WILSON v. SPEED. WILSON V. SPEED. An assignee tion-warrant ERROR to the district court of Kentucky, on a of a preempjudgment which dismissed the caveat of Wilson against is held to be a Speed. competent witness, if the facts inproved by his tended to be not tend to support the party produ cing him. title of the The caveat was in these words: "Let no grant issue to James Speed, a citizen of the state of Kentucky, for 139 acres of land, said to be surveyed upon an en- testimony try of 200 acres, by virtue of a treasury-warrant, number 13,800, the 24th of November, 1782, and the survey dated the 10th day of November, 1797, because John Wilson, a citizen of the state of Virginia, claims the same; part by virtue of a survey made on his settlement-right, the 20th day of January, 1786, the plaintiff's and part by virtue of a survey made on the entry of caveat, in his preemption-warrant, on the 20th day of January, Kentucky, 1786, for Andrew Cowan, and assigned by him to port to be a William Dryden, for his use; which claims are of a judgment superior nature to the said Speed's. April 22d, 1799." upon the me (Signed) "JOHN WILSON." The facts appearing upon the record, so far as they are pertinent to the questions before this court, were as follows: In the year 1776, Wilson made an improvement, by raising a crop on the land, and built part of a cabin. In consequence of this improvement, he obtained, on the 16th of February, 1780, a certificate for a settlement-right to 400 acres, and a right of preemption to 1,000 acres. On the same day Andrew Cowan obtained a certificate for the preemption of 1,000 acres, on account of marking and improving the same, in the year 1776, adjoining the lands of John Wilson on the north side, to include his improvement. A general dismissal of does not pur rits. WILSON V. SPEED. On the 23d of October, 1780, Andrew Cowan entered a preemption-warrant for 1,000 acres, on the head-waters of Boon's Mill Creek, to include his cabin, and the head-waters of several small branches running into Kentucky and Dick's river. "Also, as assignee of John Wilson's one thousand acres, adjoining the above, including said Wilson's cabin." On the 29th of April, 1783, John Wilson entered "400 acres of land, by virtue of a certificate for settlement, lying on a dividing ridge between the waters of Kentucky, and Dick's rivers, to include part of both waters, and his improvement." These 400 acres were surveyed for Wilson on the 20th of January, 1786; and were never assigned by him. On the same day, the 1,000 acres, upon the preemption warrant, were surveyed for Andrew Corvan, us assignee of Wilson. On the back of this original certificate of survey, was written an assignment, purporting to be from Andrew Cowan to William Dryden, and attested by "Young Ewing." And also an assignment, (made by order of Garrard county court, during the pendency of the present caveat) by certain commissioners, in behalf of the heirs of Dryden, to William Buford. On the 24th of November, 1782, James Speed, the defendant, entered 200 acres upon a treasury-warrant, the survey upon which was the cause of the present caveat. This survey was for 139 acres, part of the 200, dated the 10th of November, 1797, and interfered with Wilson's survey of 400 acres, upon his settlement-right, and with that for 1,000 acres preemption, which were surveyed in the name of Andrew Cowan, as assignee of Wilson. Upon the inquiry into the facts before the jury, the plaintiff, Wilson, took two bills of exceptions. The first stated, that he offered to produce the said Andrew Cowan, (who had released to the plaintiff and all claiming under him, all his, the said Cowan's, right to the land, &c.) to prove, that although the preemption-warrant for the 1,000 acres was taken out in his name, it was not taken out by him, or with his privity ; and that, although the entry was in his name, it was not made by him, or with his privity. And also, to prove, that he never did, and does not now, set up any claim or title to the said preemption, or any part thereof. Also, to prove, that the assignment on the original survey of the said preemption, now brought into court by the register of the land-office, purporting to be an assignment made by the said Cowan to William Dryden, was not executed by him; the execution of the same not being proved by "Young Ewing," the attesting witness to the same. But the court was of opinion, that the said Cowan was not a competent witness, and excluded him from giving testimony. The 2d bill of exceptions stated, that, after the testimony of Cowan was excluded, the plaintiff offered to produce Charles Campbell, to prove that the said assignment, and the signature thereunto, as well as the pame of the attesting witness, were in the hand-writing of William Dryden; to the admission of which testimony the defendant objected, alleging, that "Young Ewing," the subscribing witness, ought to have been produced, and the court being of that opinion, the testimony of Charles Campbell was also excluded; and the caveat was dismissed, with costs. Hughes, for the plaintiff in error, contended, that the judgment of the court below was erroneous, for two reasons. 