
    Sheppard vs. Johnson.
    1. Whether a statute is the law of the land within the meaning of the 8th section of the bill of rights, always depends upon two propositions: 1st. That the legislature had the power to pass it. 2d. That it is a general and public law, equally binding upon every member of the community.
    2. If the legislature had the power to deprive a freeman of his freehold by an. act of legislation, yet the court would not adjudge that that body intended to exercise so high a prerogative, unless the law so declared in express and direct terms; such a result could not be arrived at by equitable construction of a statute.
    3. A grantee who neglected to have his land processioned in accordance with the act of 1819, is not bound by an erroneous procession made by the surveyor, and estopped thereby from claiming to his true line.
    George D. Johnson instituted this action of ejectment in the circuit court of Haywood county, on the 8th day of June, 1838, against Egbert Sheppard, for the recovery of the possession of land, lying in said county, and in the possession of Sheppard. Johnson derived his title from a grant by the State of North Carolina, to John Rice, and Sheppard from a grant, by the same State, to Jos. Green. Both of these tracts were surveyed previous to the year 1789, by Isaac Roberts, and according to the surveys of said Roberts, as now ascertained, the grants lie adjoining each other, and do not conflict.
    In the year 1819, the legislature, with a view of preventing litigation, passed an act, directing the surveyors general of the several districts, lying south and west of the Congressional reservation line, to give notice in the newspapers to the owners of North Carolina grants, to come forward and have them processioned, and in th3 event that they did not do so, that the surveyors general should proceed to procession them, &c.
    In the year 1819, Adam R. Alexander was appointed surveyor general of the district in which the land in controversy lies. Alexander testifies, that according to the terms of the act of 1819, he did, on the I7th day of June, 182Ü, make publication m one newspaper published in Nashville and one in Knoxville, for all persons claiming lands in said tenth district, by virtue of grants from the State of North Carolina, to come forward by the time specified in said act and procession their grants, and that said office would be open on the first Monday in December, 1820, for receiving entries. That he had made diligent enquiries for the field-notes of Isaac Roberts, the surveyor who had surveyed the Hatchie connection, of which the land in controversy was a part, but was unable to procure them. That Murray, his lawfully authorised deputy,' under his directions, processioned the Rice and Green-grants, and that in accordance with the processional survey so made, he laid down the said grants on the general plan of the appropriated lands of his district. Alexander further testified that Murray informed him that he was wholly unable to trace out and identify the corners and lines called for in the Roberts survey.
    It appeared from other testimony, that the survey of Roberts and the survey of Murray varied from each other. That according to the survey of Roberts, the defendant, Sheppard, was living within the limits of the Green grant, but according to the survey of Murray, he was on the Rice grant, and that the survey of Murray threw about 750 acres of land belonging to the Green grant within the boundaries of the Rice grant.
    Martin, judge, upon the above facts, charged the jury, that by the act of 1819, grantees of land in the Westenr District, had the privilege of identifying their own lands, by having them processioned or surveyed; that in the event they failed to have them processioned as the act directed, and within the time therein prescribed, it became the duty of the surveyor general of each district, to give notice as is by said act directed, and upon such information as he could procure, to survey all the grants which might be within his knowledge, lying in his district, and spread the same upon the general plan of his district; that where the grantee failed to have his grant processioned within the time prescribed, and the survey- or afterwards surveyed the same, and spread the same upon the general plan of his district, such re-survey and re-marking would be binding and conclusive, and the grantee would be estopped from denying or disputing such lines, although they might vary from the original lines and corners, and cover other and different lands from those covered by the original location, unless such surveyor acted corruptly and fraudulently, with the intent to injure the grantee ; that the law presumed that the surveyor had acted honestly and done his duty in all things.
    He further charged the jury, that the new lines as marked by the surveyor, were in contemplation of law the lines of the original survey, and that the conclusion of the law could not be contradicted by showing that the lines and corners of the original survey were different from the lines and corners of the re-survey.
    The jury returned a verdict in favor of the plaintiff, for all the land in possession of the defendant, which was covered by the processional survey. The defendant appealed in error.
    
