Opinion
March 1805.
If land be sold under several executions, all of which are void except one, the one that is unexceptionable will support the sale, even though founded on a judgment for costs. [See Wallen v. M'Henry, 2 Y, 313, where this case is cited.]
A deputy sheriff may lawfully sell land levied upon by him by virtue of an execution in his hands; and he may convey it by deed without naming the sheriff; but the deputation must be shown, which, however, in controversies between third persons, need not be by deed.
Judgments do not bind beyond the jurisdiction of the Court in which they are rendered, nor after they become dormant.
A judgment binds lands within the Indian limits, if within the county or district in which the judgment was rendered.
A deed executed by an attorney, under a power, is not vitiated by a misrecital of the power, if the subject-matter conveyed is well ascertained, and a power was in existence.
But, semble, the deed is a nullity if the attorney has exceeded his power in the quantity of land conveyed, and the excess cannot be distinguished. [Acc. s. c. infra, 233.]
Semble, that the line of a county or district as run by public authority is binding upon the rights of individuals. [Acc. Campbell v. Overton, and Goodloe v. Wilson, cited in note at end of case.]
Semble, also, that no distinction can be made between certified copies of a record offered in evidence, which differ in some degree from each other.
The probate of an instrument must be in the mode prescribed by law, or it will be of no effect.
What English statutes are in force in this State considered. [See note at end of case.]
TRIMBLE, for plaintiff, read a certified copy of a record in the suit Douglass v. Donelson, the return upon which differed in some degree from that produced by the defendants' counsel.
By the Court. No authority exists to make a distinction between the copies; the original return being in court, is better evidence than either; let it be produced as a guide to the jury.
See Tyl. 170.
The clerk produced the return, which accorded with the copy offered by the defendants.
Testimony was now offered by the plaintiff to show that part of the land in dispute at the time the judgment was obtained, and since, lay within the Indian boundary, or within the lines of the land reserved by the treaty and laws of the United States to the use of the Cherokee Indians. This was proved, and Smith, one of the defendants, lives on the Indian side of the line as run by Hawkins and Winchester, commissioners on the part of the United States to run this line, since included by the treaty of Tellico.
Colonel M'Clellan proved that the commissioners on the part of the United States made a mistake in marking the line agreeably to the treaty of Holston, in the year 1791. The fourth article of the treaty, so far as relates to this line, is in these words: "thence (from the North Carolina boundary) north, to a point, from which a line is to be extended to the river Clinch, that shall pass the Holston at the ridge which divides the waters running into Little River from those running into Tennessee; that the commissioners had mistaken the point where the ridge struck Holston, which threw the line actually run further east than it ought to have been, and left within the Indian limits a number of families who were considered secure from the Indian claim. The line was not actually run and marked until the year 1797, agreeably to the second article of the treaty of 1794. It was also stated that the discontents occasioned by this treaty produced the treaty of Tellico in 1798.
2 L.U.S. 436.
2 L.U.S. 433.
4 L.U.S. 555.
The plaintiff's counsel contended that if the defendants could hold under the judgment execution and sale it must be by force of the lien of the judgment. This they cannot do, the land where they now live being at the time within the Indian limits, agreeably to the treaty of Holston, as ascertained and marked by the commissioners in the fall of the year 1797.
In virtue of the execution, without the fostering aid of the lien arising from the judgment, they cannot prevail, on account of the intervention of the plaintiff's claim, which arose by deed, dated on the 12th of August, 1797, long before the marking of the line.
The judgment of Douglass v. Donelson was obtained in April, 1795; the execution which issued under this judgment, and by which the land was sold, issued from March term, 1799, returnable to the September term following.
It is, absurd to contend that a judgment could bind lands within the Indian limits: before the judgment or execution under it could have any effect the plaintiff purchased; Donelson's right was divested; neither one nor the other could touch it. It is urged that the commissioners did not mark the line agreeably to treaty; that if they had, the defendants would live on land included within our limits, and not on that of the Indians. Be this as it may, we are all bound by the act of the commissioners — they were legally constituted, what they did is the law of the land, uncontrollable by any court or by any evidence. It is impossible to suppose that a judgment obtained here can bind land within the Indian nation, or within their limits, which is the same thing; it can no more do it than it can bind lands in Virginia. A judgment in one county cannot authorize an execution against lands in another. Court Law, 1777, § 77, Ird. 313. The place where the defendant Smith lives was within the Indian boundary previous to the treaty of Tellico, 1798, and therefore did not lie within any county; neither judgment nor execution could lay hold of it. The language of the treaty of Holston is decisive on this point. The 7th article is in these words: "The United States solemnly guarantee to the Cherokee nation all their lands not hereby ceded." Can any thing more clearly demonstrate that we have not a scintilla nor species of right with respect to the lands granted to the Indians? Nay, it would be worse than absurd to suppose it, because our courts cannot send any process there.
2 L.U.S. 428.
SCOTT and CAMPBELL, for the defendants, contended that judgments bound land within as well as without the Indian limits: and that a judgment in a district or county bound lands in any part of the State.
[ S. C., infra, 233.]
Ejectment — Common rule, not guilty, and issue. —
The lessor of the plaintiff claimed, under a grant from the State of North Carolina, to Stockley Donelson, for fifty thousand acres of land, dated the first of January, 1795, and a deed from Donelson to the lessor of the plaintiff, dated the twelfth of August, 1797.
