Ejectment; plea, not guilty, and issue. — The plaintiff claimed under a grant for 32,000 acres of land, calling to begin at marked trees, thence north 1025 chains to the north-east corner of a tract of land granted to Stokeley Donnelson, for 25,060 acres, c., and this last tract of Donnelson's calls to adjoin another in his name of 60,400 acres, which begins where the Kentucky, late the Virginia line, crosses Cumberland River agreeably to the annexed figure. *Page 24
The defendant claimed by possession only. The gram, under which
the plaintiffs claimed, issued in the year 1795. It was proved that Gordon, the surveyor of the tract, marked corners on the Kentucky line in the year 1798, but the distances to those corners were greater than called for in the grants to Donnelson and Sevier. That the tract of 32,000 acres, part of which is now in contest, lay within the Middle District. It was surveyed by a person who stated himself a deputy surveyor of the Middle District.
HAYWOOD, for the defendant, objected to the reading this grant in evidence until it should be proved that Gordon, who signed his name as deputy, was actually a deputy. If he was not a deputy, he contended the grant was void, under the ninth section of the Act of November, 1777, c. 1.
WHITESIDE, e contra, said there was no precedent of such an objection. That it would be impossible for any person to know whether he had a title, if this principle and similar ones were adopted. He proceeded at length on the ground of innocence.
HAYWOOD, in reply. — The statute appointed the surveyor, who was bound to give bond and security for the performance of his duties; and it would be unjust for any person to act as a deputy without showing proper authority. The secretary was bound *Page 25 to give credit to the person appointed, and no other.
The State might have been deceived in issuing a grant, upon the certificate of a survey by a person not authorized, and for this deception the grant may be void. It is probable there never was a case of this kind in court, so that the objection could not have arisen. The survey is signed by George Gordon, D. S., for Stockley Donnelson, D. S. A deputy cannot make a deputy. But the fact is, that Donnelson never was a deputy of the surveyor of the Middle District. The witnesses are competent. They may feel concerned in the question depending before them, but not in the event of this suit. How far their situation may affect their credit, is with the jury. It was also determined by the court that evidence of what Gordon, the surveyor, said, could not be received, and particularly to vary the grant.