Blake v. Doherty

Mr. Chief Justice Marshall

delivered the opi-

nion of the Court. This was an ejectment brought in the Circuit Court of the United States, for the District of West Tennessee. The plaintiff made title, under a grant from the State of Tennessee, dated in 1808, which comprehended the land in controversy.

The defendants claimed under a patent from the State of North Carolina, dated in 1794, containing the following description of the land granted, viz. <{ A tract of land containing 5,000 acres, lying and being in our middle district, on the west fork of Cane Creek, the waters of Elk river, beginning at a hiccory running north 1000 poles to a white oak, then east 800 poles to a stake, then south 1000 poles to a stake, thence west 800 poles to the beginning, as per plat hereunto annexed doth appear.”

For the purpose of designating the land described in this grant, the defendants then gave in evidence the plat and certificate of survey annexed thereto, a certified copy of the entry on which the grant was issued, and the general plan or plat filed in the cause. They also proved, that this plan or plat was a correct representation of Cane Creek, of the west fork thereof, and of the land claimed by them. They also proved, that in 1806, prior to the entry on which the plaintiff’s grant was issued, a survey had been made, and a corner hiccory and white oak, and lines around the said tract., (as the defendants then claimed) were marked ; and, prior to the plaintiffs’ entry, were esteemed by the people in the neighbourhood to haye been marked as the' defendants’ land. The land in dispute lay within the territory ceded to the United States by the Indians, in 1806, and no actual survey thereof had been made previous to the emanation of the grant.

Upon this evidence, the counsel for the plaintiff requested the Court to inform the jury, that the said demarcation was not sufficient in law to locate the grant to the spot included in the said lines; and that the locality of the said lines could not legally be ascertained, either by the plat annexed to the grant, or by the entry or general plan ; but the Court instructed the jury, that the said demarcation, entry, and general plan, might be used by them for that purpose.

The counsel for the, plaintiffs excepted to this direction of the Court; and, a verdict and judgment having been given for the defendants, the cause is brought by writ of error before this Court.

As the first patentee was a fair purchaser of the quantity of land specified in his grant, and has placed his warrant, which was the evidence of that purchase, in the hands of the surveyor, a public officer designated by the State to survey the land intended t0 Srante^ 5 and as the land claimed under this grant, was actually surveyed and marked out before the plaintiff made his entry, so as to give him full knowledge of the title of the defendants, whatever that title might be ; the plaintiff can put himself only on the strict law of his case. But to that strict law he is entitled.

It is contended, that the Circuit Court erred, 1st. Because the grant, under which the defendants claim, is absolutely void for uncertainty; and, consequently, no testimony whatsoever ought to have been admitted to give it locality.

That disposition, which all Courts ought to feel, . to support a grant fairly made for a valuable consideration, receives additional force from the situation in which the titles to land in Tennessee are placed; and the Courts of that State have invariably carried construction as far as could be justified to effect this purpose.

It is undoubtedly essential to the validity of a grant, that there should be a thing granted, which must be so described as to be capable of being distinguished from other things of the same kind. But it is not necessary that the grant itself should contain such a description as, without the aid of extrinsic testimony, to ascertain precisely what is conveyed. Almost all grants of land call for natural objects which must be proved by testimony consistent with the grant, but not found in it. Cane Creek, and its west fork, are to be proved by witnesses. .So the hiccory which is to constitute the beginning of a survey of a tract of land to lie on the west fork of Cane Creek. If, in the nature of things, it be impossible to find this hiccory, all will admit the grant must be void. But if it is not impossible, if we can imagine testimony which will show any particular hiccory to be that which is called for in the grant, then it is not absolutely void for uncertainty, whatever difficulty may attend the location of it.

Now suppose this grant to have been founded on actual survey; suppose the surveyor and chain carriers to go to the hiccory claimed by the defendants as their beginning, to show it marked as a beginning, to trace a line of marked trees from this beginning around the land, and to prove that this is the very land which was surveyed for the person in whose favour the grant issued. In such a case, the right of the defendants to hold the land would scarcely be questioned. Yet if the patent was void upon its face, these circumstances could not make it good. The grant purports to have been made on an actual survey: and the non-existence of that survey, though it may increase the difficulty of ascertaining the land granted, does not change the face of the instru - ment.

It has been said, that this patent does not call for a marked hiccory, and, therefore, no' means exist of distinguishing it from any other hiccory. But it may have been marked by the surveyor, as ’ corner trees are generally marked, without noticing the fact in the grant; and it is identity, not notoriety, which is the subject of inquiry.