      Loving, for the plaintiff in error.
    The defendant insists that there'is error in the charge of the circuit judge, and alleges that whilst it is admitted,. that in the case of McNairy vs. Hightower, 2d Ten. Rep. 302, McKean vs. Tait, 1st Ten. Rep. 199, processioning or ra-marking was held binding; and in the case of Garner Sf Dickerson vs. Norris's lessee, 1 Yer. Rep. 62, Houston's lessee vs. Pillow Thomas, lb. 481, Davis's lessee vs. Smith <§- Tapley, lb. 496, Clark vs. McElhanie, not reported, McLemore vs. Brown, MSS., Riggs Prichard vs. Parker, Meigs’' Rep. 43, the doctrine of estoppel as a positive rule of law, was applied to re-marking, &c., by which the State and grantee were estopped; yet it will be seen in all these cases, that the grantees, or those claiming under them, were parties, present at the re-marking or processioning, and assenting thereto, by which act they were estop-ped. See Com. Dig. Estoppel A. An estoppel is, when a man is concluded, by his own act or acceptance, to say the truth, &c.
    But in the case before the court, neither of the grantees or claimants was a party to the survey of 1819, and, therefore, did nothing to be estopped by. See Whiteside vs. Singleton, Meigs’ Rep. 207, where Overton refused to let Gilchrist proceed with the procession under the act of 1806, and the survey was held to bind no one.
    2nd. In all the cases of re-marking or proc essioning, the doctrine of estoppel is not unqualifiedly applied, but conditionally so. The re-marking must be in reasonable conformity to the grant.— See Garner Dickerson vs. Norris's lessee, 1 Yer. Rep. 62, Houston's lessee vs. Pillow Thomas, lb. 481, Davis's lessee vs. Smith Sf Tapley, lb. 496, Riggs fy Prichard vs. Parker, Meigs’ Rep. 43.
    3rd. The question, whether the re-survey or re-marking is in reasonable conformity with the calls of the grant, is a question of law, that should be passed upon by the court, and its judgment thereon given in charge to the jury. See 1 Yer. Rep. 488, the case of Houston's lessee vs. Pillow Sf Thomas, and the case of Riggs <§• Prichard vs. Parker, Meigs’ Rep. 43.
    4th. Whilst we admit that the legislature might well pass such an act as the one of 1819, ch. 1, without doing violence to the constitution, and injury to the vested rights of any, yet we insist, that the consequences flowing from that act, by the error committed in the survey made by Murray, has involved the vested rights of individuals, if they are to be forced to take the land in the new survey, without their consent, in place of the land called for and lying within the calls and boundaries of their old grants and lines, to an extent not sanctioned by the constitution; and that said survey must stand for naught, and be for nothing held, being void for want of constitutional power in the legislature. See Jackson vs. Davis, 5 Cowen’s Rep. 123, and Jackson vs. Frost, 5 Cow-en, 346, 2 Dallas, 304; and the case of Blake vs. Dougherty, 5th Wheaton, which shows that the grantee is entitled to the land specified in his grant, if the grant is not void for uncertainty; and if the beginning corner can be found and identified, the grantee? shall have his land there, and cannot be compelled to take other land.
    