The defendants claimed under the same grant, and a deed made by Henry Brazeale, deputy sheriff of Knox county, to the defendant Smith, dated on the nineteenth of September, 1799, for the same fifty thousand acres of land. The sheriff's deed was made under the authority, as it recited, of three judgments: one, Douglass against Donelson, obtained at April term of Hamilton District Court, 1795; an execution issued upon this judgment for costs; another, Donelson's Lessee v. Renfroe: judgment for costs at October term, 1794, of the same court; and the third, Lyon v. Brown, in which Meek came into court, and, in the name of Stockley Donelson, assumed costs at April term, 1796. Executions issued against Donelson upon each of these judgments, which came to the hands of the sheriff of Knox, who put them into the hands of his deputy. In virtue of these executions, the deputy, on the sixteenth of September, 1799, sold the said land at public vendue, when Smith, one of the defendants, became the purchaser. Returns were made on the executions of Douglass v. Donelson, and Donelson v. Renfroe, but no return on the one of Lyon v. Brown. The land was sold for twenty-eight dollars; the judgment in the case of Douglass v. Donelson, for costs, was twenty dollars, eighty-two and two-third cents, but by running of executions, the execution, when the land was sold, amounted to twenty-four dollars, four cents; that of Donelson v. Renfroe, to twenty-two dollars, eighty-three cents. The return upon the execution of Douglass was "levied upon fifty thousand acres of land, and sold; part of the money to be applied to the extinguishment of the execution, Donelson v. Renfroe, the balance towards the discharge of this execution." There was also a similar return made upon the other execution.
WHITESIDE, WILLIAMS, and TRIMBLE objected to the reading of the deed from the deputy sheriff upon three grounds; first, the judgment did not authorize the executions which issued; secondly, if it did, the deputy sheriff had no authority, by law, to execute a deed; thirdly, land or real estate cannot be sold under a judgment for costs.
As to the first, the deed recites the sale to have been made by virtue of three executions mentioned above; now, it is evident that no execution could rightfully issue upon the judgment in the suit, Lyon v. Brown, in consequence of Donelson's assumpsit of costs. Admitting for a moment that Meek was authorized to do it, Donelson could not in this way be admitted a party to the record; it therefore follows that any sale made by virtue of this execution must be void, as well as the sheriff's deed made under it.
This, however, is not the principal point in this part of the case; the returns upon the two executions show that in reality the, sale was made upon the execution, Donelson's Lessee v. Renfroe, though the return upon the execution, Douglass v. Donelson, states that it was levied and sold, c., it then states that twenty-two dollars eighty-two cents was to be applied to the discharge of the other execution of Donelson's Lessee v. Renfroe. This suit was dismissed, upon which the clerk issued execution against Donelson; this he had no right to do without some order of court; he could only issue execution against the nominal plaintiff. The deed therefore is defective, because it recites that the land had been sold by virtue of three executions, two of which were absolutely void. It is insufficient, because it appears, in fact, that the land was sold to satisfy the execution in the case of Donelson's Lessee v. Renfroe, and not in that of Douglass v. Donelson, which is the only one of these three that can be called an execution. Land cannot be sold upon an execution for costs; an injunction in chancery will not lie against an execution for costs, it cannot be considered a debt, and therefore cannot be a lien upon property.
The returns on the executions do not show to whom the land was sold, and that is necessary, otherwise the sheriff's deed cannot avail, agreeably to the decision in the case of Deaderick's Lessee v. Tipton, at Jonesborough, about twelve months ago.
The deputy sheriff cannot make a deed; an ordinary deputation will not give power to execute a deed, it is not like the usual acts of a sheriff, it is attended with mere solemnity, and properly, for it is the act by which the real property of an individual is divested, and it is the first act to that effect. It is the common understanding of the country that a deputy-sheriff cannot make a deed for land; it must be done by the high sheriff. Communis error facit jus, is a maxim which applies to this case. If there were no adjudications on the subject, October, 1784, c. 7, § 10, shows this to be the sense of the legislature. The language of this section is that the sheriff shall make deeds, — it does not mention deputy sheriffs. There is no doubt of the common law on this subject; it is expressly laid down that all acts of the deputy must be in the name of the principal; the sheriff may remove his deputy, but cannot abridge him of any part of his power. 4 Bac. 437; Wood's Inst. 74; Salk. 96, shows that the authority of a deputy may be revoked, as in the case of other attorneys, but that all returns must be made in the name of the high sheriff. In England, lands are not liable to be sold, consequently sheriffs have no deeds to make; if they had, the cases with respect to returns by deputies clearly evince that it must be in the name of the principal sheriff.
CAMPBELL and SCOTT, in answer. — The situation of deputies here and in England is not the same; our law requires deputies to be sworn. But taking the case on the ground it stands in England, the law gives all the ordinary powers of a sheriff to his deputy, and there is no reason for excluding the power of making deeds. An individual can authorize another to make a deed, why should not the law authorize a deputy sheriff to make a deed for his principal for land which he himself has sold? The deputy, acting as deputy, is acting in the name of the sheriff; writs are not directed to the sheriff by name. In Wood's Inst. 74, the reason is given why it is necessary for returns to be made in the name of the high sheriff, he is `a sworn officer. Salk. 96 shows clearly that the power of the deputy cannot be restrained by covenant. In Hayw. 181, we find a case where the return of a subpœna by a deputy was held good; here it did not appear that the deputy was sworn. In the case Smith v. Winton, at the last term, the Court then thought the deputy's deed good, and they had not heard any reason to convince them the law was otherwise.
WHITESIDE, in reply. — The defendants' counsel rely materially on what was said at the last term, knowing that nothing of a similar nature had ever happened before. It was a hasty opinion upon the spur of the occasion, and had not received due consideration. The power of a sheriff is the same here that it is in England; there is no such difference as has been contended for. Powel on Powers, which has been relied upon, does not apply to the case of principal and deputy sheriff. The cases put there are those of ordinary powers of attorney. The situation of a deputy sheriff is different in many respects from that of an attorney-in-fact. If a general power be given, no execution of it will be good without reciting the power, otherwise of a special power. All writs are directed to the high sheriff, and the return should accord with it; the return should be in the name of the sheriff. How can his acting as deputy refer to Robert Houston, high sheriff of Knox? His name is not mentioned. It is true that writs are directed to the sheriff without naming him, but returns by his deputies are made in his name. The case in Haywood, 181, proves this doctrine. If the law is that a deputy must act in the name of the high sheriff, the deputy must sign the name of his principal, otherwise not good.
