Volume 6 — Tennessee Reports

<p>[ Administration. — Debts paid by Representative out of his own Means. — Substitution. — Limitation. — “ Glaim.” — Dill for Reimbursement.]</p>

[Depositions.— Variance between Caption and Commission.] Appeal from the Circuit Court for the county of Montgomery. In ejectment. One point was, that a deposition of Prince was obtained * upon production of a notice proved in open court before the clerk, and by him indorsed with the probate. The alleged cause for the objection is that it was exparte.

<p>[Joinder in Torts. — Process as to one. — New Trial. — Negligence. — Verdict— Cure of Defects by.~\</p>

[Appeal. — Affirmance.^ Appeal to the Dixon Circuit Court from the County Court, and from the Circuit Court to this court. The cause of appealing to this court was, that the appeal not having been brought up in 15 days before the term, the judgment of the County Court was affirmed ; whereupon an affidavit was filed showing causes for a new trial, which was refused.

<p>[_Bonds — Declaration on. — Damages. — New Trial. — Affidavit of Party alone.]</p>

<p>[ Uncertainty in Judgment.]</p>

<p>[ Motion against Sheriff for Non-returning. ]</p>

<p> \Locative Interests.^ </p>

<p>[Fraud. — Imbecility. — Assignee of Imbecile.']</p>

<p>\_Execution upon Trusts. — Equity of Bedemption.~\</p>

<p>[Injunction — When granted — Disobedience of.']</p>

f Striking Plea from Docket. 1 The defendant below pleaded in the County Court two pleas, and after tlie cause was removed into the Circuit Court the defendant’s attorney wrote on the trial docket where the other pleas stood, non assumpsit, and signed his name; and in the term a jury found a verdict.

[_New Trial. — Excessive Damages.] GreeN had declared against Barry in the Circuit Court of Sumner for an assault and battery, and obtained a verdict and judgment for |600. The circumstances were now detailed in the bill and answer, which will presently be adverted to.

<p>[Rescission. — Defective Title. — Sci. Fa. naming Heirs. — Lien for Purchase Moneys</p>

<p>\_Fraud. — Concealment. — Rescission.^</p>

<p>[Injunction. — Erroneous Judgments.]</p>

<p>f Covenant to pay in Specific Articles. — Damages on Breach. — Evidence. Paper not read to Jury.']</p> <p>brought an action of covenant ■against M’Donald in the County Court of Lincoln, which was af-terwards removed by appeal to the Circuit Court; the issue was on a plea of covenant performed; jury found for the plaintiff $188 damages.</p> <p>The covenant is dated 21st August, 1812, and is signed * and sealed by both parties, and “ witnesseth, that whereas the said John hath advanced unto the said Robert $ 125 in cash, now it is understood that said Robert is hereby bound to pay" the said John the amount of the above sum in potash, at the price of five dollars per hundred, with all reasonable expenses to the Sauter cave, the potash to be .delivered in 90 days.”</p> <p>The defendant’s counsel contended that the true criterion of damages for a breach of this covenant was the consideration money, $ 125, and interest. The plaintiff insisted that the true criterion of damages was the value of twenty-five hundred weight of potash at the Sauter cave, 90 days after the date of the covenant, with interest from that time. Of this latter opinion was the court, and permitted the plaintiff to give evidence of that nature. He produced one witness, who deposed that early in January, 1813, he bought potash at the cave for nine dollars per hundred, but did not know what it had sold for before ; heard somebody say that it had sold some time before his arrival at the cave at six dollars, but neither recollects who said it, or how long before his arrival it should have been sold at that price. The judge charged the jury that the true criterion of damages was the value of the article at the time when it ought to have been delivered; and to enable them to arrive at that criterion, proof of the value both before and after was competent evidence to be left to them.</p>

<p> [Execution of Trusti] </p>

\Tax Sales. — Publication.] This was an ejectment brought by the defendant in error in the Circuit Court of Wilson County. The plaintiff below claimed title under a grant to Stockley Donel-son, dated 18th of May, 1789, and a deed from Donelson to hinf, dated 17th of August, 1798.

<p>[Proof of Signature. — Statute of Limitations.']</p>

[ Trespass. — Defense. — Justification.'] Page sued Barrow in the County Court of Davidson in an action of trespass quare clausum fregit, for treading * down his grass, throwing down his fences, and taking and carrying away fodder and corn, &c. To the declaration, the defendant pleaded, first, not guilty; second, not guilty of entering with force and arms, treading down the grass, and throwing down the fences. On these pleas issue was joined.

