negative bar, but a positive title.
The main ground in this bill is, that we have the oldest entry but the youngest grant. Though the subject might have been inquired of at law, the investigation could not be conclusive, it could not put an end to litigation; therefore we had a right to come here to be put at rest. The question is not now respecting the injunction. This court will relieve in case of accident; which has been proved to exist in this cause, in relation to the want of an officer to give copies of entries. The case in Haywood shows that objections to a judgment may be taken advantage of in ejectment. The case in page 370 only shows that a matter purely legal cannot, after a trial at law, be transferred to this court. In this case there are two solid equitable grounds disclosed: accident, in not being able to procure evidence of mistake; and, secondly, having the oldest entry but the youngest grant. The case in Haywood properly belongs to a court of law. In this case no court but this can give adequate relief.
CAMPBELL, in conclusion. — If a case has been decided at law, this court, as a court of errors, cannot reverse the decision. It can no more relieve against a mistake in the number of the entry made by a third person than a court of law. As to the accident, as it is called, in refusing evidence of the mistake, this court would do the same; at all events they have no more power than the court of law in such cases. They cannot decree a conveyance until the verdict is set aside at law, for that shows the plaintiffs have no right.
If the injunction cannot be sustained the demurrer must.
[ S. C., 4 Hay. 182.]
In Equity. — The bill stated that the plaintiff, S. Wilson, Sen., was entitled to two tracts of land of 640 acres each, upon county entries, No. 13, for 640 acres, of which 513½ acres were granted to him; another entry of 640 acres, No. 946, transferred to the senior plaintiff, of which 615 acres were granted to the plaintiff senior. That the elder plaintiff had been in possession of part of the land included in both grants since the year 1790, and indeed had exercised various acts of occupancy since the year 1785.
The defendants claimed under Brooks, whose entry is younger than the plaintiff's, but the defendant's grant is the oldest.
Samuel Wilson, Jr., purchased these lands under the elder Wilson's title, and procured two deeds from the sheriff under dates of the 29th May, 1801, and 20th of May, 1803.
The plaintiff, Samuel Wilson, Sen., had been in possession seven years and upwards, before the ejectment brought by the defendants in the year 1800, but of this he could not avail himself at law, as the Court would not permit of his giving his title in evidence, on account of a mistake in the surveyor, who recited in his certificate of survey annexed to his grant that the survey was made by virtue of an entry, No. 964, instead of 946, the true number; nor was it then in his power to show that this was a mistake, by procuring copies of the two entries, there being no officer to give copies.
The bill stated, that, on account of this mistake, there being no officer to issue copies of those entries, the Court refused this evidence of his title, and consequently he could not avail himself of his possession That he is in danger of being turned out of possession by a writ of habere facias possessionem, upon the ejectment brought against him, Samuel Wilson, Sen., alone. The bill prays for an injunction, that the interfering lands may be conveyed to the plaintiff, junior, and such other and further relief as the nature of the case may require.
To this bill the defendants demurred, because it appeared, by the bill, that S, Wilson, Sen., has no interest or claim in the land in dispute; the validity of the grants and entries, under which the plaintiffs and defendants claim, was merely triable at law, and, it must be presumed, was examined in the trial of ejectment. A court of equity can give no relief in case of a mistake of a surveyor, but what a court of law could have done; so far as the plaintiff relies on the statute of limitations of seven years, it is matter triable at law alone, and is no ground of equity; and, finally admitting the allegations of the bill to be true, there is no ground upon which a court of equity can decree.
This case must be considered as if there were no prayer for an injunction; nor is it material to consider it in relation to the proceedings at law.
There are four special causes of demurrer.
1st. That S. Wilson, Sen., has no kind of claim to the land in dispute, and therefore has no right to call the defendant into this court.
2d. The plaintiff might have had relief at law, being properly triable there.
3d. In relation to the mistake, no relief can be had here but what might have been obtained at law.
4th. The plaintiff might have availed himself of the statute of limitations at law, being properly triable there.
The second and fourth causes of demurrer may be considered together, the substance being the same. Upon the ground that the plaintiff had remedy at law, we are of opinion, that, taking the whole of the bill together, these causes of demurrer are not sustainable. As to the circumstance of accident, in not being able to procure a copy of the entry to show the mistake of the surveyor, the bill seems to be proper.