If an attorney-in-fact, in the performance of any act committed to his agency, use only his own name, the execution of the power will be void.
The law cannot know any person as deputy, it only knows the high sheriff; this is the uniform and prevailing opinion, it was never questioned until now, nor was there ever a deed from a deputy sheriff heard of before this. It has been urged that great mischief would arise if deputies were not allowed to make deeds as well as to execute other duties of a sheriff.
The argument ab inconvenienti is the other way. In ordinary transactions of life an attorney must have a special power to make a deed; one copartner in trade cannot make a deed for another without a special power.
It would be attended with great inconvenience if deputies were permitted to divest rights to real estates; the law never intended to intrust them with such a power. Our Acts of Assembly do not speak of deputies when deeds are directed to be made.
OVERTON, J., sitting alone (WHITE, J., having been employed as counsel, and CAMPBELL, J., interested in a similar question).
The first consideration which obtrudes itself upon the mind, is, whether the sale by the deputy sheriff is valid. It is contended that the deputy sheriff may lawfully sell lands, but the difficulty in this part of the case arises from the objection to the validity of the executions recited in the sheriff's deed.
These objections relate however only to the executions which issued in the suits of Donelson's Lessee v. Renfroe, and Lyon against Brown. It strikes me that the objections are solid and sustainable. Will the execution of Douglass against Donelson be sufficient to authorize the sale when associated with the other two, which are void? It seems sufficient, and the recital of two other void executions in the deed should be considered as surplusage. Redundant or useless recitals cannot vitiate that which was good. There was no necessity for the sheriff to recite any thing more than the execution of Douglass v. Donelson. But it is objected that it appears from the sheriff's returns, that the land was not sold to satisfy this execution, but Renfroe's, since the money was applied in the first place to the satisfaction of that execution. This objection cannot obtain, the return on the execution of Douglass v. Donelson is "levied on 50,000 acres of land" sold, c. The return then goes on to state the application of the money. There was more money received from the sale than would satisfy either execution, but not both. A part was applied to the satisfaction of this. The authority to sell which was conferred by Douglass's execution, the sale under it and the application of the money by the officer, are different and distinct considerations. It is expressly stated to have been sold under this as well as the other execution. One execution being unexceptionable is sufficient to support the sale. No distinction can be seen between a judgment for costs and any other in this respect.
See 1 Dall. 63, 93.
The point which has been most insisted on is that the deed is void, having been executed by the deputy, and not high sheriff. The question has been ably and copiously argued on both sides. It is certainly new to me, and it would have afforded much pleasure to have had the assistance of the other judges.
In the decision of this part of the case, let the authority of the deputy be considered in the view of an ordinary power. Salk. Bac. have treated of the subject in this light. There is certainly a great, if not a complete, analogy.
Powel, one of the most judicious compilers, in his treatise on powers, affords us ample light, with respect to the law arising on the execution of powers: but before we consider the authorities to which he refers it may not be amiss to examine the powers of deputy sheriffs by the common law, and see whether any modification of these powers has arisen from our statutes.
By the common law, a deputy has ex virtute officii all the power of the high sheriff; nor can he abridge this power. In England, there are a variety of cases in which it is not unusual for the sheriff to execute deeds. It is frequently done in the execution of the common writ of fieri facias. The nature of the writ of elegit seems to require it, after an extent, and upon the execution of a liberate. Whether indispensably necessary or not, the books show that it is done. In the performance of this part of the duty of a sheriff, it is not recollected that the law furnishes an exception, and reserves the exercise of this power to the high sheriff, in exclusion of the deputy. It is true that the deputy does not hold any office, and though he may generally do what the sheriff can, it must be done in the name of the high sheriff. But whether the high or deputy sheriff shall make a deed, seems to relate more to form than to substance. It is not denied but the deputy may lawfully sell; then if the high sheriff is to make a deed after a sale by his deputy, discretion is left in the officer whether he will make a deed or not. He must do it, and a court of equity would compel him to do it in case of refusal. Since then it is a matter of course that a deed should be made after sale, the objection that a deputy cannot make a deed in the name of his principal must savor more of technical formality than the justice of the case. But it is said that the name of the high sheriff is not once mentioned in this deed. The language of the deed, is, that "Henry Brazeale, deputy sheriff of the county of Knox." It is conceived, that the omission of the name of the high sheriff is not fatal; the records of the county show who is the high sheriff. To common apprehension, the language used in the deed that it was done by the deputy sheriff, is as expressive of the idea that it was done for the high sheriff, as if his name were mentioned; id certum est quod certum reddi potest. If a deed is to be made after sale by a deputy it cannot be material who does the manual labor of writing and sealing, the high or deputy sheriff. The law will construe it the act of the high sheriff in both cases; and if the person acting were his lawful deputy he would be estopped from denying the deed.
See 2 T. Bl. 345; also n. 14.
See Mary. 175, 176; 4 Hen. Mun. 184.
6 Wil. ed. Bac. Ab. 153, 154, 155, n.; 1 Wil. ed. Bac. Ab. 319, n.; 1 Pow. 111.
See 4 Hen. Mun. 184; 2 East, 142; 1 Wil. ed. Bac. Ab. 319, n.; Hardin, 293. n.
If this were the case of the execution of an ordinary authority, distinct from the duties of a sheriff, there would be no doubt of its being a good execution. It is insisted that the execution of the power is defective, as not containing a reference to the authority under which the act was done or performed; so careful is the law to preserve the existence of acts ut res magis valeat quam pereat, that, in common cases, it is not necessary to refer in the execution of a power to the power itself: provided it appears that the act can be good no other way. Pow. on Pow. 111, and the authorities there referred to.
If the distinction between judicial and ministerial authorities be adverted to it will seem to confirm these impressions. No sub-agency can take place in the one, but may in the other. In most cases a sheriff is a ministerial officer. To what class of his duties does the execution of a deed for land sold under execution belong? Certainly to the ministerial. It is certainly best that the high sheriff should execute all deeds himself, being most regular; but at present it cannot be seen that a deed executed by a deputy, which purports to be for the high sheriff, will be void.
