Thomas Todd

“ It remains to consider whether the doctrine has ever been established, that a mere superior outstanding title in a third person, with whom the defendant has no privity, can be given in evidence in an ejectment, to defeat a possessory title in the plaintiff, which is superior to that of the defendant. ”

“ If the general course of the one was south, and the other north, and the other running south, should turn east to form the junction, and the one running north should continue its course, then the land below the junction, would by every person be considered as dividing the one stream from the other. Take as an example that branch of Spencer's Creek, called Harper's Fork; suppose it the main stream, and that it formed a junction with Slate Creek instead of Spencer's Creek, could a doubt exist that the land on the lower side was the dividing ridge between that stream and Slate Creek? ”

“ The register of the land office is not at liberty to examine testimony, and to exercise his own judgment respecting the right of an applicant for a military land warrant. He was originally directed to grant warrants to the officers or soldiers 'producing to him a certificate of their claims respectively from the Commissioner of War, and not otherwise.' When the office of Commissioner of War was put down, this duty devolved on the Executive Department, whose certificate was as obligatory on the register, as that of the Commissioner of War had been. ”

“ In the construction of the statutory or local laws of a state, it is frequently necessary to recur to the history and situation of the country, in order to ascertain the reason, as well as the meaning, of many of the provisions in them, to enable a court to apply, with propriety, the different rules for construing statutes. ”

“ It is, indeed, too plain for argument, that if a deed imperfectly executed would not convey any estate or interest in the land, a parol exchange, or parol proof of an intention to convey the same in exchange, cannot be permitted to have any such effect. ”

“ We have therefore attentively examined the record, and are of opinion it contains enough to get at and decide the merits.
It has been long and well established as a rule of law and equity, that a party must recover on the strength of his own title, and not on the weakness of his adversary's title. ”

“ In some states in the union, no court of chancery exists to administer equitable relief. In some of those states, courts of law recognise and enforce in suits at law, all the equitable claims and rights which a court of equity would recognise and enforce; in others, all relief is denied and such equitable claims and rights are to be considered as mere nullities at law. ”

“ From the preamble of the act, as well as other parts of it, it is clearly discernible that the legislature intended 'to parcel out their vacant lands to industrious people, for the settlement thereof, and increasing the strength and number of the people of the country, and affording a comfortable and easy subsistence for families.' Would these objects be attained by permitting settlements encroaching on the lands lately set apart, by treaty, for the use of the Indian tribes? ”

“ This certificate is filed and preserved in the office as the document on which the warrant issued. It is as much a part of the record as the warrant itself.
A warrant and survey authorize the proprietor of them to demand the legal title, but do not, in themselves, constitute a legal title. Until the consummation of the title by a grant, the person who acquires an equity holds a right subject to examination. The validity of every document is then open to examination, whatever the law may be after the emanation of a patent. ”

“ It is perfectly clear, that no title to lands can be acquired or passed, unless according to the laws of the State in which they are situate. The act of Ohio regulating the conveyance of lands, passed on the 14th of February, 1805, provides, 'that all deeds for the conveyance of lands, tenements, and hereditaments, situate, lying, and being within this State, shall be signed and sealed by the grantor in the presence of two witnesses, who shall subscribe the said deed or conveyance, attesting the acknowledgment of the signing and sealing thereof ”

“ Under the laws of North Carolina for appropriating the vacant lands, an entry is made with the entry taker before a warrant issues: the warrant describes the land specified in the entry: the special or locative calls for appropriation of the land can be seen and examined as well from a view of the warrant as from the entry. ”

“ The respondents, in their answers, deny the validity of O'Neal's entry; allege that it is vague and uncertain, and that the survey made on it includes no part of the land described in the entry, and if properly surveyed would not interfere with any part of the land to which they claim title; that the creek selected by the complainant as the third creek, in the entry of Mason, on which that of O'Neal depends, is not in truth and in fact, the third creek running into the Ohio above the mouth of the Little Miami River ”

“ So in an ejectment by a cestuy que trust the tenant may set up in his defence the legal outstanding title in the trustee. Doe v. Staples, 2 T. R. 684. For in all these cases the evidence shows that the plaintiff has no subsisting possessory title at law, and therefore, he ought not to be permitted to disturb the tenant's possession. The general rule is, that possession constitutes a sufficient title against every person not having a better title; and therefore the tenant may stand upon his mere naked possession until a better title is shown. ”

“ Browder, applies with equal, if not greater, propriety, to this case. And, although at different periods different sections of these reservations have been subjected to appropriation by entries and surveys, it has been in consequence of the several treaties with the Indians, by which the boundaries of the reservations have been altered, and the Indian claim extinguished; but it is believed, that the mere extinguishment of the Indian title did not subject the land to appropriation, until an act of the legislature authorized or permitted it. ”

“ It is a general principle to presume that public officers act correctly until the contrary be shown. It must, therefore, be presumed that the officer, when he surveyed McDowell's entry, in Reed's name, had sufficient evidence produced to satisfy him that Reed was the owner of it, and this presumption is increased by the act of another officer in issuing the grant ”

“ By the compact settling the boundary line between Virginia and Tennessee, and the laws made in pursuance thereof, it is declared, that all claims and titles to lands derived from the governments of Virginia, or North-Carolina, or Tennessee, which have fallen into the respective states, shall remain as secure to he owners thereof, as if derived from the government within whose line they have fallen, and shall not be in any wise prejudiced or affected in consequence of the establishment of the said line. ”

“ It will be admitted, that where a writing has been voluntarily destroyed, with an intent to produce a wrong or injury to the opposite party, or for fraudulent purposes, or to create an excuse for its non-production, in such cases the secondary proof ought not to be received; but in cases where the destruction or loss (although voluntary) happens through mistake or accident, the party cannot be charged with default. ”

“ We are therefore of opinion, that it would be extending the rules of construction too far to make this substitution, in support of the mistake of the few, against the knowledge of the majority; if a substitution could be permitted in any case. ”

“ A bill of exceptions was taken to these proceedings by the defendants; and the jury found a verdict for the plaintiff, upon which a judgment was entered for the plaintiff, and the present writ of error is brought by the defendants to revise that judgment. ”

“ In order to uphold and support an entry, it is incumbent on the party claiming under it, to show that the objects called for in it are so sufficiently described, or so notorious, that others, by using reasonable diligence, could readily find them. ”

“ They have brought an ejectment against the heirs of Justus Miller, who having, as they say, the elder equitable, though the junior legal title, have filed this bill to enjoin proceedings at law, and compel Neville's heirs to convey the legal title to them. ”

“ However broad and extensive the words of the act may be, authorizing the entry takers of any county to receive claims for any lands lying in such county, under certain restrictions, yet, from the whole context of the act, the legislative intention, to prohibit and restrict entries from being made on lands reserved for Indian tribes, may be discerned. ”

“ Rep. 202. goes farther, and decides that a mere intruder upon lands shall not be permitted to protect his intrusion in a suit by the person upon whom he has intruded, by setting up an outstanding title in a stranger. And in Smith v. Lorillard, 10 Johns. Rep. 338. all the authorities were reviewed, and it was held that it is not necessary for the plaintiff in ejectment to show, in every case, a possession of twenty years, or
a paper title; that a possession for a less period will form a presumption of title sufficient to put the tenant upon his defence ”

“ In consequence of various frauds respecting warrants, they were by law to be submitted to a board of commissioners, and if decided to be valid, the original was deposited with the commissioner, and copies, certified by the clerk, were to be received in evidence. ”