      J. H. Talbot, for defendant in error.
    It is contended that the act of 1819, ch. 1, sec. 7, 8, 2 Scott’s Rev. 449-50, directing the surveyors general to procession the North Carolina grants after giving public notice in the papers, requiring the owners of said grants, on or before the 1st day of October, 1820, to cause the same to be processioned, does not bind the said grants to the processioning lines thus made by the surveyor general, in default of the owners coming forward, and themselves causing the surveyor to procession them, This is certainly an erroneous view of the subject, when we look at all the acts upon the subject of processioning lands. The first act on the subject is the act of 1723, ch. 1, entitled, “An act for settling the titles and bounds of land.” See 1 Scott’s Rev. p. 34. The first section of which, requires all persons to procession their lands once in every three years, and the 5th section provides, that the same shall be done by the surveyor general, attended by four reputable freeholders,, in default of the owner causing the same to be done, which bounds so established by the surveyor, “shall be deemed a sufficient processioning as if the same had been been done by the consent of the party.”
    The 6th section provides, that where the land of any person has been twice processioned, such person shall be deemed and adjudged the sole owner of said lands, and that upon any suit commenced for such lands, the party in possession may plead the general issue and give this act in evidence.
    The act of 1729, ch. 6, 1 Scott, p. 42, was next passed, entitled, “An act for the more effectual and speedy putting in execution the act for settling the title and hounds of people’s lands,” the first section of which, makes some immaterial alterations as to the mode of appointing freeholders to procession the lands, and imposes higher penalties for neglect of duty in such freeholders. The 3d section provides, that where the bounds cannot be fully ascertained by such freeholders, they shall make return thereof accordingly; that in such case, the surveyor may be ordered to run the bounds at the charge of both parties, in the same manner as is before (in the act of 1723) provided to be done, where one party refuses to have his lands processioned.
    I refer to these acts to show what was the design of this processioning, and the meaning of the term procession. It certainly means the establishment and fixing of boundary, by which, in the very nature of things, all parties are bound.
    Then comes the act of 1806, ch. I, sec. 21,1 Scott, p. 899, which enacts, that it shall and may be lawful for any person or persons, who may be desirous of establishing the bounds of any lands he may claim by virtue of any title derived from North Carolina, or which may thereafter be derived from that State, which said title is good and valid in law, to cause the same to be processioned, &c. Now it cannot be denied, that if the terms of this act were complied with by making the publication as required, that, not alone the person seeking to establish his boundary would be precluded from setting up any other boundary, but all persons adjoining would be bound, if they had actual or constructive notice of the proceeding. Under this act mere private surveys were made, which our courts have decided, bound the party making such private survey, but they have never ruled, that where notice was given, and the proceeding was in conformity to law, that. those who owned lands adjoining would not also be bound by such processioning. Such laws are based upon public policy, the quiet of titles and possessions, requiring every man, who holds real property to look after it, that all may know what and where every one claims. Upon the same policy is based all our acts of limitations and registration laws, and numerous other laws that might be cited.
    When the legislature of 1819 came to legislate upon the subject, after the treaty of 1818, when the lands south and west of the Congressional reservation line were to be opened for entry, having experienced great inconvenience from defective legislation upon this subject, they took hold of the subject like men who understood what they were about; they knew, that about one-third in value, if not in area, of all this country was covered by old grants from North Carolina. There was what is called the “Big creek connection,” covering the northern half of Shelby, and the Southern half of Tipton counties ; next “the Big Hatchie connection,” covering the northern half of what is now Tipton, and extending up through the middle of Haywood; next “the Forked Deer connection,” covering a part of Lauderdale, Haywood, Dyer and Gibson; next “the Obion connection,” covering a large part of Gibson, Obion and Weakly counties; next “the Big Sandy connection,” covering almost the whole of Carroll county, and numerous other smaller connections upon the Tennessee and other waters.
    These old grants, if ever actually surveyed, from the long lapse of time, and the death of those who were present at their survey, in all probability, could not be identified. A large number of citizens had claims for land, and had a right to demand of the legislature, by suitable enactment, to require of those who had old claims, to show where they were, and so to designate them, that justice should be done to all. With such feelings, the legislature of 1819, took up the subject, and after laying off the country in five surveyors’ districts, and providing for the appointment of a surveyor general for each, they direct the whole country to be divided into sections of 5 miles square. And by the 7th' section of the act> each of the surveyors general are required to cause to be published at least three weeks in one or more papers at Nashville and Knoxville, the boundaries of his district, notifying all persons who may be desirous of making entries within the same, the day on which his office will be open, &c'., and requiring all persons claiming lands within the said district by virtue of grants from N. Carolina, to cause the same to be processioned before the first day of October, 1820, &c. Can it be doubted what the legislature meant by the term procession? it was a term well understood, and had a technical meaning. If the grantees had applied to the surveyor general, and required of him to procession their lands, and he had run the lines precisely as they were run by the surveyor in 1820, none would doubt, but the grantees would be bound by such lines. But the legislature saw, that if they stopped here, as was proved by former enactments on this subject, they would not avoid the difficulty anticipated; that many of the grantees would fail to attend to the requisitions of the law, and this country would be plunged in all the difficulties that had been visited upon other parts of the State, respecting the titles to lands; hence, they enact in the 7th section, that if any person or persons, claiming as aforesaid, shall fail to identify his, her or their grants agreeably to, and within the time prescribed by the foregoing section, it shall and may be lawful for the surveyors, and they are required to cause to be run and plainly marked in the manner prescribed by original surveys, all such grants agreeably to their calls respectively, provided the calls are special or depend upon other grants, the locality of which may be clearly identified, &c. And they further provide, that “when thus laid down it shall not be lawful for; any subsequent enterer to cross said lines by a survey, upon any entry made under this act.” It is argued that this prohibition shows that the object of the law was only to protect the old grants from the invasion of subsequent entries, and not to fix their rights, or to establish their boundaries; this construction would do great violence to the good sense of the enlightened body of 1819. They were aware, that in all probability not a single marked tree might be found; They were aware, that in many cases no surveys were actually made, and in no case were there more than two corners made to a survey, and in no case had a line been marked from one corner to another; and that, probably, .they would have to be surveyed according to some special call, and if some corners should be found, many others might not, and, therefore, they provide that they shall “be run and plainly marked but lest some subsequent enterer might say, that as no trees, corresponding with those called for by the grant, were found, (should they fail to find them,) or that no actual survey was made at the time of the grant, and that, therefore, the survey was not made in conformity to law, the surveyor general is prohibited from receiving any entry or making any survey to cross the procession lines.
    