See 2 East, 142, n.
The deed was then offered to be read, when it was stated the deputation to Henry Brazeale ought to be shown, and of this opinion was the Court. Copies from the records of the County Court of Knox were produced, which showed that Robert Houston was sheriff, and that Henry Brazeale was sworn in as his deputy. Robert Houston was also sworn, who deposed that he had given Brazeale a general deputation. But whether in writing he could not tell. Two objections were made to the introduction of this evidence: first, that there was no law authorizing the County Court to administer an oath to a deputy sheriff, consequently their act, in this respect, was extra-judicial, and ought not to be received in evidence. Where any court or magistrate is not authorized to do an act by law, their certificate of its performance can no more be received than that of a private individual; secondly, the high sheriff cannot make a deputy without deed; nor can the Court notice his act as such without producing the deed, showing the institution of his power. 1 Bac. 199.
In answer to the first objection it was urged that the Statute of 27 Eliz. c. 12, directs deputy sheriffs to be sworn, 4 Bac. 437; that Ire. Rev. 18, 1715, c. 31, § 7; ib. 353, April, 1778, c. 5, show what parts of the statutes of England are in force here of which this is one. And, if so, the first objection is at an end.
The second objection cannot prevail, the course of human affairs will not admit of it.
WHITESIDE, in reply, said that the statutes in England which are in force are pointed out in Ird. 18, § 7, taken in connection with the act in p. 353, in these words: "that all statute laws of England made for maintaining the queen's royal prerogative, and her royal person, and succession of the crown. And all such laws made for the establishment of the church, and the laws made for indulgence to Protestant dissenters, and all lairs providing for the privileges of the people and security of trade. As well as all statute laws made for the limitation of actions and preventing. of vexatious lawsuits, and for preventing immorality and fraud, and confirming inheritances and titles of land, are and shall be in force here, although this province, or the plantations in general, are not therein named." 1715. c. 31.
The act in Ird. 353, passed in the year 1778, after the commencement of the Revolution, and consequently some of the acts enforced in the former are done away by the latter in consequence of the change of government. But this act certainly did not mean to extend the Act of 1715. This act does not include the statute of 27 Eliz. c. 12. The language of the Act of 1778 is, "such parts of the statutes as were heretofore in force and use within this territory." The Act of 1715 shows what statutes were in force and use, and this act is not included, consequently it is not in force.
That part of the Act of 1715 which refers to royalty and its privileges is not in force, being incompatible with the present form of government and the Act of 1778. The same observation will apply to the statutes made for the benefit of an established church. The remainder of the act is obscure, and does not permit any specific and definite train of ideas in relation to what English statutes by that act are enforced. The construction of this act when standing alone, must have depended very much upon usage and the decisions of the superior courts. Information on this subject is wanting. It becomes, then, necessary to look carefully into the Act of 1778. The preamble of the act is in these words: "Whereas doubts may arise upon the revolution in government whether any and what laws continued in force here." Sect. 2 enacts "that all such statutes and such parts of the common law as were heretofore in force and use within this territory and all the acts of the late general assembly thereof, or so much of the said statutes, common law, and acts of assembly as are not destructive of, repugnant to, or inconsistent with the freedom and independence of this State; and the form of government therein established, and which have not been otherwise provided for, in the whole or in part not abrogated, repealed, expired, or become obsolete, are hereby declared to be in full force within this State."
With respect to what part of the statutes of England, to use the language of this act, "were heretofore in force and use," no satisfactory opinion can be given; but the alternative of this sentence is susceptible of specification, the expressions are, "or so much of the said statutes, c., as are not destructive of, repugnant to, or inconsistent with the freedom and independence of this State and the form of government." In other words, all the statutes of England contemplated in this act are in force which are not inconsistent with the principles and the form of the government. The statues contemplated by the act were those which passed previously to the fourth year of Jac. 1st, when the charter to the colony of Virginia was granted, which included what was afterwards called North Carolina.
See 1 Bl. Com. 106-108; 1 T. Bl. part 1, app. 381-381, 432, 443, 444.
See Salk. 411, 666; 3 Mod. 159; 4 Mod. 225, 226; 2 P. W. 75.
This act having been passed previous to the fourth of Jac. 1st, the question is whether it is inconsistent with the principles or form of the government, or in the language of the 5th section of the Act of 1715, c. 31, Ird. 18. "with our way of living," it appears not, and therefore in force. Extra-judicial or extra-ministerial acts derive no authority from the certificate of the officer; but this is not the case with respect to the certificate of the clerk, now offered. The administration of the oath to the deputy sheriff was authorized by the Act of 27 Eliz. c. 12, and therefore the copy of the record is admissible.
In the creation of powers, or authorities, the law contemplates a deed. Whether it be essential or not between the person giving and receiving the power, is not now necessary to inquire. The question arises between third persons; and it seems clearly to me, that, in controversies between persons other than the sheriff and his deputy, it is not necessary to show a deputation by deed; no law is recollected which requires such powers to be registered, as in the cases of conveyances for land. It would therefore be unreasonable to oblige strangers to show a deed; in some cases it might be lost, in others withheld. With respect to third persons, then, other evidence is admissible, under the general rule of law, that the best of which the nature of the case is susceptible shall be produced. The evidence therefore which is offered is admissible; but the jury ought to be well satisfied that Brazeale was fully authorized to act as deputy. Let the deed be read, and the evidence received; the jury will judge of it.
See 2 Cain. E. 250; 2 Johns. 579; Sch. Lefroy, 31; 2 Mass. 520; 11 East, 297.