<p> [Landlord and Tenant.'] </p>

<p>\Land Law. — Entries. — Relation of Grant. — Evidence.]</p>

<p>[.Breach of Warranty of Land. — Eviction.^</p>

<p> [Construction of WillsJ] </p>

<p>\_Land Law. — Excess in Grants.~\</p>

<p>[.Depositions. — Notice.~\</p>

<p>[Land Law. — Boundary.]</p>

[Damages — Liquidated and Unliquidated.] Aftee. the affirmance of this judgment by the court, Mr. Perkins moved for 12^ per cent, under the act of 1809, ch. 49, § 27; and after much argument at the bar, the court took time to consider, saying it was fit the practice should be settled.

<p>[Limitation. — Disabilities.]</p>

<p>[Removal of Cause into Federal Court. — Proof of Value of Land. —North Carolina Grant issued by Tennessee under Cession Jot.]</p>

<p>[Land Law. — Entries.']</p>

<p>\_Tfew Trial.— When Motion to he made.— Setting aside at Subsequent Term.]</p>

<p>\_Prosecution Bonds. — Record. — Oyer.']</p>

<p>[Administration. — Perfecting Titles. — Equitable Conversion. — Evidence of Handwriting. — limitation as to Trusts.~\</p>

<p>\Land Law. — Conflict of Bntriesi]</p>

<p>[.Advancements. — Trusts. — Voluntary Conveyances.]</p>

<p>[Purchaser under Sheriff’s Deed. — Judgment. — Death after Teste.]'</p>

<p>[Administration. — Writer of Depositions. — Appearance. — Waiver of Notice. — Pleading must advance. — Acknowledgment of Assets. — Implied Promise — How Pleaded.~\</p>

<p>\Land Law. — Gh'ants attached in Oollateral Actions. — Verity of Rec- ' ords. — Trial by Juryi]</p>

<p>[.Administration. — Limitation. — Amendment. — “ Claim.” — Certiorari — When granted. — Dismission. — Departure in Pleading.~\</p>

[.Administration. — Payment by Representative out of his own Means. — Substitution.] This was a bill in equity, stating the death of Tate several years ago, intestate; that administration of his estate was committed to the plaintiff by the proper court in North Carolina, where the intestate resided at the time of his death ; stating, also, payments of debts justly due from him, the intestate, to an amount exceeding that of his personal estate, and a sale of all his lands in…

[ Concealment. — Rescission. — Lien for Purchase Money. — Substitution.] This was a bill in equity, which stated that Downs had a tract of land in Stewart County which Jackson wished to purchase, and, applying to Downs, found that he had given a deed for it to Jones, to indemnify him against the payment of $160 which he had been surety for in a bond to Haggard.

