1816.

Ross and

V.

Reed.

court for the state of Tennessee, which have settled the construction of the act of 1797. It has been deMorrison cided, that a possession of seven years is a bar only when held" under a grant, or a deed founded on a grant." The deed must be connected with the grant. This court concurs in that opinion. A deed cannot be "founded on a grant" which gives a title not derived in law or equity from that grant; and the words founded on a grant, are too important to be discarded. The act of assembly vesting lands in the trustees of the town of Nashville, is a grant of those lands, and as the defendant shows no title under the trustees, nor under any other grant, his possession of seven years cannot protect his title, nor bar that of the plaintiff. And this is to be certified to the circuit court for the district of West Tennes

see,

Certificate for the plaintiff.

(LOCAL LAW.)

ROSS AND MORRISON v. REED:

Where the plaintiff in ejectment claimed title to lands in the state of Tennessee, under a grant from said state, dated the 26th of April, 1809, founded on an entry made in the entry taker's office, of Washington county, dated the 2d of January, 1779, in the name of J. M'Dowell, on which a warrant issued on the 17th of May, 1779, to the plaintiff, as the assignee of J. M'Dowell, and the defendants claimed under a grant from the state of North Carolina, dated the

9th of August, 1787, it was determined that the prior entry might be attached to a junior grant so as to overreach an elder grant, and that a survey having been made, and a grant issued upon M'Dowell's entry, in the name of the plaintiff, calling him assigneee of M'Dowell was prima facie evidence that the entry was the plaintiff's property; and that a warrant is sufficiently certain to be sustained, if the objects called for are identified by the testimony, or unless the calls would equally well suit more than one place.

ERROR to the circuit court for the district of East. Tennessee.

The defendant in error, who was plaintiff in the court below, claimed title under a grant from the state of Tennessee, bearing date the 26th day of April, 1809, founded on an entry made in the entry taker's office of Washington county, No. 975, dated on the 2d day of January, 1779, in the name of John McDowell, for 500 acres of land, on which a warrant issued on the 17th day of May, 1779. The defendants in the court below, now plaintiffs in error, claim under a grant from the state of North Carolina to John Henderson, dated the 9th of August, 1787, and a deed of conveyance from John Henderson to the defendant, Ross, duly executed and registered. Morrison held as tenant under Ross.

At the trial of the cause, a bill of exceptions was taken by the defendants, in which was stated a transcript taken from the book procured from the office of the secretary of state of the United States, which contains reports of the lands entered in Sullivan and Washington counties; also a copy of the warrant issued to John McDowell for 500 acres of land, both of which are certified by the clerk to the commissioner of East Tennessee. Also the grants under

1816.

Ross and
Morrison

V.

Reed.

1816.

Ross and

v.

Reed.

which each party claims, the deed of conveyance from Henderson to Ross, together with the viva Morrison voce testimony of the witnesses produced. It then proceeds to state "that the defendants contended, 1st, That having the eldest grant, the plaintiff could not recover, unless he had shown a prior entry, which the law would consider special for the place now claimed, and produced satisfactory evidence that the right was vested in him. That as no proof had been given that Reed had ever purchased or paid any consideration for M'Dowell's entry, he could not, in virtue of that entry, entitle himself to a verdict. That the mere statement in the survey and grant that Reed was assignee of M'Dowell, was no evidence whatever of that fact. 2d. That if such proof had been given, still he could not recover, because the proof shows that the objects called for in the entry existed at two places, some distance from each other; and, therefore, the entry was ambiguous and doubtful. But the court charged and instructed the jury that the circumstance of a survey having been made, and a grant issued upon M.Dowell's entry, in the name of Reed, calling him assignee of McDowell, was prima facie evidence that the entry was the property of Reed. And that it was true if the calls in an entry would equally well suit more than one place, it would not be considered special for either place; but it was for the jury to determine, from the evidence, whether the place spoken of on the south side of Holston would as well suit the calls of the entry as the one on the north side; and that, except for James King's testimony, he had hardly

ever heard an entry better established than the one now under consideration."

1816.

Ross and

V.

There was a verdict and judgment in favour of the Morrison plaintiff, and the cause was brought up to this court by writ of error.

TODD, J., delivered the opinion of the court.

It is now objected by the plaintiffs in error, that the transcript first mentioned contains nothing but a naked designation of number, date, person's name, and number of acres, but no description of the land whatever; not even specifying the county where situate.

To this objection it may be answered, that it is a fact, which will appear from the reports of cases decided in the courts of Tennessee, that the books containing entries for land in the counties of Sullivan and Washington have been lost or destroyed. It is also a fact that the original of the transcript under consideration was directed, by a statute of Tennessee, to be procured and deposited in the commissioner's office; and copies therefrom, certified by the clerk, are declared to be evidence in the courts of that state; but a conclusive answer is furnished by an examination of the bill of exceptions: it was not objected to in the court below.

1

The same answers may also be given to the objection taken to the copy of the warrant.

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

Reed.

March 21st.

1816.

V.

Reed.

the land specified in the entry: the special or locative calls for appropriation of the land can be seen Ross and Morrison and examined as well from a view of the warrant as from the entry. 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. The copy of the warrant, in this case, corresponds with these regulations, and was properly received, nor was it objected to in the court below.

The practice in the courts of Tennessee, of attaching a prior entry to a junior grant, to overreach an elder grant in an action of ejectment, was brought into the view of, and recognized by, this court, in the case of Polk v. Hill et al.; it is, therefore, not now to be departed from.

The location in this case, upon the face of the warrant, appears to be sufficiently certain to be sustained, if the objects called for are identified by the testimony, or unless the calls would equally well suit more than one place. These were questions properly submitted to the jury; there was, therefore, no error in the charge and instruction given on this point. Nor was there error in the residue of the instruction. 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 M'Dowell's entry, in Reed's name, had sufficient evidence produced to