[Patterson vs. Jenks et al.]

such lands shall be considered null and void ;" and the survey in this case was made in September, 1786.

This enactment might with as much propriety be construed to apply to those surveys only which were made entirely within the Indian boundary, as to that part of a survey which lies on the Georgia side of that boundary. Neither construction would probably pursue the real intent of the legislature. Georgia was willing to grant all the lands as *far as the Indian boundary, but unwilling to pass that line. The sole object of the enactment [*236 was to restrain her citizens from passing it by making void all surveys and grants of lands beyond it. It is therefore a reasonable construction of the act, to consider it as applying to surveys and grants, so far only as they were contrary to law. There is a plain difference between a grant comprehending lands which may, with lands which may not be granted, and one made on a fraudulent misrepresentation or illegal consideration which extends to, and vitiates the whole instrument. Understanding this prayer as involving the validity of the grant, so far only as respects its extending in part into the Indian country, we think it ought to have been granted.

The fourth prayer, if not a repetition of the third, varies from it only by omitting the words "including all the waters of the same;" consequently, the opinion which has been expressed on the third, is applicable to this.

The principle that a patent conveying lands lying partly within and partly without the territory retained by the Indians, was void as to so much as lay within it and valid for the residue, was settled by this Court in the case of Darnforth vs. Wear. That decision was made on a patent depending on the statutes of North Carolina, which contain prohibitions at least as strong as those of Georgia.

The fifth prayer states, that the plaintiff moreover gave evidence conducing to identify and prove certain corner trees, station trees, and lines, of the said tract of land, granted to Bazil Jones aforesaid, before described, and including all the lands on the north and east side of the south fork of the Oconee river, in the possession of the defendants. And thereupon the counsel for the said plaintiff moved the Court to instruct the jury, that neither the want of the line and station trees required by any law, nor the omission of the surveyor to note on his plat the beginning corner, nor any mistake in platting the water courses, nor any fraud, irregularity, negligence, or ignorance of the officers of government, prior to the issuing of the grant to Bazil Jones, under which the plaintiff derives title, did, or

could, legally affect the right of the plaintiff to recover; that [*237 the existence of the grant is, in itself, a sufficient ground to infer that every prerequisite has been performed; and that as to all irregularities, omissions, acts of fraud, negligence or ignorance of the officers of government, prior to the emanation of the grant, the government of Georgia, and not the plaintiff claiming under her grant,

VOL. II.-Q

†9 Wheaton, 673.

181

[Patterson vs. Jenks et al.]

must bear the consequences resulting from them; which instruction the Court, being divided in opinion, refused to give.

This prayer is, in some of its parts, unexceptionable. In others, it is expressed in such vague and general terms, as to make it unsafe for any Court to grant it. In the case of Polk's lessee vs. Wendle,† this Court decided that a grant raises a presumption that every prerequisite has been performed; consequently, that no negligence or omission of the officers of government anterior to its emanation can affect it. The part of the prayer which respects the defects supposed to be in the plat, speaks of the want of the line and station trees required by any law, without specifying, the laws alluded to, and the omission of the surveyor to note on his plat the beginning, and of any mistake in platting the water courses.

The act for opening the land office contains no particular rules respecting plats; and the act which requires surveyors to note the beginning corner of their surveys, passed in December, 1789, long after the emanation of this patent. It would seem that the officer by whom this patent was issued, was the proper judge of all things apparent on the face of the plat, and that the patent itself presupposes that the plat was sufficient in law as to those requisites of which he could judge by inspection. This part of the instruction might have been given. But it is connected with a request that the Court would instruct the jury that no fraud on the part of the officers of government could affect the plaintiff's title. It is not easy to perceive the extent of this instruction; and it could not, we think, have been safely given.

*The sixth exception states, that the said plaintiff moreover

*238] gave evidence conducing to prove that the title of Bazil

Jones, the grantee of the said land, had been regularly and legally conveyed to the lessor of the plaintiff in this action, before the commencement thereof; and that all the lands in the possession of the defendants, and of each of them, at the time of the service of the process in this action, were within the lines described by the said grant to the said Bazil Jones, and were on the north and east side of the said south fork of the Oconee river. And thereupon the said counsel for the plaintiff moved the Court to instruct the jury that, upon the aforesaid evidence, if the jury believed the same, the plaintiff was, by law, entitled to recover the premises in dispute; which instruction the Court, being divided in opinion, refused to give. This prayer states more explicitly the facts contained in the third and fourth, and is understood to come completely within the opinion of the Court on them.

It is the opinion of this Court that the Circuit Court erred in not instructing the jury that the grant under which the plaintiff made title was valid as to the lands in possession of the defendants; and that for refusing to give this instruction the judgment of the said Circuit Court ought to be reversed and the cause remanded, that a venire facias de novo may be awarded.

† 9 Cranch, 87. 5 Wheaton, 293.

*J. HARPER, PLAINTIFF IN ERROR, US. ANTHONY BUTLER, DEFEND

name.

