ERROR to the district court of the western district of Virginia.
This was an ejectment brought by the defendants, against the plaintiffs in error, in the district court of the United States for the western district of Virginia, exercising circuit court powers, for the recovery of a tract of four thousand acres of land in the said district, being a tract lying in the north-east corner of a large connexion of surveys made together, owned by Reed and Ford, the said Youngs, Thomas Lardley, and others; some in one name and some in others, as appearing by the surveyor's diagram. There was a verdict and judgment for the plaintiffs, which this writ of error is brought to reverse.
During the trial the counsel of the defendants tendered three bills of exceptions to opinions of the court, which are signed, sealed, and made part of the record, and which are substantially as follows:
The first bill of exceptions states that the plaintiffs below, on the trial of the case before the district court, introduced a grant for the lands claimed, which grant is described in the third bill of exceptions, and the plat and report of the surveyor made in the cause.
That the plaintiffs also offered in evidence a number of entries of recent date, made by the defendant Stringer, within the bounds of the said land, as designated on said report, as John Young's four thousand acres, being the land claimed by the plaintiffs, and attempted to prove by a witness that Stringer, when he made those entries, had heard of the plaintiffs' claim to the land in controversy. The defendants thereupon offered as evidence official copies of entries made by others and third persons, since the date of the plaintiffs' grant, for the purpose of proving a general opinion that the lands claimed were vacant at the date of the said entries, and to disprove notice to Stringer of the identity of the plaintiffs' claim, when he made the entries under which the defendants claim to hold. The court decided this evidence to be inadmissible, to which the defendants excepted.
The second bill of exceptions, after setting out the plaintiffs' grant, states: that the defendants then offered in evidence the surveyor's book, of Monongalia county, to prove no such survey had ever been returned to the office of said surveyor, and recorded in the books of the said surveyor; and further offered to introduce evidence to prove that Henry Fink, the deputy upon whose survey the grant purports to have issued, resided at the date of the said survey in Harrison county, and was not then a deputy surveyor of Monongalia county. The defendants offered the said evidence to prove that no survey had ever been made, and that the register issued the grant without proper authority; on which account the same was void. The plaintiffs objected to this evidence as inadmissible for the purpose stated; and the court rejected it as such. The defendants counsel then offered the same evidence to disprove the identity of the land contained in the plaintiffs grant with that now claimed by the plaintiffs, and represented by the surveyor's report, as contained by the blue lines thereon, and thereon designted by the Roman numeral V. The court also rejected the said evidence for the last mentioned purpose, and the defendants excepted.
The third bill of exceptions states; that the plaintiffs on the trial of the cause introduced a grant in the words and figures following, setting it forth at large. The grant is issued to John Young, the lessor, and dated the 10th of June 1786, for four thousand acres, the premises in question; bounded as follows, to wit: describing it by metes and bounds.
The defendants thereupon offered in evidence a certified copy of an act of assembly of Virginia, establishing the county of Harrison, and a copy of the cerificate of the survey on which the plaintiffs' said grant issued, dated December 13th 1824, after the act for erecting the county of Harrison was in operation; and proved that the land purporting to be granted, and the land claimed, as having been surveyed, lay in the bounds of the county of Harrison; and, upon this evidence the counsel moved the court to instruct the jury, that, if they were satisfied from the testimony that the lands lay in a different county from that in which the survey imports to have been made, then the grant was void at law; and that it was not competent for the plaintiffs to contradict the call for the county in the grant. But the court delivered its opinion that the foregoing facts, if true, should not avail the defendants in the present action, as the grant was not void: to which opinion the third bill of exceptions is taken.
The case was argued by Mr Smyth, for the plaintiffs in error, and by Mr Doddridge, for the defendants.
For the plaintiffs, on the first bill of exceptions, it was contended; that the court admitted illegal evidence offered by the plaintiffs below, and stated in the bill, to go to the jury. That the court rejected evidence offered by the defendants below, which was proper to counteract the said evidence offered by the plaintiffs.