The defendants' counsel then offered another chain of title, on which they also relied, consisting of a deed from Robert Houston, sheriff and collector of the taxes for the county of Knox, reciting that the land was sold as the property of George Wescot, John Ramsey, and Solomon Marks, to the defendant Smith, in consideration of the sum of $318, for the taxes of the years 1796 and 1797, on the 22d March, 1800. Deed dated 24th March. 1800. To support this deed, a transcript of the record of Knox county was read, showing a judgment and execution for these taxes.
A deed was then offered from Reed Co., to Wescot and others, upon a probate made before one of the judges of the Superior Court of Pennsylvania in July, 1797, and registered here in March, 1798. The reading of this deed was objected to as not having been proved according to law. It was not agreeable to the Act of October, 1797, nor any previous law.
CAMPBELL, in support of the probate, admitted that the Act of October, 1797, did not affect the case one way or the other, the probate having been made previous to the act. The Act of 1715, c. 37, § 7, Ird. 24, governs this case; it enacts, "That all deeds and conveyances of land lying within this government, made in foreign parts, which shall he remitted hither, and proved before the chief justice or court of the precinct where the land lieth, in manner as before directed, or which shall be personally acknowledged and proved before the chief magistrate of any city, town, or corporation, within the king of Great Britain's dominions, and an attestation thereof affixed thereto; or which shall be acknowledged or proved before the governor or commander-in-chief of any of his majesty's plantations, and attested under the public seal, and registered in the aforesaid office where the land lieth within one year after the arrival of such deeds, shall be good and valid in law to all intents and purposes as if made and executed within this government."
It was admitted that the probate was not made agreeably to the letter of the act, but it came within the equity of it. A judge of the Supreme Court being an officer much higher in the consideration of the law than the chief magistrate of any city, town, or corporation. But by the Court: The act has prescribed a method, and the Court are not at liberty to depart from it. The deed cannot be read.
A deed from David Allison to William Reed Co., dated March 26, 1796, for the same tract, but stating that the tract had been found to contain 379,000 acres.
A power of attorney from Stockley Donelson to James Grant, dated November 3, 1795. This power states that the tract upon re-survey had been found to contain 200,000 acres, of which he is empowered to sell 120,000 acres, allowing for older claims within the same. Deed from Stockley Donelson by James Grant, dated March 22, 1796, conveying the whole grant, with an exception of older claims. Grant states in his deed that it was made in pursuance of a power of attorney under date of the 22d of September, 1792, registered in the county of Orange, within the State of North Carolina.
WHITESIDE objected to the introduction of this deed. He contended that the power produced is different from that recited in the deed. The one produced is dated on the third of November, 1795, the one recited, dated 22d of September, 1792, and registered in Orange county; besides, this power is not registered in Orange county, so that the power produced does not support the deed. It is as inefficient to this end as if no power were produced at all; the Court cannot presume that it was made in pursuance of the power produced; when things are expressed, presumptions are excluded, is a maxim of law, the Court therefore are constrained to look to the power of the 22d of September, 1792, and if that be not produced the deed cannot be read. The necessity of the production of this power is further evinced by the very production of the one now before the Court. The execution of a power by Grant, as expressed in this deed, is inconsistent with the power produced; that only authorizes the conveyance of 120,000 acres — Grant has conveyed 200,000, the whole tract. 1 Bac. 199 shows that an authority must be by deed, and the deed produced, so that the Court may see whether the authority be well pursued or not. In the execution of a power if a man does more it is good for what he is authorized to do, but if less, it is void; as if a letter of attorney be given to make seisin upon conditions, and seisin is delivered absolutely, it will be void. Co. Lit. 258 b. There is another reason why the execution of the power is void, the excess cannot be separated, it is uncertain what part is conveyed, therefore void for the whole. 1 Salk. 96.
CAMPBELL, in answer. — Constructions should pursue the intent, as in the case of a mistake in calling a deed an indenture, when in fact it is not. 1 Bac. 199. There is a note of Hargrave and Butler to the passage in Co. Lit. 258 b, which shows the ground upon which this objection rests; that the execution of a power is not void, if there are any data by which the excess in its execution can be distinguished from what is authorized.
Powel on Powers, 344, 346, 377; 2 Ves. 644; Cow. 651; 2 Bac. 201.
The excess being older claims, can be distinguished and thrown out of view. As to the recital of a power under date 22d September, 1792, it is mere surplusage. Grant was not bound to recite at all, if he did, or, if the recital be wrong or imperfect, the deed is good provided he had a power at all.
Pow. on Pow. 111.
WHITESIDE, in reply. — The doctrine of pleading is illustrative of this subject. If a plaintiff recites that in his declaration, which he is not bound to do, he is bound by it, and it cannot be considered as surplusage. The case in Powel. 111, shows that the date was right, and that was a principal point upon which the Court rested their judgment. In this case it is impossible to distinguish the excess; the execution of the power is therefore void. The case in 2 Ves. 644 demonstrates this doctrine.
Two points present themselves in this part of the case; first, the effect of the misrecital; secondly, the alleged excess in the execution of the power. As to the first, the authorities referred to by the defendants' counsel are in point. They show that the execution of the power cannot be invalidated upon that principle. It cannot be essential, provided the subject-matter conveyed is well ascertained, and a power was in existence.
Presumptions stand until the contrary appear. New the presumption that Grant was not authorized to convey is destroyed by the production of the present power; it shows that he was authorized to convey, which is all that is material.
It is however contended that the deed is a nullity on another account, that the attorney has exceeded his power, and that the excess cannot be distinguished. Should, this be the case, the arguments of the plaintiff's counsel deserve great consideration; but should the fact really be that taking out older claims within the bounds of the tract, there would remain 120,000 acres or less, and that ascertained, the execution of the power will be good; older claims were certainly contemplated by the parties.
The defendants' counsel then offered a witness to prove the amount of older claims, which was opposed, there being better evidence.
By the Court. This evidence cannot be received: claims to land are evidenced by entries or grants, either of which being of record, is higher than parol testimony alone. The onus probandi lies on the defendants. The plaintiff has proved that the defendants are within his lines; they must prove how they are exempt from the operation of the plaintiff's title.
