Bertie County NcArchives Photo Place.....Reddick And Wife V. Leggat 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 4, 2009, 7:13 pm

Source:             NC Reports
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Den on demise of Reddick and Wife v. Leggat

From Bertie

November Term 1819

In determining the priority of grants, issued on the same day, the number 
marked on each will be regarded and looked to, when there is no other 
circumstance. The number is no part of the grant; and therefore where two 
grants issued on the same day, and the one of the lowest number called for the 
lands covered by the other, this last shall be deemed the prior grant.

Boundary is a question of fact, or at least, of law and fact combined, and to 
be decided by the Jury and not by the Court.

It is the province of the particular description to abridge and limit, but not 
to enlarge the general description.

Where the thing referred to has no particular name, and there are super-added 
to the general description, specifications or localities, all these 
specifications or localities must concur to point out the object, otherwise it 
does not appear to be the thing intended.

If one grant to S. S. one thousand acres of land and no more, according to 
certain lines which include two thousand acres, the two thousand acres pass, 
because the buts and bounds are more certain than the quantity. Quantity is in 
no way material, except, where the boundaries are doubtful, and there it is a 
mere circumstance.

Colour of title, and possession under it — possession of lands for seven years 
under colour of tide bars the right of entry, although the possessor knew at 
the time he obtained his colour of title and took possession, that the lands 
belonged to another person. Any other construction of the act of limitations 
would render titles insecure, and frustrate the intention of the act.

The lessors of the Plaintiff were the heirs at law of John Swain, to whom the 
lands in question had been granted on 18 May, 1789. The warrant of survey was 
issued in 1778, and the survey was made in 1784, the Defendant Leggat being 
one of the chain carriers. The Defendant claimed title to the lands under a 
grant issued to him on the same day on which the grant to Swain issued, and 
his grant was of a lower number than Swain's. In the following Diagram, the 
letters A, B, C, D, E, represent the lines of Swain's grant, A. being the 
beginning corner. The figures 1, 2, 3, 4, represent the lines of Leggat's 
grant, figure 1, being the beginning corner.

The grant to Swain calls for "three hundred acres of land lying in Bertie 
county, on the low grounds of Roanoke river, beginning at a Holly on the 
river, Dugan's corner, running thence with his line north 80 poles to his 
other corner, thence north 25 degrees east 260 poles to a cypress, thence 
north 80 degrees east 100 poles to a Gum, thence south 20 degrees west 450 
poles to the river at a Sycamore, thence up the river to the first station." 
The Sycamore called for in the last line is at figure 1, and the line being 
run from the corner at D. to figure 1, will leave out of the grant a small 
slip of land in the bend of the river.

The grant to Leggat calls for "one hundred acres of land lying in Bertie 
county, in the low grounds of Roanoke river, between John Swain's and Roanoke 
river; beginning at a Sycamore tree, John Swain's corner on the river, thence 
north 25 degrees west 254 poles to a Gum, thence north 33 degrees east 64 
poles to a Gum, thence south 25 degrees east 254 poles to a Chestnut Oak on 
the river, thence up the river to the first station." The Chestnut Oak is at 
figure 4.

The Defendant had been in possession of the part of the land covered by both 
grants for eighteen years.

The Defendant contended that the lines of Swain's grant ought to be run 
agreeably to the directions of the act of 1777, so as to give him a water 
front of but one fourth of the extent back: that if so run, the lines of the 
two grants would not interfere. He further contended, that as his grant issued 
on the same day with Swain's and was first numbered, it was the elder grant 
and first to be located. And lastly, that his grant was a colour of title, and 
that he having had seven years adverse possession of the land, the right of 
entry in the lessors of the Plaintiff was barred.

The Court instructed the Jury that, as the Defendant had failed to prove any 
lines actually run at the time of the original survey, different from those 
called for in the grant to Swain, those claiming under that grant were 
entitled to run according to the courses and distances called for in it, and 
that would leave the land in dispute within the bounds of Swain's grant. That 
the number of the grant, marked on it by the Secretary of State, was not a 
part of the grant; that in the nature of things an elder grant could not call 
for a younger, and here the grant to Leggat recognised Swain's grant.

The Court further instructed the Jury, that, if they believed that Leggat, at 
the time he obtained his grant, knew that it covered lands already covered by 
the grant to Swain, his grant was not such colour of title as, with seven 
years possession under it, would toll the right of entry of the lessors of the 
Plaintiff: that no paper writing which was founded in fraud, could operate as 
colour of title in favor of him who was party to the fraud. That if a man 
obtain a grant for a piece of laud which he knew had been granted to another, 
it was a fraud both upon the State and the individual whose land was so 
regranted. And the court left it to the Jury to say, whether the circumstance 
that Leggat was a chain carrier when Swain's land was surveyed, satisfied them 
that he knew when he obtained his grant, that it covered lands surveyed for 
Swain: that he got a grant for land lying between Swain's and Roanoke river, 
and if he was a chain carrier for Swain, must he not have known that there 
were only a very few acres lying there? And must he not also have known that 
running from the sycamore the course he called for, would take him directly 
into Swain's lands?

The Jury found the Defendant guilty; upon which a rule for a new trial was 
obtained, and it being discharged the Defendant appealed to this Court.

Henderson, Judge: The first question presented for the consideration of the 
Court, is the priority of the respective grants of the parties. Leggat's has 
the lowest number, but it calls for Swain's lands: the number must therefore 
yield to this call, and Swain's must be considered as first made. The number 
was then no part of the grant; it was only a mark put upon it by the Secretary 
for convenience, not when he countersigned, but when he revised it.