On the second bill of exceptions it was argued, that the evidence offered was legal, and should have been admitted to the jury.
On the third bill of exceptions, the counsel for the plaintiffs contended; that the court should have instructed the jury that the plaintiffs' grant was not evidence to support their claim to the land in controversy. That the court should have instructed the jury, that if they were satisfied, from the testimony, that the lands lay in a different county from that in which the survey purports to have been made, that the grant was void. That the court should have instructed the jury, that the plaintiffs could not, by parol evidence, contradict the call for the county in their grant. That the court erred in giving no instruction on that point, although required so to do by the defendants; and on the whole record, the plaintiffs in error contended, that this court should have decided that the grant under which the plaintiffs claimed was void. That the instruction of the judge to the jury, that it is no objection to the plaintiffs' grant that the survey was made by a surveyor of Monongalia, in the county of Harrison, is erroneous. That the court erred in admitting hearsay evidence to identify corners, and establish boundaries, of the lands claimed by the plaintiffs; and that the verdict is contrary to evidence; and therefore the court should have ordered a new trial.
Smyth, for the plaintiffs in error, argued; that the court admitted the plaintiff below to introduce illegal evidence, as stated in the first bill of exceptions.
They produced copies of a number of entries of recent date, made by Stringer, one of the defendants below, within the bounds described in the surveyor's report; and attempted to prove by a witness, that when those entries were made, the said Stringer had heard of the claim of the plaintiffs. This was an attempt to deprive an individual of the right to enter vacant land, because he has heard that another has a claim to it. Has there not been an attempt, sanctioned by the court, to lead the jury to believe that having heard that another had a claim to the land, the defendants had no right to locate it, although it might be vacant? Has there not been an attempt to lead the jury to believe that the law of purchaser with, or without notice, had some bearing on the cause? The doctrine of notice has no application to purchasers from the government. If the plaintiffs' grant gave no title, notice to Stringer would not make it good against him. Suppose that Stringer and some other person had made entries on the same day, Stringer having heard of Young's claim, the other not having heard of it; will it be contended that the one could, and the other could not, obtain a right? What had the plaintiffs to do with these entries of the defendants? They could not stand in the way of the claim of the plaintiffs, if the had a grant for the land. The tendency of this evidence, if not the object of producing it, was to perplex and mislead the jury, and excite a prejudice against the defendant Stringer. And the law is that 'illegal or improper evidence, however unimportant it may be to the case, ought never to be confided to the jury; for if it should have an influence upon their minds, it will mislead them; and if it should have none, it is useless, and may at least produce perplexity.' 2 Wash. 281.
The court erred in rejecting evidence offered by the defendants, which was proper to rebut the said evidence offered by the plaintiffs.
The illegality of Young's evidence, we admit: but as the court received it, thereupon it became necessary and proper to counteract it. Copies of entries, if evidence for the one party, were evidence for the other; and a general reputation that the land was vacant, was persuasive evidence that Stringer had no notice of Young's claim, and believed the land to be vacant. This evidence was important to remove prejudice; and refusing to receive it secured the effect of the plaintiffs' illegal evidence.
The evidence stated in the second bill of exceptions should have been left to the jury.
The evidence offered was, the book of the surveyor of Monongalia; and testimony that Henry Fink, who made the survey, was not a deputy of the surveyor of Monongalia in December 1784, when the plaintiffs' survey was made. You cannot, in a court of law, go into the consideration of a deed; but you may avoid it, by proving fraud in the execution. If there was no survey, or only a survey by Henry Fink, as deputy surveyor of Monongalia, when in fact he was not so, the signature of the governor was obtained by fraud. There is fraud in the execution of the deed, which may be shown in a court of law; so this evidence should, for that purpose, have been permitted to go to the jury.