<p>[Sale of Land for Taxes. ]</p> <p>The facts of this case and the errors assigned are stated fully in the opinion of the court.</p> <p>Counsel for the defendant in error. This action of ejectment came on to be tried in the Circuit Court in the County of Montgomery, in August term last. Upon the trial the plaintiff offered in evidence three deeds purporting that the land in question was conveyed to the plaintiff by the sheriff, who had sold the same for taxes, by virtue of an execution which issued from the County Court of Montgomery commanding him to sell the lands in question. He produced also a record showing the judgment of the County Court, ordering said lands, with others reported by the sheriff, to be sold. The Circuit Court refused to receive said deeds in evidence. A bill of exception was filed to the opinion of the Circuit Court in this respect. Errors have been assigned, and upon that assignment the question before this court now is, whether the said deeds ought to have been received. And we now beg leave to submit to your honors that the County Court acted by virtue of a special * power delegated to them by the acts of Assembly of 1797, ch. 2; 1798, ch. 9; 1799, cc. 4, 16; 1801, ch. 8; 1808, ch. 2, §§ 12, 13; and like all special jurisdictions should state in their proceedings all those circumstances upon which their jurisdiction is founded. It should appear, for instance, that the County Court held next after the first day of January appointed a justice of the peace to take the list of .taxable property within the district, and that he advertiséd the same, at six of the most public places in his district, 15 days at least previous to the time appointed to take such lists (1797, ch. 2, § 3) ; that the sheriff, after receiving the list of taxable property from the clerk, had appointed the day and place, in the captain’s district, when and where he would attend for the purpose of receiving taxes, and that he had advertised the same 15 days at least, at six of the most public places in the district, and that after the lapse of 20 days he had endeavored to distrain, and could find no personal property upon which he could distrain for the taxes. And it should appear that he made a report to the court of this fact. None of these requisites appear upon this record. The sheriff reported certain persons who had not given in their lands for taxation, and the court gave judgment for a double tax, and ordered the lands to be sold. The words, here used were not the proper words for a judgment. It is ordered, adjudged, and decreed, that said lands he sold, &c. It does not appear whether such publication in the Gazette, which was to precede the judgment by the act of 1803, ch. 2, § 14, was ever made or not. By the section last mentioned execution is to issue as in other eases; that is, as we understand it, against the goods and chattels, lands and tenements of the defendant. But that execution which did issue was against the lands only which were reported. And thereby the sheriff was obliged to sell lands although there might be personal property sufficient.</p> <p>* The counsel per contra. If the court had' no jurisdiction, then the judgment was void, and the objection now made may be urged with propriety. But if the court had jurisdiction, and only erred in the exercise of it, then the judgment was only erroneous, and a sale made by execution under it was equally valid as by one under the most correct judgment. Bull. N. P. 66; 83 ; 2 Ba. Ab. “ Error,” M, S, 3; 8 Report, 19,143. The authority committed to the County Court by the acts of Assembly, which the counsel on the other side have referred to, is not like an authority committed to commissioners. The court is to act as it does in other matters added to their jurisdiction from time to time by other acts of Assembly. They need not set forth the circumstances in which they act to show their jurisdiction, as in the special cases alluded to by the counsel on the other side. 1 Term, 426 ; Salk. 273 ; 10 Report, 76 ; Cro. C. 395; 1 Ventr. 220; 2 Levenz. 131; Cro. C. 355; 5 Report, 100 ; 11 Rep. 62, 64; 1 Croke, 309; 1 Jones, 171; Wils. 384 ; 2 Str. 509, 994 ; Hard. 478, 480 ; 1 Yent. 273 . Carh. 346; 21 R. Rep. 1142; Salk. 703; 1 Wils, 153; 2 Wils. 205, 384; 4 Com. D. 491; 5 Rept. 99.</p> <p>Their jurisdiction upon this subject is known by the same means as their jurisdiction is in case of attachments, prison bound bonds, motion against sheriffs and constables who .have received moneys on executions, sureties who have paid the debts of their principals, and the like. Their jurisdiction is known by the general law which has created it and added to it at different times.’ And contemporaneous exposition proves the position we contend for; for it is known to all of us that no County Court in this State have ever stated on the record where they have given judgment for the sale of lands for taxes, all those circumstances which are now required by the opposite * counsel to appear in such record. If such circumstances must by law be stated, then not one good judgment has ever been rendered, nor one valid sale has ever been made in this State. Is it possible that the whole people of Tennessee could be so mistaken with respect to the meaning of the laws passed by their Legislature ? We must either suppose this, or not accede to the argument of the counsel on the other side. We do not doubt, indeed, that all the circumstances mentioned by *he counsel on the other side, ought to precede the judgment of the County Court. But, on the other hand, we are to presume in favor of the judgment, that the court were satisfied before giving judgment that all these requisites had been complied with, on the part of the government. Semper presumitur pro certentia is an useful maxim of the common law (1 Burrow, 629; Bull. N. P.173; 1 Wash. 159; 1 Hay. 414; 1 Stra. 631; 2 L. R. 1405; Luter. 1549; 3 Rep. 58; 1 Mod. 117 ; 1 Yentr. 257 ; 2 Atk. 44; Str. 526 ; Cowp. 704; 2 Bur. 1060; 3 Keble, 310, 311; 2 Str. 1129; Cro. C. 171, 186, 151, 282 ; Plow. 441), and may be resorted to on this occasion with peculiar propriety.</p>

<p>\Forgery. — Indictment.]</p>

<p>\_Land Law. — Conflict of Entries.']</p>

<p>[Evidence. — Admissions of Party.]</p>

[Settlement of Administration.'] This was a bill for a distributive share of an intestate’s estate. The defendant, Yandel, and the wife of the other defendant, during her widowhood, were the administrators. Yandel, in his answer, • stated a settlement made with the County Court. And the question was, whether, notwithstanding this settlement, * the administrator was still bound to account to the distribu-tee.

<p>\_Entries. — Constitutional Law.~\</p>

[Misrepresentation. — Misldke.~\ Fbom the bill, answer, and testimony, it appears that Thomas and Robert King procured a grant, No. 577, from the State of North Carolina for 1,000 acres of land, in what is now Roane County, * and that the defendant, claiming title to said tract by deed of conveyance from them, sold 333^ acres to Jacob Wassum, and agreed to have the tract divided into three shares by a surveyor; that Jacob Jones, a surveyor, did lay off and divide the land…

[Judgment without Notice. — Principal and Surety.'] The defendant below was moved against in the County Court, as principal, to recover back money paid by him for the plaintiff as surety. He had no notice, and judgment was entered against him. He removed the cause into the Circuit Court by certiorari. He stated in his petition that he had paid to his surety an indemnification before judgment was entered against him.

<p>[.Preemptions. — Dower. ]</p>

\_Scire Facias naming Heirs.~\n This was a writ of error, upon which errors were assigned, for that the Circuit Court who tried this cause, which was an action in ejectment, did not suffer the plaintiff to produce and give in evidence the paper marked C. This was a deed from the sheriff of Montgomery to Seawell, for the lands in question.

<p>[ Guardian and Ward. — IAmitation.\</p>

<p> [íSale of Land for Taxes.~\ </p>