Iredell County NcArchives Court.....Taylor, V. Roe & Shufford 1825
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 1, 2009, 10:29 pm

Source: Nc Reports Vol 11, 1825
Written: 1825

December Term 1825

Doe on demise of TAYLOR v. ROE and SHUFFORD. 

From Iredell.

Common reputation is evidence in questions of boundary; and in ascertaining 
Earl Granville's line, astronomical observation is a more certain mode (the 
latitude of the line being given) than an actual running of the line from a 
certain point designated on the sea shore as its beginning.

The sovereign power cannot, be estopped. Where the crown, in 1768, granted 
lands to A which it had previouslv granted to Earl Granville, the grant in 
1768 was void; and as the state succeeded upon the revolution to Earl 
Granville's right to the land, a grant made by the state since, shall be 
preferred to the royal grant in 1768.

Ejectment. The plaintiff's lessor claimed the land in dispute, lying in 
Lincoln county, by virtue of a grant issuing to his father in 1768 from the 
crown of Great Britain.

The defendant claimed the land under a grant from the state of North Carolina 
of recent date; and contended, that the land was within the boundaries of Earl 
Granville's grant, which being antecedent to that under which plaintiff 
claimed, the latter conveyed nothing to plaintiff.

On the trial below, before Nash, Judge, it appeared that, from the year 1753, 
acts of the legislature of North Carolina had been passed, at various times, 
up to the year 1779, which acts call for and point out Earl Granville's line 
as the boundary between different counties; that in the year 1772, the line so 
called for by those acts had been actually run and marked as Granville's line 
by commissioners appointed for that purpose, and has ever since been reputed 
the line; but it did not appear how the line so run was ascertained to be 
Granville's line; nor did it appear to have been ascertained for any other 
purpose but that of marking the limits of the several counties bounded by it. 
The land in dispute lay to the northward of the line run as Granville's 
several miles.

The defendant proved that the latitude of the town (117) of Lincolnton had 
been ascertained by observation, and that from Lincolnton to the Granville 
line extended would be about two miles going due north; and farther, that from 
the observation which had been taken, the latitude of Earl Granville's line, 
as given in his grant, would make the line pass to the northward of Lincolnton 
between two and three miles.

On the part of the plaintiff it was contended, that although the grant of Earl 
Granville called for a parallel of latitude as the southern boundary of the 
territory granted in it, yet it called also for other boundaries more certain 
in their nature and more easily ascertained, viz., Chickcomack inlet, and the 
town of Bath; and that from a point north of Bath, as specified in the grant, 
Earl Granville's line was to be run west;* and that he could not be deprived 
of his land, unless it was shown that it lay to the northward of that line so 
run, which was denied to be the same with the line run and marked as Earl 
Granville's line.

It was farther proved, that according to the maps examined by the witness (Mr. 
Mushat), the 35th degree of north latitude, measured on those maps by the 
scale upon them, was twelve miles to the south of the line laid down by them 
as the division line between the Carolinas; from the 35th degree of north 
latitude, to the land in dispute (supposing it to be due north from 
Lincolnton) would (118) be forty-there miles over hilly, broken ground; that 
the maps were not accurate, and that thirty-four minutes would measure thirty-
nine miles, and the witnesses could not say that the distance of forty-three 
miles mentioned above, would be more than thirty-nine miles air measure.

The plaintiff, and those under whom he claimed, never had actual possession of 
the land, but living in another county, the defendant had acted as his agent 
for many years in taking care of the land and paying taxes for it. Defendant 
admitted himself to be in the adverse possession.

The Court charged, that if the jury were satisfied that the land in dispute 
was within the chartered limits of Earl Granville's land, the plaintiff was 
not entitled to recover. There was a verdict for the defendant, and a new 
trial moved for on the ground that the jury should have been instructed tnat 
the mode by which the defendant ascertained the situation of Granville's line 
was not such as to entitle it to any weight in deciding the question where

---------------------------
* Bounded to the north by the line that divides Carolina from Virginia, to the 
east by the great western ocean, commonly so called, and as far southwardly as 
a cedar stake set upon the sea side in the latitude of thirty-five degrees and 
thirty-four minutes at north latitude, being six miles and a half to the 
southward of Chickmacomack inlet, from that stake, by a west line which passed 
twenty-five feet to the southward of the house wherein Thomas Willis liveth, 
and so west as far as the bounds of the charter granted to the lords 
proprietors of Carolina, by his majesty King Charles the Second, which west 
line went one thousand six hundred and sixty poles to the north of the south 
end of Bath town."
---------------------------

that line was; and farther, that the jury should have been instructed that, 
although the land was to the north of Granville's line, yet the plaintiff was 
still entitled to recover, as the defect in his title was cured by the Bill of 
Rights.