1st. Because the witnesses who were rejected, were competent. And, 2d. Because the caveat ought not to have been dismissed, as to that part of the defendant's survey which interfered with Wilson's survey of 400 acres, upon his settlement-right. WILSON V. SPEED. WILSON V. SPEED. 1. As to the rejection of the witnesses. If Cowan had any interest, it was removed by the release. And if it be alleged, that he ought not to be permitted, upon the ground of impolicy, to discredit his own paper, the answer is, that that principle has been applied only to negotiable paper; but here the witness is called merely to disprove what is alleged to be his hand-writing. It is to show, that he never put his hand to the paper, and not to invalidate a paper to which he had given a credit, by subscribing his name. The counsel for the defendant below relied upon the case of Walton v. Shelly, 1. T. R. 296; but, besides the inapplicability of the case, it has been overruled by that of fordaine v. Lashbrooke, 7 T. R. 601. But Campbell's testimony ought not to have been rejected. The court rejected it on the ground, that "Young Ewing," the subscribing witness, ought to have been produced. It is true, that if we had wanted to establish the assignment from Cowan as genuine, it would have been incumbent upon us to have produ ced Young Ewing, or accounted for his absence. But, if the assignment was fictitious, how was Young Ewing to prove that Cowan did not execute it? He could only say, that his own name was not written by himself, and that he did not subscribe his name as a witness to that instrument; but it does not necessarily follow, that Cowan did not execute the assignment. The testimony of Young Ewing was not the best evidence of the fact that the plaintiff wished to prove. Whereas, Campbell could have proved expressly, that the whole assignment and signatures were written by Dryden, and not by Cowan and Ewing, 2. But the judgment is erroneous, because it dismissed the caveat, and did not decide which of the parties "hath the better right." It does not appear to have been decided upon its merits; particularly, as far as the plaintiff claimed a settlement-right. Breckenridge, Attorney-General, for defendant. The testimony of Cowan was properly rejected on three grounds. 1. Because it went to prove a title different from that set up by the plaintiff. The act of assembly requires, that the caveat should express "the nature of the right, on which the plaintiff therein. claims the land." The caveat states, that he claims "by virtue of a survey, made on the entry of his preemption-warrant,' "for Andrew Cowan, and assigned by him to William Dryden, for his" (the plaintiff's) "use." The proof offered was, that the survey and warrant never were assigned by Cowan. The plaintiff, therefore, wished to bring proof to contradict his own allegations. The jury are, by the land-law, to find "such facts as are material to the cause, and not agreed by the parties." But the facts offered to be proved, were foreign to the cause. 2. Because the testimony went to contradict and falsify a record. According to the uniform decisions of the courts in Kentucky, warrants, entries and surveys, are matters of record, as much as the patent. The records produced by the plaintiff, show, that the warrant, entry and survey, are in the name of Cowan, and that Cowan assigned to Dryden, and that Dryden's heirs, by a decree of Garrard county court, assigned to Buford. The facts would have been contradicted by the testimony offered. But if the plaintiff could be permitted to invalidate or falsify the record, it could not be done on the trial of a caveat, which is intended as the means of trying legal rights to incipient titles-titles which are on their passage to maturity. Ante, vol. 1, p. 66. It is a proceeding in derogation of the common law, and ought to be strictly pursued. If Cowan has no title, or is only a trustee, this inquiry cannot be made in the trial WILSON V. SPEED. |