Could it even have been known by the patentee, or by those who might purchase from him, that the land had not been surveyed, yet a beginning corner might have been marked, and if the beginning be established, the whole tract is easily found.

We think, then, that testimony might exist to give locality to this grant, and, therefore, that it is not void on its face for uncertainty.

2d. We are next to inquire, whether improper testimony was admitted, and whether the Court misdirected the jury.

It has been determined in this Court, that the plat and certificate of survey, annexed to the patent, maybe given in evidence ; and it has been determined in the Courts of Tennessee, that a copy of the entry on which the survey was made is also admissible. In admitting these papers, then, there was no error. But the Court also admitted what is called a general plan, and a survey made prior to the plaintiff’s entry of the land as claimed by the defendants.

The bill of exceptions does not so describe this general plan, as to enable the Court to say, with certainty, what it is. If it is a plan made by authority, in conformity with any act of the legislature, it may be submitted, with other evidence, to the consideration of a jury, to avail, as much as it may, in ascertaining boundary. But the Court has also permitted what is denominated a demarcation, which we um derstand to be a private survey made by direction of a party interested under the grant, and assented to by the defendants, to be given in evidence.

This private survey might have been made on any other part of the west fork of Cane. Creek, with as much propriety as on that where it has been made. It would have been equally admissible if placed aiiy where else on that stream. To allow it any weight, would be to allow the grantee to appropriate, by force of a grant, lands not originally appropriated by that grant. This would subvert all those principles relative to conveyances of land which we have been accustomed to consider as constituting immutable rules of property.

The legislature of Tennessee has certainly not supposed that any individual possessed this power of fixing vagrant grants. In the act of 1807, ch. 2. they have enacted, that any person claiming under a grant from the State of North Carolina, issued “ On a good and valid warrant, the locality of which said grant cannot be ascertained, on account of the vagueness of the calls by the surveyor, or from the calls and corners of the said survey becoming lost or destroyed, or on account of the surveyor and chain carriers being deceased, so that the marks and corners cannot be established, shall be entitled to obtain a grant for the same quantity of land called for in said grant.”

This liberal provision would have been totally unnecessary if the grantee might have remedied every uncertainty in his patent by his own act. If under his patent he might survey any vacant land he chose, the privilege of obtaining a new patent would be a very useless one.

It is obvious, that the legislature did not suspect the existence of this power to make new boundaries where none before had been made, or where none could be found. Neither, as we understand the cases, has this principle been established by the Courts of Tennessee. The case relied on for this purpose, is the heirs and devisees of Williamson v. Buchanan(2 Ten. Rep. 278.)

In this case, Judge White was of opinion, that the land was ascertained by the calls of the patent, without resorting to the survey and marks made subsequent to its emanation. Both his argument, and his language, in coming to this conclusion, indicate the opinion that Buchanan’s claim to the land in controversy depended on it. After having come to this conclusion, howevér, he throws oilt some hints calculated to suggest the idea, that these modern marks might possibly have been considered, had the case required it, as the renewal of ancient ones which had been destroyed. But these hints seem rather to have been intended to alarm those who were taking up land held by others under. ancient grants, whose boundaries were not accurately defined, except by those modem marks, than to give any positive opinion on the point. At any rate, these suggestions were made in a case where the patent, as construed by the Judge, called to adjoin the upper line of another tract, and its general position was, consequently, ascertained. In such a case, where the body of the land was placed, its particular boundaries might be ascertained by testimony which would not be deemed sufficient where the patent contained no description which would fix its general position.

Judge Overton, who also sat in this cause, gave more importance to the marks newly made; yet5i his opinion too seems to be founded on the fact, that the body of the land was fixed by the description contained in the patent. “ Before the plaintiffs made their entry,” he said, “ new marks for a corner were shown, running from which the courses of the_ grant,'land'would be included, sufficiently notorious in point of conformity with the calls of the grant. The general description, both of the entry and the grant, reasonably agrees with the locality of the land by these new marks.” He then argues, that these new marks may be considered as replacing others which had been originally made.

The case, however, did not depend on this point, audit was not decided. Had it ever been decided, this Court would have felt much difficulty in considering a decision admitting marks as auxiliary evidence to prove precise boundary, in a case where the patent was admitted to contain a description sufficiently certain to place the body of the land, as authority for the admission of marks made by the party himself, in a case where the patent only places the land on a stream, with the length of which we are unacquainted.

We think, then, that the Circuit Court erred in instructing this jury, that they might use this demarcation for the purpose of ascertaining the land contained in the grant under which the defendants claimed, and f®r this error the judgment must be reversed.