A new trial was refused, and from the judgment rendered plaintiff appealed.

Wilson, for the appellant.

1. The southern line of Lord Granville does not depend upon where the latitude 
of thirty-five degrees thirty-four minutes is. The grant from George, 2, by 
which the boundary is described, calls for a stake set upon the sea side in 
that latitude. (1 N. R., p., 35.) The stake is the object called for; the 
latitude but a guide to it. The stake is a definite point, and controls the 
call for a parallel of latitude in which it was supposed to be placed. And 
though the line thence is west, yet it is described as passing twenty-five 
feet to the southward of the house (119) wherein Thomas Wallis lived, and a 
certain number of poles north of the south end of Bath town. To ascertain the 
line, the defendant must begin at Bath, or Wallis' house, and extend it by 
actual survey west. The latitude is uncertain, and cannot be ascertained with 
precision. The commissioners on the part of this state and South Carolina, 
aided by men of science, differed about it. As to the surveys made by 
authority of the goneral assembly, they were not proper evidence. They were 
taken to ascertain the boundaries of counties, and proved nothing as to this 
controversy. It appears upon the case, that the defendant's title was acquired 
dishonestly, and the Court ought to hold him to strict proof.

2. The King granted this land to Earl Granville; then granted a part of the 
same to the plaintiff. Afterwards the state (succeeding to the rights of the 
King, the former sovereign) acquired Granville's title by escheat. The state 
is estopped by the King's grant, under which the plaintiff claims; and the 
title acquired by escheat shall enure to the benefit of the plaintiff. This, I 
admit, sounds like strange doctrine, but I think it can be supported. The 
contrary opinion owes its origin to the superstitious veneration of our 
English forefathers for their monarchs, and ought not to subsist in a republic.

A grantor executes a deed of conveyance, and afterwards receives other title 
to the estate; he and his heirs are estopped by the first deed. Mosser et al. 
v. Sebastian et al (4 Bibb., 436).

Where the legislature, by resolve, declared that a monument mentioned in the 
resolve was, and should be considered as the one intended in an Indian deed 
under which a title was derived to certain proprietors, it was held the 
commonwealth was thereby estopped. (10 Mass. Rep., 155.)

In Co. Lit., 270 b., a case is stated, where, even in England, the King shall 
be estopped by a deed. (120) A record or patent cannot be contradicted. (Co. 
Lit., 260 a.)

If the King made a grant through mistake, unless there be fraud, it shall be 
good. (6 Coke, 55, the Duke of Chandos' case.)

It is laid down by Mr. Harper, in argument, in 7 Cranch, 617, that a state is 
estopped to dispute its grant; and the principle seems admitted by the Court, 
in page 622.

Consequently, as there is no fraud alleged in obtaining the first grant under 
which we hold, the state is estopped by it to deny that it passed a good 
title; and the defendant, claiming under the state by a subsequent grant, is 
estopped likewise.

Badger, for the appellee.

1. As to the estopped. It is not necessary to examine whether the doctrine 
that the King cannot be estopped, had its origin in a superstitious 
veneration, or in a rational regard for the interests of the public; nor shall 
I inquire whether republicans should not feel as high respect for sovereignty 
when vested in the people, as is paid to it by subjects when formed in the 
person of a monarch; but shall content myself with assuming this position, 
that the state stands upon a footing not inferior to that occupied by a 
citizen; and if it can be shown that a mere citizen, under the circumstances 
of this case, would not by law be stopped, I shall infer, with confidence, 
that the state is not.

The counsel on the other side seems to have taken it for granted, that any 
conveyance by which a title professes to be passed, estops the grantor to 
claim any title subsequently derived by him. This position is entirely without 
warrant. Those conveyances which operate without transmutation of possession, 
as releases, grants of incorporeal hereditaments, and deeds which owe their 
operation to the statute of uses, have no such effect of them-(121)selves; 
they pass only what the grantor hath, and if he hath nothing they pass 
nothing. If he afterwards acquires title, it enures to himself, and not to the 
grantee. But if a warranty be added to such conveyance, then, by force of the 
warranty and not of the conveyance, the grantor is estopped, and title 
subsequently acquired shall enure to the grantee.