This ground was then abandoned, and the whole of the second chain of title.
In order to open a way, so as to get a complete view of the main question, it may be necessary to consider, first, whether judgments bind real property or not; and if they do in ordinary cases, secondly, to what extent; thirdly, whether they will bind lands within the Indian boundary.
1st. The cases in Haywood, 94, 95, show that judgments bind real property against the alienations of the owner, but not as against executions. The authority of this case establishes the law, WILLIAMS, J., in Hayw. 99, 100, seems to have taken up a wrong idea of this decision; though he did not decide contrary to the principle, he states it to have been decided that executions' only, and not judgments, would bind land in this country. These impressions however do not in the smallest degree shake the authority in page 94. Conformably to this opinion was the decision in the case Irvin's Lessee v. Overton, determined a few years ago in the district of Mero.
ORIGINAL NOTE. — This point is now settled, but if res intergra, it would seem that agreeably to our laws., judgments should not create any lien agreeably to the opinion of Judge Williams in the text.
2d. In the investigation of this part of the case it seems important to inquire into the common law, and the reason of that law, and see how the reasons apply here. The judgments in England, which bind real property, are those rendered in the Court of King's Bench, Common Pleas, and Exchequer. Statutes staple and merchant, acknowledged before proper officers, and enrolled in chancery; these are courts of general jurisdiction and not limited. All subjects are presumed by law to know what judgments are rendered there. The original jurisdiction of these courts is coextensive with the kingdom. In the transactions of individuals, one with another, they were bound to take notice of all judgments rendered in these courts, so far as they might be affected by them. There was great propriety in this, because it secured the creditor, and it was no hardship to oblige persons who might wish to purchase to look to the records of these courts; they were few in number, situated in one place, and, being of general concern, society were presumed to be informed from the general attendance of individuals at them.
The organization of our judicial system is different; the general original jurisdiction, even of our superior courts, is limited to districts consisting of several counties. The authority of county courts is, in like manner, limited to their respective counties. It is true that our statutes furnish some exceptions, and authorize each of these courts to send their process without the limits of their respective jurisdictions. The running of an execution from one district or county to another was necessary to prevent an evasion of the law. The original process, with the proceedings and judgment, might become nugatory and lifeless without such a provision. Other provisions of a similar nature are mere exceptions to the general rule furnished by the legislature for the better attainment of justice.
The general rule that our courts are of limited original jurisdiction is a distinguishable trait in our judicial polity, In the common course of things, the people of a county attend their respective county courts; so of a people of a district. But do people usually attend other county or district courts than their own? They do not. Grand and petit jurors are assembled from different parts of a district or county; besides, a similar attendance of suitors and witnesses. This, by the structure of our government, opens a copious source of information of what passes in our courts.
The common law never could be so unreasonable as to require individuals at their peril to take notice of the decisions of courts where individuals in society were presumed not to attend. The binding force of judgments in England rests upon constructive notice principally which originates from the usual attendance of people at their courts.
See 4 Hen. Mun. 66, 68.
This principle, however, is not to be so favored as to be carried beyond the reason of the law. When the reason upon which the law is founded ceases, the law ceases with it, So far from extending the principle of constructive notice of judgments to purchasers, the English government in latter times have thought proper to narrow it. Stat. 29, C. 2, c. 3, § 15. Our statutes are silent as to the binding force of judgments; not so as to mortgages: a security most analogous to the one under consideration. Mortgages first registered in the county where the land lies will hold, unless a prior mortgage shall be registered within fifty days after date; 1715, c. 38, § 11. This evinces the sedulous care of the legislature to guard purchasers; the notice in this case is derived from the register's books of the county where the land lies. Why ought a judgment of a district or county court to have a more extensive operation as to notice? No solid Reason is believed to exist. To oblige a man to examine the clerks' offices of every court in the State before he can purchase land in safety is a greater burden than the law of England ever contemplated, or is consistent with the ordinary occupations of mankind. It seems, therefore, just to conclude, that a judgment does not bind without the limits of the original jurisdiction of the court in which it was rendered, and then not after it has become dormant.
See Ld. Ray. 216; 1 Lev. 134; 2 Call, 125.
This opinion is believed not to contravene the decision in Haywood, 94. In that case the laud appears to have been in the same county where the judgment was obtained.
The lien of a fi. fa. is a different consideration. The last and most important part of the examination is whether judgments shall bind lands with in the limits of the country reserved to the use of the Indians, supposing them to be situated in a district or county.
The confident manner in which the plaintiff's counsel have treated this part of the case, as well as to satisfy doubts which may exist, renders it proper to examine this subject from its source.
Great Britain colonized the country now occupied by the different States; she made charters or deeds to individuals of extensive tracts of country, among which we find in Ird. page first, the second charter of Charles the Second to the proprietors of Carolina, made in the 17th year of his reign. The limits expressed in the charter extend westward as far as the South Seas. The claim or right of the aborigines or Indians is not mentioned. In the Constitution of North Carolina, Declaration of Rights, section 25th, are these words: "The property of the soil in a free government being one of the essential rights of the collective body of the people, it is necessary, in order to avoid future disputes that the limits of the State should be ascertained with precision," it then describes several lines until the western boundary is defined, which is agreeable to the charter of King Charles the Second. That part of the State lying west of the Mississippi was relinquished by the definitive treaty of peace between the United States and Great Britain. There is a provision in this section of the Declaration of Rights that it "shall not prejudice any nation or nations of Indians from enjoying such hunting grounds as may have been or hereafter shall be secured to them by any former or future legislature of this State." It was further provided that it should "not be construed so as to prevent the establishment of one or more governments westward by consent of the legislature." All rights of sovereignty within these limits the Constitution of North Carolina, ratified in December, 1776, expressly declares to be in that State. In the year 1789, North Carolina adopted the Constitution of the United States, which abrogated such parts of her Constitution and laws as were inconsistent with it. The 8th and 10th sections of the first article of the Constitution of the United States give to the General Government the exclusive right of regulating the intercourse of the citizens of the several States with the Indians, and of making treaties with them.
