v.

posthumous children, and cases where a descent to an BARNITZ'S heir had been defeated by the subsequent birth of a LESSEE hearer heir. The argument of the Defendants, on this point, ought not, therefore, to prevail. No question CASEY. has been made as to the land specifiedly devised to John B. Hammond in fee with a limitation over to his father in fee. As that limitation over was a good executory devise, and, in the events which happened, took effect, it is very clear that the lessors of the Plaintiff cannot claim title thereto. This is indeed conceded on all sides.

The result of this opinion accordingly is, that the lessors of the Plaintiff are entitled, as heirs of John M.Connell, at the happening of the contingency, on the death of John B. Hammond, under age and without issue, to one moiety of the Church-hill lands, and the residuary estates as tenants in common with the heirs of John B. Hammond; but they are not entitled to any portion of the lands of which John M.Connell had an absolute vested fee at the time of his decease.

As, however, a tenant in common cannot in general maintain an action of ejectment against his co-tenant, and there are no facts found in this case to prove an actual ouster and to take it out of the general rule, the consequence is that the judgment, in the opinion of a majority of the Court, must be affirmed with costs.

BLACKWELL v. PATTON & ERWIN'S LESSEE.

1813.

March

6th.

Absent WASHINGTON, J. and Toon, J.

and Tennessee

ERROR to the Circuit Court for the district of Ten- By the laws of nessee, in an action of ejectment brought by the lessee N. Carolina of Patton and Erwin, against Blackwell, for 5,000 acres a deed for land of land, in Bedford county, in the state of Tennessee. in Tennessee,

executed in N. Carolina,

At the trial the Defendant took three bills of exceptions. by grantors residing there in the year

The first stated, that the Plaintiff produced in evi- 1794, proved dence, at the trial, a deed of bargain and sale in 1797 by one from I. G. and Thomas Blount, to whom it was al- of the sub

WELL

v.

BLACK- leged the land had been granted by the state of North Carolina, while it was a part of that state. The deed from I. G. and T. Blount, was executed on the 9th of PATTON & October, 1794, to David Allison. On the 29th of SepERWIN'S tember, 1797, it was proved by one of the subscribing LESSEE. witnesses before John Heywood, a judge of the Supreme Court of law and equity, for the state of North Carolina, and registered in Stoke's county.

scribing wit

nesses before a judge in N. Carolina, and

is valid, and

On the 9th of December, 1807, the hand writing of recorded in the subscribing witnesses, who were dead, and of the 1808, in the proper county Santors, was proved before Samuel Powell, one of the in Tennesee, judges of the Supreme Court of law and equity of the may be given State of Tennessee, who ordered it to be registered. At in evidence in November term, 1808, in the Supreme Court of Tenejectment. nessee, for Mero district, (in which the land lies.) the In ejectment the date of the hand writing of the grantors, and of the subscribing demise in the witnesses, was again proved, and on the 28th of December, 1808, the deed was recorded in the proper ed during the county. On the trial, (which was in June term, 1810) trial so as to the Plaintiff offered parol evidence to prove the hand writing of the subscribing witnesses and their death The first grant before the month of December, 1807, and also to prove of N. Carolina the hand writing of the grantors.

declaration

may be amend

conform to

the title.

from the state

upon an entry,

is valid, al

though issued

To the admission of this evidence the Defendant beupon a dupli-low objected, but the Court over-ruled the objection, cate warrant, and admitted the deed in evidence.

the original be.

ing in the hands of the

nerel, al

issue upon the

The 2d bill of exceptions stated that the Plaintiff also ofsurveyor ge- fered in evidence a deed to his lessors, bearing date after though a sub- the demise laid in the declaration, to the admission of which sequent grant deed the Defendant objected, but the Court admitted it to original war be read in evidence, saying the date of the demise was imrant for other material, or the Plaintiff might amend his declaration, which he did, before the jury retired from the bar, by altering the date of the demise.

lands.

The 3d bill of exceptions stated, that the Defendant offered evidence to prove, that the original grant or patent from the state of North Carolina to 1. G. and Thomas Blount, was issued upon a duplicate warrant, while the original warrant was in the hands of the surveyor general; and that I. G. and Thomas Blount afterwards obtained another grant or patent from the state

of North Carolina for other lands upon the original war- BLACKrant. To the admission of this evidence, the Plaintiff objected, and the Court rejected it.

MARTIN, for the Plaintiff in error.

1. The deed from I. G. and T. Blount to Allison, was not proved and registered according to the laws of North Carolina, or of Tennessee, so as to be valid.

The law of North Carolina, 1715, ch. 30. §. 5. p. 18, requires every deed to be acknowledged, or proved, in open Court, or before the chief justice, and registered, within 12 months after its date, in the county where the land lies. This deed bears date the 9th of October, 1794, was never acknowledged nor properly proved, and was not registered till the 28th of December, 1808.