Thus, a grant passes only the interest which the grantor hath at the time of 
the grant. So of a release. (Cruise Dig. Deed., ch. 4, s. 43.)

Hence a grant for a greater estate than the grantor hath, is merely void. (s. 
18.)

Hence also, if a man grant a rent out of the manor of Dale, when in truth he 
hath nothing in the manor, if he afterwards purchase the manor he shall hold 
it discharged from the grant, (s. 43, and Perk, s. 65, there cited.)

So, if a son release to the disseisor of his father, living the father, he 
may, after his father's death, enter against his own release. (Cruisi Deed, 
ch. 6, s. 46.)

"Yet a release of all a man's right," says Ch. B., Gilbert, "supposeth that he 
has a right." Then the estoppel does not arise (as the counsel on the other 
side seems to think) from the execution of a deed, which supposes a right in 
the grantor and professes to transfer it to the grantee.

But in the case of the disseisor of the father, if the son release in the life 
of the father with warranty, then after the fathor's death he is barred by 
force of the warranty. (Shep. Touch., ch. 8, p. 183.)

A fine is always made with warranty express in practice, and if none be 
expressed it is implied. (Cruise, title Fine, ch. 2, s. 34, 35.)

To the validity of a feoffment, nothing is necessary but possession. It always 
passes an estate, though the feoffor have nothing in the land; the estate may 
be wrongful, and may be determined by the entry of him who hath title, but 
still it is an estate. Thus a feoffment by tenant (122) for years, passes the 
fee, by force of the livery by which actual possession is transferred and the 
land delivered. And hence it is, that a feoffment barreth and excluded the 
feoffor of all present and future rights and possibilities of right. And this 
efficacy of a feoffment is said to be peculiar to itself, arises from the 
livery which accompanies it, and does not belong to line, recovery, or other 
conveyance. (Cruise, Deed, ch. 4, 32, 33, 34. Shep. Touch., 204; Co. Lit., 9 
a.)

Besides, before the statute of quia emptores (which destroyed subinfeudations) 
a warranty was attached to every feoffment; if not expressed, it was implied 
from the word dedi; and since the statute, such warranty is implied to bind 
the feoffor during his life.

The inference is clear from those cases, that no grant, release, or deed 
operating under the statute of uses, creates any bar except by force of an 
express warranty annexed to it. This position is not opposed by anything cited 
on the other side. The case from 10 Mass. Rep. has no relation to the doctrine 
of estoppel as we are now considering it. It was merely this: doubts existing 
as to a boundary mentioned in an Indian contract, the legislature, by a 
resolve, declared and established that boundary. And it was held, that as this 
resolve was intended for the very purpose of removing the difficulty of proof 
as to where the object referred to in the contract was, and to establish a 
certain boundary, the resolve, having the force of a law, was conclusive, and 
could not be contradicted.

The case from 4 Bibb, means a deed with warranty; and if so, it consists with 
the view here presented; if it means otherwise, it will hardly be deemed of 
sufficient authority to overturn the principles established by tbe authorities 
I have referred to, to which it stands in direct opposition.

The case in Co. Lit., 370 b, is, that a warranty and assets descended upon 
King Edward I. as the cousin (123) and heir of Edmund Earl of Cornwall; and it 
was held that King E. was barred "by the said war

11-15

ranty and assets" of a possibility of reverter, which he claimed in jere 
coronoe.

The citations from Co. Lit., 260 a., and 6 Rep., 55, are unquestionably law; 
but their application to this case is not perceived.

The object of Mr. Harper, in 7 Cranch, is to show, that a state may be 
estopped as an individual; a position which is admitted as to the basis of 
this argument. It is only, however, the argument of counsel, and is entitled 
to no weight.

Upon the whole, then, it appears, that a feoffment bars by force of the 
livery; and deeds without livery create no bar of themselves, but only by 
force of the warranty annexed to them.

The grant issued by King George under which the plaintiff claims, is not a 
feoffment. It contains no warranty express, and none is implied. If, 
therefore, it concerned only a citizen, he could not be estopped; and from 
this it may be concluded, without presumption, that the state is not estopped.