The next question, to-wit, the boundaries of Leggat's grant, is rather one of 
fact than of law, and dependent on a variety of circumstances, proper only for 
the consideration of a Jury. We will, however, examine those facts as sent 
here, more for the purpose of shewing that it is a question of fact, than of 
elucidating the points arising on the record for our decision.

Swain's patent, under which the lessors of the Plaintiff claim, when laid down 
according to its calls, leaves but a narrow strip of land, not more perhaps 
than ten steps wide, between it and the river, and perhaps not more than fifty 
long: and the lands granted to Loggat are described in his grant as lying 
between Swain's and the river, "beginning at a sycamore, John Swain's corner 
on the river, thence north 25 degrees west 254 poles to a gum, thence north 33 
degrees east 64 poles to a gum, thence south 25 degrees east 254 poles to a 
chestnut oak on the river, thence an the river to the first station;" which 
when laid down according to its calls, runs across Swain's lands diagonally, 
and terminates many poles beyond Swain's back line, including lands lying 
between Swain's lands and the river, not more than one third or one fourth of 
an acre. It is contended, on the part of the Plaintiff, that as Loggats' lands 
are described as lying between Swain's and the river, every other description 
of its locality must be controlled by and give way to that, to-wit, distance, 
courses, marked lines, corners, and quantity; and in support of this, it is 
said, that it is the province of the particular description to abridge and 
limit, but not to enlarge the general description; and Lord Bacon's 13th 
maxim, 2 Coke Rep, 33 Doddington's case, Cm. Jac. 22, and 8 East. 91, are 
relied on to support it. From these authorities, which are nothing but rules 
or maxims founded in common sense, it appears, that where the thing referred 
to, has no particular name, and there are superadded to the general 
description, specifications or localities, all these specifications or 
localities must concur to point out the object, otherwise it does not appear 
to be the thing intended. As if I grant all my lands in Dale, which I 
purchased of L. S. and which are in the tenure of I. N.; all these 
specifications must concur, otherwise there is nothing described. But if I 
grant White Acre, which I purchased of I. S. and which descended to me from my 
father, White Acre will pass, although I purchased of I. N. and not from I. 
S.; and although it descended to me from my mother and not from my father: it 
is sufficiently identified by its name, and the other descriptions are nor 
sufficient to render it uncertain. They are therefore rejected or disregarded. 
This may be further illustrated thus; I grant to J. S. one thousand acres of 
land and no more, bounded as follows, &c. and two thousand acres are included 
in the lines. The two thousand acre pass, as the buts and bounds are more 
certain than quantity, which depends on admeasurement and calculation; and the 
quantity is in no way material, except in lands where the boundaries are 
doubtful, and there it may be thrown into the one scale or the other as a 
circumstance.

On the other hand, it was contended that whatever may be the effect of 
Leggat's grant to pass the title, of the lands, it actually runs across 
Swain's patent in the manner before described. To prove this, reliance is 
placed on the course and distance, the immense disparity between the quantity 
called for and that lying between Swain's and the river: that by stopping at 
Swain's front on the river line, and running Leggat's next course and 
distance, his lands are thrown one half or more into the river, and the 
residue on the opposite side. Now a greater part of the above are questions of 
fact, and which the Court cannot decide on. It was the province of the Jury to 
do so; and if some be rules of law and some of fact, the decision belongs to 
the Jury under the superintendence of the Court as regards the law, and the 
competency and relevancy of the evidence. In fact, boundary is a question of 
fact, at least of law and fact combined, and for the decision of the Jury and 
not of the Court.

But if the Jury were of opinion that Leggat's grant covered the lands in 
dispute, the next question is, does the possession of eighteen years under it, 
give a right, Leggat knowing at the time he entered that Swain's patent 
covered the land? I assume it as a fact, that Leggat had notice of the bounds 
of Swain's patent, because from his being a chain carrier, although it be a 
slight circumstance, the Jury might infer that he had such notice, and the 
Court very properly left that circumstance to them.

Leggat is very clearly within the words of the statute of limitations, even 
with the addition that there must be colour of title, if the Jury believed his 
grant covers the land. He has had a possession for more than seven years, 
under a grant purporting to convey the lands to him, and which would have been 
operative but, that the grantor had before parted with his interest. Whether 
he knew or not of any other title, the Legislature which passed the act of 
1715, did not seem to consider material. The words are general, not in favour 
of those possessors who did not know of any other title. I would say that the 
law, as so construed, is politic and wise. On the one hand, it may be said, 
that no mala fides possessor should acquire a right, no matter how long his 
possession may have continued. Yet as parol evidence must be gone into for the 
purpose of proving the mala fides, and it being a thing dependent on a 
knowledge in the possessor, a thing which may be drawn upon him by perjury 
without a possibility of contradiction. The object of passing the act would be 
frustrated, it would tend to render title insecure. To discourage new 
settlements and improvements, particularly of a lasting kind, in which all 
countries are much interested, and more especially a new one, as ours was then 
and even now, would in a great degree repeal the act; and if it did not, it 
would damp the spirit of enterprise and improvement, which it was the 
intention of the Legislature to cherish and protect. But for us, as mere 
expounders of the law, it is sufficient to say, that there is no such 
exception in the words of the act; nor is there in the act anything which 
authorises us to say that the Legislature meant otherwise than as they have 
plainly expressed themselves on the subject now under consideration. 

Believing, therefore that the Jury were misdirected on this point, the rule 
for a new trial must be made absolute.


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