By the law of England, a deed of bargain and sale is inoperative, until enrolled; in the same manner as a deed of feoffment does not operate until livery of seizen. A deed by a joint-tenant-a deed for the reversion and payment of rent to the bargainor are good before enrolment. The bargainee is not seized before enrolment, and if he die before enrolment, his wife is not entitled to dower, although when enrolled it relates back to its date. 1 Bac. Abr. 473. 2 Bl. Com. 311. 3 Wood's Conveyancer, 32 to 34.

2. The Court ought not to have permitted the deed to the lessors of the Plaintiff, dated after the demise, to be given in evidence on that declaration, nor to have suffered the Plaintiff to amend his declaration after the jury was sworn. 2 Str. 1086, Beddington v. Parkhurst. Runnington, 87. Bul. N. P. 105, Basset v. Basset.

Courts have gone no further in permitting amendments in ejectment, at the trial, than to enlarge the term which had expired, or to correct grammatical errors. Although the declaration is a fiction in form, yet what is of substance must be truly set forth.'

3. The act of North Carolina, (1783, ch. 2, p. 322, 9, 10 and 11) which prohibits the issuing of a grant VOL. VII.

61

WELL

r.

PATTON &
ERWIN'S
LESSEE.

BLACK upon a duplicate warrant, was in force when this warWELL rant was issued. It was a fraud upon the state, for only บ. one warrant was paid for, and yet it was made to opePATTON & rate as two.

1st. There were other laws of North Carolina, and of Tennessee, extending from time to time the term for registering deeds, so that any deed, even of 50 years standing, may now be registered.

The probate of the deed, before Judge Haywood, on the 29th of September, 1797, brings the deed within the act of Tennessee, 1809, Nov. 23, ch. 100, 4, p. 129, by which it is enacted, "That all deeds, or mesne ἐσ conveyances, for land within this state, which shall

have been made and executed out of the limits of this "state, and shall have been proven by one or more of

the subscribing witnesses thereto, or acknowledged "by the grantor or grantors, before any judge of any "Court in another state, or before the mayor of any

city or corporation in another state, and shall have "been registered in this state in the county where the "land or any part thereof lies, within the time required

by law for registering the same, such probate and re"gistration shall be good and sufficient to entitle the "same to be read in evidence in any Court within this "state."

But the probate and the admission to registration is conclusive on this point.

To show that the term for registering deeds had been kept open until the present time, he cited the following laws: Iredell's revisal of the laws of North Carolina, p. 83, 1741, c. 1, § 2, 3-p. 173, 1756, c. 6, § 2, 3-p. 196, 1760, c. 6, § 2-p. 213, 1764 p. 224, 1766-p. 246, 1770-p. 269, 1773-p. 289, 1777-p. 424, 1782 p. 487, 1784 p. 590, 1786-p. 640-1 Sess. a. a. p. 665, 668. Laws of Tennessee, 1794, c. 22, § 3. id. 1796, 1797, 1801, c. 20, 1-1803, c. 57-1805, c. 16, 61-1807, c. 85, 61, 2-1809, c. 100, 4.

20. MARSHALL, Ch. J. Pass over the 2d point.

WELL

CAMPBELL. 3d. This was the first grant which issued BLACKupon this entry. It was good when it issued, and cannot be invalidated by a subsequeut grant on the same warrant. Both cannot be void. If either, it must be the last. PATTON & ERWIN'S March 11h....MARSHALL, Ch. J. delivered the opinion LESSEE. of the Court as follows:

The writ of error in this case is brought to reverse a judgment obtained by the Defendants in error against the Plaintiffs in an ejectment brought in the Circuit Court of West Tennessee. At the trial, the Plaintiffs in that Court offered in evidence in order to make out their title, a deed bearing date the 9th of October, 1794, from J. G. Blount and Thomas Blount, of North Carolina, to David Allison, of Philadelphia, which deed was recorded in the county in which the lands lie on the 28th day of December, 1808. The Defendants objected to the admission of this deed, and excepted to the opinion of the Court over ruling the objection.

The original law requiring the enregistering of deeds, passed in North Carolina, (then comprehending what is now the state of Tennessee,) in the year 1715. This act requires that the deed shall be acknowledged by the vendor, or proved by one or more evidences upon oath, either before the chief justice for the time being, or in the Court of the precinct where the land lies, and registered by the public register of the precinct where the land lies within twelve months after the date thereof. It was afterwards enacted, that the deed might be registered by the clerk of the county in which the land lies, and the time for the registration of deeds was prolonged until Tennessee was erected into an independent state, after which the time for enregistering of deeds continued to be prolonged by the legislature of that state.

In the year 1797, the legislature of Tennessee enacted a law, declaring that deeds made without the limits. of the state should be admitted to registration on proof that the same was acknowledged by the grantor, or proved by one or more of the subscribing witnesses in open Court, in some one of the Courts of the United States, and on no other proof whatever, except where the party holding such deed shall have the same proved