2. The parallel of latitude is the boundary of Granville's tract. It would be 
absurd to suppose the extent of this large domain was intended to rest upon 
the position of a stake, or the house of Thomas Wallis. It is clear the 
latitude was the boundary designed. The beginning is a stake in that latitude. 
A stake is an imaginary point, and this Court have determined it is so to be 
considered. The call from the beginning is west, and of course is in the same 
parallel continued. Then the observations taken by Mr. Mushat were competent 
evidence to show where that boundary was. For how else is a parallel of 
latitude to be ascertained. If competent, its weight was for the jury, and not 
for the Judge to consider.

The reputation for forty years, and the surveys of the commissioners, were 
competent evidence. What (124) are the objections? The foundation of this 
general reputation, it is said, does not appear. The very reason for admitting 
reputation as evidence of boundary is, that from the nature of the fact, 
direct proof where the line was cannot be procured. The objection would 
exclude reputation as evidence altogether. For if the evidence which induced 
that general belief or reputation be produced, we do not want the reputation; 
if not produced, then the reputation is not admissible.

Two objections are urged to the competency of the surveys. 1. That the 
evidence on which the commissioners acted half a century ago does not appear. 
This is the same objection with that offered to the reputation, and is 
already, I think, obviated. 2. That the survey was not taken to ascertain the 
boundary of the tract of land now in controversy, but the boundary of 
adjoining counties. The answer is plain. The boundary of the counties is 
Granville's line; the survey ascertains where that line was supposed to be 
shortly after the deed to Granville. The boundary of this tract depends on 
Granville's line; and the survey being made for public purposes, without 
reference to any individual contest, strengthens its force as evidence, for it 
excludes the idea of partiality or prejudice.

That surveys taken on public occasions are evidence to ascertain the rights of 
individuals not named in them, will be seen by reference to Peaks's Evidence, 
ch. 2, s. 2. (Et vide Hob., 188; Gilb. L. E., 78; 1 Burr. 146, and other cases 
cited in Peake.)

But if the reputation of half a century, the surveys and the observations 
taken by Mr. Mushat, are not evidence, how's the line to be proved? The last 
proof is objected to for its uncertainty; and what substitute is offered us in 
lieu of it; We are told to begin on the sea shore at the stake, or at Wallis' 
house, and run a line west by the chain and compass, a line more than three 
hundred miles in length. Where does the preference lie upon the score of 
certainty?

Henderson, Judge.—In running a long line upon (125) a parallel of latitude, 
the only mode of correcting the variation from the true line, is to resort, 
from time to time, to observations.

Badger.—Without that, a departure, very trifling at the beginning, would 
amount to a deviation of many miles before the whole line was run.

But there is another conclusive answer to the objections now urged to the 
admissibility of the evidence. All the evidence was received in the Court 
below, without objection taken by the plaintiff's counsel. The Judge below was 
not bound to reject evidence offered by one party and not opposed by the 
other. Being offered, its weight was properly left to the jury. The Judge 
could not give them an opinion what weight it was entitled to. If he could, he 
was not bound to do it. If bound to give such opinion, he was bound only when 
desired by the counsel; and he was not desired to do so.

The counsel for the plaintiff below allows the proof to be received; never 
intimates an objection; it is summed up and left with the jury, and no 
particular instructions asked; but when the verdict is found against his 
client, he then brings forward, for the first time, his objections to the 
evidence, and complains because the Judge did not intrude himself into the 
jury box and give an opinion upon the weight of the evidence.

The objection and the complaint certainly comes too late, if they could have 
availed at any time. The duty of objecting to evidence belongs to the counsel, 
and cannot be transferred to the Judge. To decide upon the objections when 
made is his province. Where the counsel is silent, the Judge cannot err in 
receiving evidence, for such silence is a waiver of every objection.

Hall, Judge.—I can see no objection to the charge given by the Judge to the 
jury in this case. The question of fact was, whether the lands in dispute lay 
within (126) the boundaries of the lands granted by the King to Earl 
Granville; nor can I see any legal objection to the evidence offered to the 
jury relative to that fact.

I would also think the question of law arising in the case, free from doubt, 
if we take as true what the jury have found by their verdict, that is, that 
the land in dispute lies within the limits of Earl Granville's grant from the 
crown.