See 4 Hen. Mun. 66, 68.
After passing through two stages of provincial jurisprudence, agreeably to the ordinance of Congress of the 13th of July, 1787, the western part of the State of North Carolina was erected into a State by the name of Tennessee, on an equal footing with the original States in all respects whatever; and with the consent of North Carolina, as expressed in her Cession Act. The Constitution of the State of Tennessee, under the authority of which she was admitted into the Union, Declaration of Rights, § 32, after defining the limits of the State, declares that the people of this State have the right of exercising sovereignty over the described tract of country, consistent with the relation they bear to the government of the United States.
See acts passed in the years 1796, 1798; 3 Vol. L.U.S. 361, Ird. Rev. 663.
The rights of the aborigines as a sovereign people are not recognized, neither in the charter of King Charles the Second nor the Constitution of North Carolina. The first does not mention them at all, and the second in very different language from that which is usual when mentioning a people sovereign in fact. The rights of these people are best understood by recurring to the acts of North Carolina, when possessing jurisdiction over the country, now the State of Tennessee, the Constitution of the United States, and the laws made in pursuance of it. As between citizens of the same government this is the only guide. The Constitution of North Carolina does not acknowledge any right of eminent domain, but says that any right of enjoying their hunting ground which has or may be secured to them by Act of Assembly shall not be impaired by the Constitution. The language of their Act in 1783, c. 2, is nearly the same. This act at pleasure, without consulting the Cherokee Indians, reserved such part of the lands to the Indians as the legislature thought proper: the balance extending as far as the Mississippi, they by that act authorized to be sold for the use of the State. It was sold, and entries made upon such sales in what was called John Armstrong's office, for which the State of North Carolina issued grants. The treaty of Hopewell, under the authority of the confederation, made in November, 1785, uses the language of "allotting to the Cherokees lands for their hunting grounds." These, with all the treaties, make the Indians acknowledge the protection of the United States. Very different indeed from the rights of complete sovereignty. The treaty of Holston, in the year 1791, abridged the limits of the citizens and extended those of the Indians; consequently a great quantity of land sold by North Carolina to her citizens was thrown by this treaty within the Indian boundary. It was however severe, yet obligatory, having been made by the United States under the authority of the Federal Constitution, to which all the States agreed.
The natives are as much entitled to the rights of humanity as we are And to the honor of the American government, be it spoken, that it has been more scrupulous in observing and enforcing the duties of humanity than British monarchs under the colonial governments. We seldom find their name mentioned in their charters or solemn acts of their government. Humanity and its rights were not forgotten in our Constitution and laws. But how far has the Constitution and laws of the United States, made in pursuance of it, abridged the sovereign rights of each State? The answer is easy. No further than the States have expressly, and not by equitable construction, delegated authority to the United States. The Constitution of the United States was proposed to each State possessing the rights of sovereignty within their respective limits. It proposed that each State should give up a portion of its sovereignty for the more secure and convenient enjoyment of the remainder.
See 2 Dall. 384; T. Bl. accordant.
This construction is conformable to the law of nature applied to nations. By this law, nations as well as individuals are tenacious of the rights of self-preservation, of which, as applied to sovereign States, the right of soil or eminent domain is one. Constitutions, treaties, or laws, in derogation of these rights are to be construed strictly. Vattel is of this opinion, and, what is more satisfactory, the Federalist, and the American author of the Notes to Blackstone's Commentaries, two of the most eminent writers on jurisprudence, are of the same opinion. The Constitution of the United States gave the power to the General Government to regulate intercourse with the Indians and to make treaties. The States, having conceded these powers, no longer possess them. The Constitution was a dead letter until the treaties and the laws of the United States pointed out the principles of this intercourse. By treaty certain lands within the limits of the State are in its language "allotted, granted, and secured to the Indians, within which the citizens are not to hunt, drive stock, survey, nor even go there without permission. If they do, or commit other trespasses, they are subject to heavy penalties. But does the Constitution of the United States or its laws take from the sovereign rights of the State further than is incompatible with these regulations? They do not.
See Vat. B. 2 c, 17, §§ 305, 308; Amendment to Con. U. S. arts. 11, 12; 1 T. Bl. app. to part 1, 307, 308; Ib. 412; Vat. B. 1, c. 1, § 10; 2 Dall. 384; 1 T. Bl. app. to part 1, 269; 4 Johns. 163.
3 Vol. L. U. S. 301; 4 Vol. L. U. S. 527.
Federalist, No. 42; T. Bl. app. to vol. 1, part 1, 253.
Hence it is deductible that a judgment will bind land within the Indian limits as well as without, provided the district or county in which the judgment was rendered extended there. Laws should receive a liberal construction for the benefit of creditors if the right of the debtor to land within the Indian boundary was not destroyed by a subsequent treaty. The nature of our government is, that no law shall be made to impair the obligation of contracts. North Carolina did contract, sell, and grant lands within the boundary as now established, before any treaty was made. She had a right to do so. At least citizens of, and claiming lands under, the same government are estopped to say otherwise. The principles of the federal compact forbid a different construction, and the language of the laws of the United States expressly recognizes this right; 2 L. U. S. 305. No language that an act of Congress could adopt could deprive a State of its original right to the soil within its limits; subject, however, to such partial restrictions as to its use or enjoyment as Congress may think proper to interpose in regulating the intercourse with the Indians. These ideas, however, are offered upon abstract principles. As to the particular situation of this State, emerging as it did from a territorial government, no opinion is given. The ordinary rights of sovereignty may exist in a State without the right of soil.