The plaintiffs below were to identify their land; their grant called for land in Monongalia, and their survey was made by Henry Fink, as deputy surveyor of Monongalia; the surveyor's book was offered to disprove the identity of the land; the judge refused to receive the book as evidence, no matter what it proved. It never was heard before that the survey was not evidence on the question of identity. And if the survey is evidence, the surveyor's book is evidence. The grant calls for a corner to the lands entered by George Jackson. The book might show where those lie. The book might prove that the survey began on the head of the Glady Fork of Stone Coal creek, and extended down it. The land claimed includes the right hand fork of Stone Coal, below the mouth of the Glady Fork, and does not include the mouth of the Glady Fork, which is a branch of the right hand fork. The grant does not say, as the survey does, 'beginning at the head of the Glady Fork of Stone Coal creek.' Hence the necessity of exhibiting the survey; because it contains evidence of the locality, not in the grant. If the surveyor's book was legal evidence, it should have been left to the jury, whether offered for one purpose or another; but it was rejected by the court.
On the question of identity, the copy of an entry is evidence. 5 Wheat. 359, 362.
The court should have instructed the jury, that the plaintiffs' grant was not evidence to support their claim.
The defendants produced the act of assembly, which established Harrison county on the 20th of July, 1784; a copy of the plaintiffs' survey, dated December 13th 1784, signed Henry Fink, assistant to S. Hanway, S.M.C.; and proved that the lands in controversy lay in Harrison, at the date of the survey. The court instructed the jury, that if the facts were so, it could not avail the defendants in this action; and that the grant was not void. If we admit, for the sake of argument, that the grant is not void, it can take no lands elsewhere than in Monongalia. And however land in another county may seem to suit the description, they cannot be the granted lands. The grant is no evidence of title to lands in Lewis, a county formed from Harrison. The jury should have been instructed that the grant was no evidence of title to land which lay in Harrison at the date of the survey. The commonwealth has granted lands in Monongalia. If you cannot find them there, you can find them no where else. Can a grant for lands in the county of Brooke pass lands lying in the county of Princess Anne? A party must identify the land according to the call of his grant. If he calls for crossing James river, he must cross James river. Is not the call for the county the most important of all calls?
Should it be contended that the surveyor of Monongalia might survey, in Harrison, lands entered in Monongalia before Harrison county was formed, it is answered, this was never authorized: and in this act the sheriff of Monongalia is specially authorized to complete his business in Harrison; but no such authority is given to the surveyor.
The court should have instructed the jury that the plaintiffs could not by parol evidence contradict the call for the county in the grant under which they claim.
There is no latent ambiguity. In Dowlie's case, 3 Coke's Rep. 9, 10, the grant was held void because the parish was wrong named. But if parol evidence could have been offered to contradict the call for the name of the parish, the grant would have been made good. A grant in the county of S. will not pass what lies in the county of D. 3 Bac. Abr. 389. But if parol evidence could have been received to contradict the call for the county, the grant would have been made good. A grant to one, as a knight, when he is an esquire, has been held void. But this would have been remedied, had parol evidence been admissible.
Parol evidence is admissible to vary or contradict the grant. 2 Cranch, 29. The name Hosmer in a grant, cannot be proved by parol to be Houseman. 12 Johns. 77. In the appendix to Pothier on Obligations, the law is thus laid down (Vol. 2, p. 210): 'But where there is an existing subject, to which a description may be properly applied, parol evidence cannot be allowed that a different subject was intended.' Here there is an existing subject, the county of Monongalia, to which the description, lying in the county of Monongalia, may be applied.
The court was asked to instruct the jury, 'that it is not competent to the plaintiffs to contradict by parol the call for the county in his grant,' and gave no instruction on that point. The court, when asked for an instruction, are bound to give the instruction asked for, or another on the same point. 2 Wash. 272, 273.
The court should have decided, that the grant under which the plaintiffs claimed, was void.
It is contended, that a grant is void if there is an insufficient or false description; or if it has been obtained on a false suggestion; or if it has been obtained by fraud; or if it has been obtained against the rules of the land office. And that in all these cases, if the objection appears on the face ...