ANT IN ERROR.

By the law of Mississippi, the assignee of a chose in action may institute a suit in his own When therefore an executor, having proved the will of his testator, in Kentucky, had assigned a promissory note due to the estate by a citizen of Mississippi; the suit was well brought by the assignee, without any probate of the will in that state.

ERROR to the District Court of the United States for the district of Kentucky.

The only question submitted to the Court was, whether the assignee of a chose in action, assigned by an executor in the state where he had proved the will and taken out letters testamentary, where the debt was contracted, and where the testator lived and died; could maintain an action in another state, without a new probate and new letters testamentary taken out in the state in which the action was brought.

The question arose on the demurrer of the defendant to the plaintiff's replication, setting out the probate, letters testamentary, assignment, &c. The District Court sustained the demurrer and decided against the plaintiff's right of action.

The cases of demurrer shown by the defendant in error, were: 1. That the replication does not allege and set forth that the will of the testator was proved, and that letters testamentary were granted to the executor in the state of Mississippi.

2. That the replication does not show that the will of the testator was proved, and probate thereof granted to the executor or any other person within the jurisdiction of the Court; nor that it was granted by a tribunal of competent jurisdiction.

Mr. Jones, for the plaintiff, contended that the assignment being consummate in the jurisdiction where the executor's *au[*240 thority was indisputable, operated a complete transfer of the chose in action there; and carried with it a right of action everywhere; to which no new probate, or letters testamentary, could have added any validity whatsoever.

No counsel appeared for the defendant.

Mr. Chief Justice MARSHALL delivered the opinion of the Court. This is an action of debt brought by the plaintiff in error, in the Court of the United States for the district of Mississippi, as the assignee of Henry Clay, executor of James Morrison, deceased. The defendant pleaded in abatement, that the will of James Morrison had not been proved or recorded in the state of Mississippi, nor had letters testamentary therein been granted to Henry Clay, the executor. To this plea there was a replication, which set out the probate of the will in the state of Kentucky, the letters testamentary to the

[Harper vs. Butler.]

executor, and the assignment, in the state of Kentucky, of the note on which the action was brought to the plaintiff in error. To this replication the defendant demurred. The Court gave judgment for the defendant, and the plaintiff has sued out this writ of error.

The District Court proceeded on the idea that the executor could not transfer a chose in action in Kentucky, because the obligor did not reside in that state. This Court supposes the law to be otherwise. The assignment in Kentucky could not enable the assignee to sue in the Court of Mississippi, unless the law of the Court authorized the assignee to sue in his own name. But since this is permitted in the Courts of Mississippi, the plea in abatement cannot be sustained.

The judgment is reversed, and the cause remanded to the District Court with directions to overrule the demurrer.

184

*LESSEE OF WILLIAM A. POWELL, AND OTHERS VS. JOHN HARMAN.

Under the statute of limitations of Tennessee, of seventeen hundred and ninety-seven, a possession of seven years is a protection only when held under a grant, or under valid mesne conveyances, or a paper title, which are legally or equitably connected with a grant; and a void deed is not such a conveyance as that a possession under it will be protected by the statute of limitations.

THIS case came before the Court from the Circuit Court of western Tennessee, on a certificate of division from the judges of that Court.

In the Court below, the lessor of the plaintiff showed a regular title to the lands in question, under a grant from the state of North Carolina, and proved that the defendant was in possession of the land in dispute.

The defendant proved that he had been in peaceable possession of the land for more than seven years, holding adversely to the plaintiff, under a deed from the sheriff of Montgomery county, dated the 14th of April, 1808, founded upon a sale for taxes; but which sale was admitted to be void, because the requisites of the law in regard to the sale of lands for taxes had not been complied with.

Upon the trial of this cause it occurred as a question, whether under the statute of limitations of Tennessee of 1797, a possession of seven years is a protection only when held under a grant or under valid mesne conveyances, or a paper title, which are legally or equitably connected with a grant, or whether a possession under a void deed is such a conveyance as that a possession under it will be protected by the statute of limitations. The judges being opposed upon this question it was referred to this Court for their opinion.

Mr. Chief Justice MARSHALL delivered the opinion of the Court. The question now referred to this Court differs from that which was decided in Patton's lessee vs. Easton, 1 Wheat. *476, in this, that the defendant who sets up a possession of seven [*242 years in bar of the plaintiff's title, endeavours to connect himself with a grant. The sale and conveyance, however, by which this connexion is to be formed, are admitted to be void. The conveyance being made by a person having no authority to make it, is of no validity, and cannot connect the purchaser with the original grant. We are therefore of opinion that the law is for the plaintiff, and that this be certified as the opinion of this Court.

This cause came on to be heard on a certificate of division of opinion of the judges of the Circuit Court of the United States for the district of west Tennessee, and on the questions and points on which the said judges of that Court were divided in opinion, and which have been certified to this Court, and was argued by counsel.