The last inquiry to be made is whether this land is situated within the district of Hamilton where the judgment was obtained. Districts by our Constitution and laws are composed of entire counties, the land therefore must be within some county, otherwise not within a district. Knox was the only county in which it could be. In the western part of the State of North Carolina the county of Washington was first laid off. 1777, c. 31, Ird. 346. In extended westwardly to the Mississippi, and north and south across the limits of the State; Sullivan and Greene counties were next erected. Ird. 395, c. 29; 473, c. 51. Then Hawkins, the western boundary of which is described by a line beginning at the Suck, where Tennessee runs through Cumberland Mountain, thence along the top of the mountain to the Virginia line, now the Kentucky line. 1786, 34; Ird. 599. At this time the county of Greene, beside a part of the country east of Cumberland Mountain, included all that lay west of it, except such as fell within the counties west of the mountain. In this state of things the counties of Greene and Hawkins were circumscribed in their limits to the Indian boundary, as established by the treaty of Holston, and the county of Knox erected. Ordinances of the governor and judges passed on the 11th of June, 1792. Roulstone's ed. of the Tennessee Laws, IV. The line which Col. McClellan speaks of, was not at that time run. The boundary of Knox county calls for it. Whether the line as actually run by the commissioners in the year 1797, or as it is contended it should have been run, be the true line of the county, I will not now undertake to say, being interested in a question of a similar nature. The jury are competent to decide the law and the fact; and they will judge of this part of the case as they may think right. Should they think that the western boundary of Knox county did not take in the defendants they will find for the plaintiff, otherwise for the defendants, upon this ground. If the validity of the ordinance of the governor and judges rested upon their authority alone, it might be justly questioned; but the legislature seems to have confirmed their acts. 1794, c. 7. The practice of North Carolina was to make the counties in their limits coextensive with the State. This principle was first altered by the ordinance alluded to. The reasons are unknown. The change was pursued in relation to all the frontier counties, but was done away and the original principle restored by an Act of 1801, c. 37.
A similar question was decided by White, J., in the case of Campbell's Lessee v. Overton, and by Humphreys and Powell, in the case of Goodloe's Lessee v. Wilson, at Nashville, in relation to the continental line; viz., that having been run by public authority, it was obligatory as to the rights of individuals.
Verdict for defendant — Motion for a new trial — continued.
NOTE. — The legislation and decisions of the courts upon the English statutes which, are to be considered in force in this State, may be condensed thus: —
The British statutes in force are generally: —
"Statutes passed previously to the fourth year of James I., 1607, when the charter of the colony of Virginia was granted, which colony then included what was afterwards called North Carolina." Supra, 153; Green v. Allen, 5 Hum. 233, citing the principal case.
"Statutes passed afterwards up to the Revolution, where the colonies were specially named." Shute v. Harder, 1 Y. 1.
"All statute laws made for the limitation of actions, and preventing of vexatious lawsuits, and for preventing immorality and fraud; and for confirming inheritances and titles of land, although this province or the plantations in general are not therein named," 1715, 31, 7.
"All statutes for the amendment of the law, commonly called statutes of jeofails, and which were heretofore enforced in this territory by any act of the General Assembly under the late government." 1777, 2, 35, and 1794, 1, 27.
"All such statutes as were heretofore in force and use within this territory, or so much of the said statutes as are not destructive of, repugnant to, or inconsistent with the freedom and independence of this State, and the form of government therein established." 1778, 5, 1; Supra, 153; Shute v. Harder, 1 Y. 1; Tisdale v. Monroe, 3 Y. 320.
The following specific statutes have been held to be in force: —
34 Ed. III. 1, authorizing justices of the peace to bind persons "not of good fame" to security for good behavior. Estes v. State, 2 Hum. 497, where, however, the point is waived with the suggestion that, if in force, it is perhaps superseded by 1801, 22.
4 H. IV. 18, providing that an attorney may be stricken from the roll for good cause. Smith v. State, 1 Y. 228.
8 H. VI. 9, and 31 Eliz. 11, in relation to forcible entry and detainer. Dillon v. State, 4 Hay. 271.
11 H. VII. 12, for benefit of poor persons. Bramley v. Hayworth, 3 Y. 422; Dudley v. Belch, 4 Hay. 193.
27 H. VIII. 10, statute of uses. Wilson v. Kilcannon, 4 Hay. 182; Barry v. Shelby, 4 Hay. 229; Shute v. Harder, 1 Y. 1. About the year 1852, our Supreme Court was understood to hold that the statute of uses was not in force in this State, but the language was modified in the opinion as printed; Smith v. Thompson, 2 Sn. 386. See editor's note to Russell v. Stinson, 3 Hay. 1.
31 H. VIII. 1, and 32, H. VIII. 32, upon the subject of partition. Sawyers v. Cator, 8 Hum. 256.
32 H. VIII. 28, on wife's right of entry after alienation by husband. Miller v. Miller, Meigs, 493.
32 H. VIII. 30, and 4 5 Anne 16, statutes of jeofails to cure errors after verdict. Payton v. Trigg, 4 Hay. 250; Harmon v. Crook, 2 Y. 133.
37 H. VIII. 8, jeofails; words vi et armis not essential in indictment, Tipton v. State, 2 Y. 542.
27 Eliz. 12, prescribing the form and mode of administering oaths of deputy sheriffs, Glasgow v. Smith, 1 Tenn. 154.
31 Eliz. 5, prescribing two years' limitation of actions for penalties. State v. Moore, Meigs, 476.
21 J, I. 16, 3, six years' limitation of debt on simple contract. Tisdale v. Monroe, 3 Y. 320.
29 Ch. II. 3, 10, trust estates in land subject to execution. Shute v. Harder, 1 Y. 1; Shields v. Mitchell, 10 Y. 1.
5 Geo. I. 13, jeofails, to cure errors after verdict in writs of error. Johnson v. Planter's Bank, 1 Hum. 77.
5 Geo. II. 7, 4, lien of judgment. Porter v. Cocke, Peck, 30.
9 10 W. III. 15, arbitration. Rogers v. Nall, 6 H. 29.
The Code does not undertake to specify what part of the English laws and statutes are in force; and is, in fact, altogether silent on the subject. — ED.