The plaintiff also claims title under a grant from the crown in the year 1768, 
subsequent to the date of Earl Granville's grant. As the King had conveyed 
title to the lands in dispute to Earl Granville, it follows, that at the time 
of the grant to the plaintiff's father, he had no title to the lands, and of 
course could convey none. "For if he enters without title, or seizes land by a 
void or insufficient office, he is no disseisor; but if the King by letters 
patent grants land so seized, and the patentee enters, he is a disseisor, 
because he has time to inquire into the legality, which it is supposed the 
King has no leisure for." (Gwilliam's Bac. Ab. "Prerogative" F., 3.) 
Therefore, as the plaintiff's pretensions to recover in this action rest 
solely upon the grant from the crown, he must fail; nor do I think his claim 
is in any respect bettered by the revolution in government which took place 
afterwards, when the state suceeded to the rights of the crown as well as to 
those of Earl Granville; because if, at that time, Earl Granville had not 
disposed of the lands, they still belonged to him, and consequently, title to 
them vested in the state, and that title was not in any respect affected by 
any rights derived from the crown, because whatever right it once had to the 
lands, it had conveyed those rights to Earl Granville. For these reasons I 
think the rule for a now trial must be discharged.

Henderson, Judge.—It is contended by the counsel for the defendant, that were 
it true that the sovereign power, like an individual, could be estopped; yet 
where the (127) conveyance is by grant without warranty express or implied, as 
in the present case, there can be no estoppel; and he refers the estoppel 
arising from bargains and sales, and other conveyances deriving their efficacy 
from the statute of uses, entirely to the express warranties which are 
attached thereto; and in feoffments, to the implied warranty arising thereon 
before the statute of quia emptores, from the services due from the feoffee 
and his heirs to the feoffor and his heirs; and since the statute, to the 
warranty implied during the life of the feoffee, probably from the nature of 
the conveyance, or from an adherence to the rule after the reason of it had 
ceased, a thing not very uncommon in our law; as we still retain many rules 
growing out of the doctrine of feuds, although feuds have long since ceased 
among us. I think that the counsel is wrong in attributing the estoppel to the 
warranty. The estoppel arises entirely out of the affirmations of matters of 
fact made in the deed. He has confounded estoppels and rebutters; things 
essentially different in their nature, although frequently producing the same 
results. A rebutter operates on the right of action to the estate. It operates 
as to strangers, as well as between parties and privies; which is a 
consequence flowing from its operation on the right to the estate. An estoppel 
operates entirely as to facts; its effect is to conclude the parties from 
making, and of course proving, the facts to be otherwise than they are stated 
or acknowledged to be in deed or other transaction out of which the estoppel 
arises. My collateral ancestor deprives me of my estate, and makes a feoffment 
in fee to a stranger with warranty and dies; the warranty descends on me as 
his heir (and this is done under such circumstances as that it does not amount 
to what is called a warranty commencing by disseisin). In any controversy 
which I may have with any one in regard to the lands, after the warranty has 
descended on me, this feoffment and warranty will bar my right of action to 
the estate.

If I had lost my right of entry when the warranty (128) descended on me, it is 
as effectual to bar or destroy my estate (and that with regard to the whole 
world) as if 1 myself had made a feoffment of it. But if I to day should make 
a feoffment or bargain and sale of lands, which do not belong to me, to A, and 
to-morrow purchase the estate of B, to whom it belonged, although nothing in 
reality passed from me to A, I having nothing in the estate, could not 
transfer anything to him, for a person cannot grant that which he has not; yet 
in a controversy with B, I shall not be permitted, that is, I shall be 
estopped to aver and of course to prove that I had nothing when I granted to 
him, and set up in myself the title which I had afterwards acquired of B; for 
having affirmed in my conveyance to him that I had the estate, I shall not 
afterwards affirm that another had it. But this estoppel is confined entirely 
to parties and primes, it affects not a stranger; and as it affects not a 
stranger, neither will it affect me in a controversy with him; for the 
agreement between A and myself as to certain facts, does not make the facts in 
reality so. The agreement as to how they are, is only binding upon us and our 
privies; in our controversies with others, we are at liberty to show how they 
really are. In a controversy, therefore, between myself and a stranger, if the 
stranger, for the purpose of showing that A has title, and if A had I could 
not have it, shows my deed to him, it is competent for me to show that when I 
granted to A, I had nothing in the land, and I will prevail against him on my 
title derived from B.