    The legislature had, by the 7th section, and the first part of the 8th section, enacted, that the old grants should be processioned, either by the owners or the surveyor general, or sworn officer, or in other words, that their boundaries should be established, and this prohibition was only made to make it effectual. Such a construction as contended for by the plaintiff in error, would permit the old grantees to claim by the processioning lines or not, — to blow hot, or blow cold, (a thing abhorred by the law,) to claim to the old boundary on the one side, and to the new on the other, and thus produce interminable confusion. When some of the old corners were found at the extreme east end of the Big Hatchie connection, by James Brown, and he attempted to establish the doctrine, that the old grants must go to the old corners, he was resisted, and it was promulgated, whether right or wrong, that the question was settled, and here a large majority of the old grantees, all, I believe, except one, the landlord of the plaintiff in error, tacitly acquiesced in the decision. But should the doctrine be established, that it is optional with any one of them to claim to the old or the new cqr-ners, a batch of law suits would be engendered, to such an extent, that no man can predict the evil consequences. It should be recollected, this is not the only connection of old grants, where the old entries were not found, and others may be found hereafter. If these old grants are permitted to be moved from the position they now occupy, they of course will cover land now held by younger entries, the whole length of the connection on the north. Did the legislature of 1819, intend to permit this? To give such a con.struction to the act, must be in direct violation of their meaning. The object of all the procession laws as shown from the act of 1723, down to the act of 1819 inclusive, shows that the object of such laws was to fix the boundaries of such lands so processioned. The terms re-marking and processioning may be regarded in our laws as synonymous terms.
    
      It has been contended that the re-survey has not been ma le in reasonable conformity to the grants, and, therefore, the grantees are not bound. This is a mistake; the question of “reasonable conformity,” is a question of fact, “according to all the circum tances of the case.” What were the circumstances in the case? These old surveys had been made upwards of 40 years; all those persons who were present when this old base line was run, were dead, the field notes lost or destroyed; a base line was only run east and west, and making but two corners to each tract of land, no marks from one corner to the other, and, therefore, the old base line was nothing but an imaginary line. How was the surveyor general of the 10th district to guess at what variation the old base line was run? More than reasonable exertions were not required by law. The court have said, that a survey is in reasonable conformity with the calls of the grant, provided it is made in good faith, although the compass may vary from the old survey.
    The old corners, that were found by Brown in 1825, were found after the country was settled: he found by accident one of the corners of the extreme eastern tract, and by finding another he was able to calculate the variation at which the old base line was run, and, therefore, was able to find two or three others, but to this day, these surveys have not been run out, or they would lay according to the old base line. Such experiments were arrested by the deci-ion in the case of Brown vs. McLemore, at Reynoldsburgh, where Judge Turley, sitting as special judge, delivered the opinion of the court. But should the plaintiff in error recover the land in controversy, there is no doubt many an experimental line will be run, and if one old grantee finds he can get the house or orchard of his neighbor,or his field, or land, he likes better, or a spring, he will bring a suit or take possession, and be sued; and a harvest of litigation will ensue. This was not the object of the act of 1819.
   Txjbxey, J.

delivered the opinion of the court.

