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DANFORTH v. WEAR.

March 1, 1824

DANFORTH
v.
WEAR.



ERROR to the Circuit Court of West Tennessee.

The opinion of the court was delivered by: Mr. Justice Johnson delivered the opinion of the Court.

Feb. 15th.

This cause was argued at the last term, and again argued at the present term, by the Attorney-General and Mr. Swann,*fn1 a for the plaintiff, and by Mr. Williams*fn2 b , for the defendant.

March 1st.

This is one of those cases which not unfrequently occur, in which, for want of the scrutinizing eye of the party interested to maintain a judgment below, the Court there is made to appear to have given a decision very different from that actually rendered. But, whatever may be the opinion of this Court, independently of the record, we are concluded by the bill of exceptions, and must decide according to those questions which the record presents.

The parties are citizens of the same State, but jurisdiction is given to the Courts of the United States, by the fact of their claiming title to the land in controversy, under grants from different States, to wit, the States of North Carolina and Tennessee.

The facts stated in the bill of exceptions, taken in connexion with the laws of the two States and public treaties, sufficiently exhibit to this Court, that the grant from the State of North Carolina, under which the plaintiff made title, although commencing in, and embracing, a tract of country over which the Indian title had been extinguished, yet extended into, and included, a large body of land, over which the Indian title existed at the time of the survey, but has since been extinguished. Had the case, then, set forth that the land covered by the defendant's grant lay within the country which was subject to the Indian title, at the time of Danforth's grant, and bore date subsequent to the extinguishment of the Indian title, it would, probably, have exhibited a true view of the case which the Court below was called on to decide.

But, so far from exhibiting this State of the case, the facts admitted, not only do not confine the controversy to the tract of country that lay within the Indian boundary, but, taken in their literal meaning, expressly admit the contrary.

The words of the admission are, 'that the defendant was in possession of the land claimed by the plaintiff.' And when we come to inquire what land the plaintiff claims in the suit, we find it to be the whole 100,000 acres, 'the beginning corner of which, and a portion of the land covered thereby, lay in a tract of country to which the Indian title had been extinguished, prior to making the survey and issuing the grant.

Here, then, we have the parties, contrary to all the probable truth of the case, contending about a title to land lying without the Indian boundary at the time it was surveyed for the plaintiff in ejectment.

But we must take the case as we find it on the record, and decide accordingly.

It appears, then, that the plaintiff's grant was rejected in the Court below, and not permitted to be read to the jury. This rejection could only be sustained upon the ground that it was wholly void, or wholly inadmissible in that cause. For if the grant was good but for an acre of the land claimed in the action, the Court could not have withheld it from the jury.

As to lands surveyed within the Indian boundary, this Court has never hesitated to consider all such surveys and grants as wholly void; but as the total rejection of the grant, according to the case stated, goes to its validity as to that part of the land also which lay without the Indian boundary, there must be found some other ground for sustaining the decision, than that which invalidates surveys executed in the Indian territory.

In the present case, there can be but two such grounds supposed to exist; either that there was no law authorizing the survey in any part of the land granted, although without the Indian boundary, or, that the whole was affected by the ...


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