Farther, to show that estoppels operate as to the facts only, if A reciting 
that he had not an estate in the lands intended to be granted, but that 
another has, bargains and sells them to B; if A in reality had nothing in the 
lands, nothing passes, not even by estoppel, for there is affirmation against 
affirmation, and of course no estoppel can arise. To use the language of Lord 
Coke, there is estoppel against estoppel, and the matter is left at large. So 
if one (129) has an interest, although not as large as the estate granted, as 
if lessee for life or years, bargains and sells in fee, the affirmation of 
title shall be confined to the estate for life or years, and no estopppel 
arises; as if A is tenant for the life of B, and A bargains and sells the 
lands to C and his heirs, and A afterwards purchases the reversion from the 
owner and then B dies, A may recover the lands from C, notwithstanding his 
deed to C and his heirs; that is, the affirmation of title is confined to 
this, that A had an estate during the life of B. Cases might be multiplied to 
show the difference between a rebutter arising from a warranty, and an 
estoppel. We may add also, which would seem of itself conclusive, that 
estoppels arise in cases where there can be no warranty; acts in pais, acts in 
the country. Nor is the reason more sound, that estoppels arise only from such 
conveyances as operate by way of transmutation of possession, as a feoffment, 
and not on those which operate under the statute of uses; for as to their 
affirmation, and of course their estoppels, they are precisely alike. A 
feoffment, accompanied by livery of seisin, passes the estate, there is an 
actual tradition; the estate passes as to all the world, and any person may 
show it, because the fact is so. But in a bargain and sale, there is no actual 
tradition; the statute only transfers the seisin which the bargainor has; if 
he has none, none in realty is passed, and strangers cannot be affected by a 
thing which never happened; but as between the parties the seisin shall be 
considered as passing, because the bargainor is estopped from showing that he 
was not seised, and if he was seised the statute transferred it. As between 
the parties, the bargain and sale shall pass what it purports to pass; as to 
strangers, what it actually does pass. Thus a feoffment in fee by a tenant for 
life is a forfeiture, because, as to all the world, it passes the fee; it 
displaces the estate of the reversioner, it is therefore an injury to him 
which is punished by a forfeiture of the life estate. But if tenant for life 
bargains and sells the lands in fee, it (130) is no forfeiture; for as to all 
but the parties to the bargain and sale (in which term I include privies), it 
passes only the life estate, for that was the extent of the bargainor's 
seisin; and passing only the life estate, it did not displace the reversion; 
it was, therefore, no injury to the reversioner, and, therefore, no cause of 
forfeiture. Nor do the authorities cited from Cruise and Sheppard support the 
position contended for. They were cases of releases, operating by way of 
mitter le droit, or extinguishment. In them no estate passed by the release, 
but only a right, say a right of action. Rights are not the subject of 
transfers or conveyance, but estates are. A right to an estate is not demanded 
in an action, but the estate itself. Rights may be released or extinguished, 
but not granted. If A is out of possession, and assigns or transfers to B who 
has no estate in the lands, B can sustain no action for the lands, as well for 
the reason that the subject matter was not the object of a grant, as from the 
rule said to be founded on policy, that no man can sell his right of going to 
law. If A releases to B all his right in certain lands, B having no estate in 
the lands, nothing passes, not even by estoppel, for that cannot pass by 
estoppel which in reality cannot pass by a conveyance. In the cases cited, the 
releasor, by his release, affirmed that he had a right to the lands, and no 
estate therein; for a release presupposes the right to be in the releasor, and 
the estate in the releasee (I mean as to releases operating by way of mitter 
le droit or relinquishment), and the release can support no action on such 
acquisition; it only confirms and strengthens the estate which he had before. 
If A, therefore, releases his right to B in a certain estate which B has in 
possession, and A afterwards acquires a good estate in the lands, he may set 
it up, for it is a different thing from that which he affirmed he had in his 
release; and estoppels being odious, the party shall not be concluded from 
showing the truth, unless the affirmation be directly upon the point, not to 
be arrived at by argument and conclusion.