Two grants were issued by the State of North Carolina, one for two thousand five hundred acres of land to John Rice, the other for one thousand five hundred to Joseph Greer. These grants are founded on entries in what is called the Big Hatchie connection, in the Western District of the State of Tennessee. This connection consists of a great number of locations made by Isaac Roberts, previous to the year 1789, lying north and south of a common base line, and mutually dependant on each other. At the time these locations were made, the base line was run by Roberts, and trees at different places marked upon it. No other lines whatever were run or marked. The two entries of Rice and Greer lie on the north side of the base line, and adjoin each other. The lessor of the plaintiff claims under the grant of John Rice, and the defendant under that of Joseph Greer. These grants do not, by their location, conflict with each other; and the defendant’s possession is confined to the limits of Greer’s grant. This would seem to be conclusive upon the rights of the parties; and would be, but fora difficulty which has been produced by a procession of this connection of land under the provisions of the act of 1819, ch. 1. This act was passed to make provision for the adjudication of North Carolina land claims, and for satisfying the same by an appropriation of the vacant soil south and west of the Congressional reservation line. By the 7th section it is provided, that each surveyor shall publish the boundaries of his district, notifying all persons desirous of making entries within the same, of the day on which his office will be opened for the reception of entries, and requiring all persons claiming lands therein, by virtue of a grant or grants from the State of North Carolina, to cause the same to be processioned before the 1st day of October, 1820.

The 8th section provides, that if any person or persons claiming as aforesaid, shall fail to identify his, her or their grants agreeable to and within the time prescribed by the 7th section, it shall and may be lawful for the surveyor of the District in which such grants may lie, to cause the same to be run and plainly marked in the manner prescribed for original surveys, agreeably to the calls, provided they are special or depend upon the grants, the locality of which may be clearly identified; the lines of which when thus surveyed, and marked out and laid down upon the general plan, it shall not be lawful for any subsequent enterer to cross, but the same shall be notice to all subsequent enterers.

The owners of the Big Hatchie connection^ neglected to comply with the provisions of the 7th section of this statute within the time prescribed, and the surveyor of the district in which it lies, proceeded to perform the duties required-of him by the 8th section. In doing so, he commenced at the beginning corner of the base line, and in running east according to course, from not making a proper allowance for the variation of the compass,Nand a neglect in searching for the marked trees on said line, he varied from the line originally run by Roberts south, to a considerable extent from the beginning to the end. He were not more successful in marking the dividing lines north and south between the different claims lying on the base line. By means of these mistakes, every grant is removed from the position it originally occupied, and made to cover lands not originally embraced by its lines. The consequence of this has been, that unless the owners of the lands in this connection Would mutually agree to hold either by the old locations of Roberts, or by the procession made under the act of 1819, there will be a very entangled confliction of boundary between them. This they have not done. For the lessor of the plaintiff claims under the procession, and the defendant under the original location; and it is this that produces the controversy between them, for by the procession the grant of Rice is made to cover a portion of the land contained within the grant of Greer according to the entry, and of which the defendant is in possession.

Upon the trial in the circuit court, the judge charged the jury, that if a grantee of lands in the Western District, failed to have his land processioned within the time prescribed by the act of 1819, and the surveyor of the district caused the same to be done and spread upon the general plan of his district, it would be binding and conclusive upon the grantee, and that he would be estopped from denying or disputing the lines thus established, although they might vary from the original, and cover other and different lands than were covered by the original location. There was a judgment for the lessor of the plaintiff, to reverse which this writ of error is prosecuted. The question for consideration is, whether the defendant is bound by the procession, and estopped thereby from claiming the land covered by his entry and grant according to their ealls.