The correction of mistakes in titles is properly a subject for the interference of a court of equity. The general principle is, that, at law, relief cannot be had in such cases. Our practice permits a younger grantee to compete with an older one in ejectment, how correctly it were useless to examine now. The subject, to wit, an entry, was originally equitable in its nature, and the remedy of the younger grantee having the oldest entry was in equity.
See 3 Dal. 456, 464; 2 Call, 310; 3 Call, 259, Vincent's Lessee v. Conrad; American Law Journal, Taylor v. Bodlay et als., Sup. Ct. U. S. Feb'y, 1812.
Since the year 1798 our courts of law have assumed jurisdiction in cases of this kind; they had it not before, nor is it conceived there was any statute giving this power.
Though courts of law have taken cognizance of the rights of the younger patentee having the oldest entry, it does not oust a court of chancery of its original equitable jurisdiction. The equity remains though a trial may have taken place at law, if justice has not been done the equitable claimant there; if, owing to any defect in the forms of legal proceeding he did not get justice, it is sufficient for us to see it; justice must be done, and the principles of the land law administered alike to all. Nor is it material from what cause injustice has arisen when the complainant is coercively drawn into a court of law, and the matter of complaint did not originate from his negligence. Had he been plaintiff there, the case might have presented a different aspect. Then indeed it would seem that, having made his election of the forum, he should satisfactorily show here insurmountable obstacles to the attainment of justice; such at least as ordinary diligence could not overcome. These observations are applicable here after discussion of equitable rights in a court of law; or questions which are not purely of a legal nature. If the principles of the present practice in ejectment, in permitting evidence of an entry to be given on the part of the younger grantee, be rightly understood, it would seem to authorize the introduction of any equitable proof to avoid the eject of the oldest grant; we know every day's practice admits such evidence. As the younger grantee is permitted to adduce equitable proof under the general issue, his adversary must of course be allowed to introduce similar evidence to rebut. In this state of things, if a court of law determine contrary to equity, recourse must be had somewhere. It would seem that if a jury, acting upon a complicated mass of equitable testimony, should err, and persist in it, remedy should be had in equity. Suppose however the case were purely legal and of sufficient value, equity would entertain jurisdiction, if, in the trial or proceedings at law, the complainant had been prevented from getting justice by some obstacle which he could neither surmount nor control by ordinary diligence and prudence; but it must, in this last case, be set forth in the bill, so as to transfer the jurisdiction over the subject-matter from a court of law to a court of equity. Under circumstances purely legal, either party ought to have access to this court where justice has not been done, and the matter in dispute is of sufficient importance to require its interposition, upon the bill disclosing sufficient ground why justice was not obtained at law. The demurrer must be overruled.
See 3 Bro. C. C. 218; 2 Hen. Mun. 263; 1 Call, 500, 560; 2 Call, 310; 3 Call, 259; 2 Wash. 121; 3 Dall. 456, 464; 4 Dall. app. VII.; 1 Ch. Ca. 205; 2 Ch. Ca. 3; 1 Cro. 100; Hoggat v. M'Crory, ante, p. 8; Hard. 461; 4 Dall. app. VIII. XI.; Burr. 419, 423; 3 Johns. 590; 2 Caines' C. E. 51; 1 Ves. Jr. 424; Taylor v. Bodley et als.; Massie v. Watts; Taylor v. Quarles and Brown, Sup. C. U. S. Feb'y, 1812.
1 Wash. 185.
See Hardin, 461; 5 Johns. 590; 1 Ves. 424; 2 Caines' C. E. 51; Sch. Lef. 66, 204, 430; 2 Hen. Mun. 263; Gould's ed. Esp. N. P. 36, title Ejectment.
See 2 Call, 70, 224; 1 Atk. 128; 2 Str. 733; 2 Caines' C. E. 37; 2 Swift's Sys. 423; 2 Wils. Lectures, 268; 3 Hen. Mun. 83, 358; 4 Hen. Mun. 453, 470, 491; 1 Hen. Mun. 19; 2 Wash. 41; 4 Johns. 510; 1 Call, 147; Hardin, 123.
WHITE, J., absent, having been employed as counsel.
ORIGINAL NOTE. — Since this decision the courts have retraced their former steps, as will appear by other decisions, and though formerly any kind of equitable evidence was received on the part of the person holding the youngest grant, the courts will not now permit him to offer any such evidence except an entry with proof respecting its locality.