(131) And this distinction between an estate and a right is almost daily acted 
on. In our actions on covenants for title and quiet, enjoyment, if the right 
and estate were the same thing, no breach could ever with propriety be 
assigned for breaches of covenants for quiet enjoyment contained in an 
indenture of bargain and sale; for in such cases the bargainee is as much 
estopped as the bargainor; but it is as to the estate in which they are 
estopped. The breach is not that no estate passed, but that an estate did 
pass, but that the title to that estate was not good, and that he was 
disturbed in the enjoyment of that estate by one having title. In fact, the 
very idea of annexing a warranty or covenant presupposes an estate to pass; 
for without the estate passes there can be no warranty, which is a dependant 
covenant, as is a covenant for quiet enjoyment, although by the phraseology 
there may be an independent covenant, but it is not attached in law to the 
estate. This very clearly proves what is affirmed, and what estoppels arise 
out of a bargain and sale.

With respect to the case cited by the counsel for the plaintiff from Co. Lit, 
when Edward the 4th was barred, that was clearly the case of a rebutter 
arising from a warranty made by his collateral ancester the Duke of Cornwall, 
which descended on Edward the 4th. As to the case from Massachusetts, the 
operation of the resolve of the legislature was not so much to declare where 
certain falls in the river were, as to locate a prior grant; it operated to 
locate the lands, where the legislature said the falls were; it operated as a 
new grant, which the legislature certainly had the power then to make; it 
continued the old grant, and fixed it at certain falls; and if such was not 
its operation, the decision was wrong, for a sovereign cannot be estopped. But 
the sovereign power conveys neither by feoffment, bargain and sale, or any 
conveyance dependent on livery of seisin or transferring uses into possession. 
By grant, the sovereign will alone passes the property, (132) evidenced by 
matter of record; and all grants from the sovereign are matter of record, and 
when under the great seal of the state prove themselves. And I know of no case 
where the sovereign power has been estopped; the cases are all the other way, 
and policy and justice require that they should be so. This sovereign, or 
sovereign 

11—16

power, is a trustee for the people; it acts by agents; the people should not 
be bound by any statement of facts made by those agents. For their benefit, 
the truth may always be shown, notwithstanding any former statement to the 
contrary. Where the state, therefore, succeeded to the rights of the King, and 
to those of Lord Granville, it was competent for the state to show, that the 
King's grant to the plaintiff in the year 1768 passed nothing, the King having 
granted the same lands to Lord Granville in the year 1744; for the King, or 
sovereign power, cannot, any more than an individual, grant that which he has 
not. The lands in qnestion were the property of the state, I think, certainly 
succeeded to Lord Granville's lands, by the most complete confiscation, by 
taking the very property to itself, as it did by the entry laws, and passed 
them to the defendant by its grant in 180—.

As to the evidence which was received to establish the line of Lord Granville, 
I can see no objection to it. Common reputation is certainly admissible in 
questions of boundary; and it was applied to this case much more consistently 
with the spirit of the rule, and the reasons on which it was founded, than 
when we permit a witness to swear that a person since dead told him that a 
certain tree in a remote wood was a line or a corner tree of some other 
person's land; and as to the observations made by Mr. Mushat, fixing the 
latitude, although such observations may not lead to absolute certainty, yet 
it is the best method which we have to ascertain the fact, and certainly 
better than by going down to the sea shore and running out west; for the 
latitude can as well be taken here, or (133) in Lincoln, as there. It would be 
impossible to continue the same course such a distance by the compass alone. 
Astronomical observations must, therefore, be frequently made to keep the 
course correct; for I do not agree with the plaintiff's counsel, but adopt the 
argument of the counsel for the defendant, that, the cedar stake or the houses 
by which the line is said in the charter to run, are nothing else than marks 
pointing to the line, which, notwithstanding those indicia given in the 
charter, is on the parallel of latitude 35, 34 north. The rule for a new trial 
should be discharged.

By the Court, Judgment affirmed.

Approved, as to first point. Hartoog v. Hubbard, 19 N. C., 241: Huffman v. 
Walker, 83 N. C., 411. Approved as to second point. Candler v. Lunsford, 20 N. 
C., 407; Wallace v. Maxwell, 32 N. C., 110; Tolston v. Mainor, 85 N. C., 235; 
St. v. Williams, 94 N. C., 891; Southernland v. Stout, 68 N. C., 496; Bell v. 
Adams, 81 N. C., 118.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

December Term, 1825

File at: http://files.usgwarchives.net/nc/iredell/court/taylor1440gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 35.9 Kb