That the land in dispute is covered by the entry and grant of Joseph Greer, can admit of no controversy; and of consequence he and those claiming under him have had the legal title thereto. The question then is at once presented, if it be lost, how has it been done 1 It is not pretended it has been done by voluntary conveyance ; and the 8th section of the Declaration of Rights in the Constitution of Tennessee, in conformity with magna charta, provides, that no man shall be disseised of his freehold but by the judgment of his peers or the law of the land. It has not been done by the judgment of his peer's, and it only remains to inquire whether it was by the law of the land.

It is contended that the act of 1819, is the law of the land, and that by a fair construction of it, the defendant has lost his right to the land that he originally owned, and is compelled to take in lieu thereof, other and different lands as specified by the erroneous procession of the surveyor under the powers vested in him by the act.

Whether a statute is the law of the land within the meaning of 'the 8th section of the Bill of Rights, always depends upon two propositions:

1st. That the legislature had the constitutional power to pass it.

2d. That it is a general and public law, equally, binding upon every member of the community.

If we were to give the construction asked for by theles'or of the plaintiff to the act of 1819, we should find it exceedingly difficult, when tested by the above propositions, to declare it the law of the land. But we are relieved of the necessity of determining this delicate question, because we do not believe the construction asked for to be correct. Suppose the legislature to have the power to pass a statute, such as it is argued the act of 1 <S 19 is, by which a freeman is to be deprived of his freehold, yet this result cannot be,produced by equitable construction, but must be by positive enactment. If the power exist, it is a high prerogative, and we will not intend that the legislature design to exercise it, unless they say so in express words. No argument from policy or inconvenience, or the harmony of system, can be permitted to have any weight, in the decision of such a question.

Has the legislature provided, then,by the act of 1819, expressly, that a grantee who neglects to hove his land processioned as therein directed, shall be bound by an erroneous procession made by the surveyor, and estopped thereby from claiming to his true line? Assuredly not. Indeed, if construction could be resorted to for the purpose of establishing this principle, it tvould be found exceedingly difficult, if not impossible, so to construe the statute.

It is unquestionably true, that it was a thing very much to be desired that all the old grants in the Western District should be identified before the offices were opened under the act of 1819, for the reception of entries; and no doubt the legislature had great anxiety to have this done, in order to prevent a conflict of titles and consequent litigation, with the evils of which they were well acquainted by previous experience; and no doubt they did design tp do whatever they legally might, to cut off this fruitful source of mischief. They have provided that in the case of neglect on the part of the grantee to have his land processioned, the surveyor may do so from the best information he can procure, and cause the same to be placed upon the general plan; and that no entry shall be made within the limits thus processioned. If in addition to this, they had said that the grantee, in consequence of his neglect, should be bound by the procession thus made, and estopped from saying that it did not cover his land, all danger of conflict and confusion would have been completely obviated. Who can doubt that nothing but an apprehended want of power prevented this being done? The statute is drawn with marked ability, and bears in its every feature, strong marks of a deep anxiety that the Western District should not be visited by that evil resulting from the uncertainty of land titles, which had afflicted so heavily the other portions of the State. Every thing is done to prevent conflicts between the old grants and new entries, except compelling the grantees to abide by an erroneous procession of the surveyor. If the grantee procession his land under the 7th section of the statute, there is an end of it. If the surveyor procession'it correctly, there is likewise an end of it. If it be processioned by the surveyor incorrectly, all persons are prohibited from interfering therewith; so that the grantee may take it if he pleases. So that the only contingency is a refusal on his part to be bound by an erroneous survey on the part of the State. The not having provided for this by express enactment, is almost conclusive evidence, that it was not so designed.

We then think the charge of the circuit judge was erroneous, because the statute does not expressly undertake to disseize the defendant of his freehold, and that if such a thing could be done by construction, such is not the legitimate construction of the statute. This decision is not in conflict with the case of McLemore and Brown, determined at Reynoldsburgh in 1829; that was a contest between the grantee and enterer. The grantee chose to take the land assigned by the State, and the entry was pronounced void under the 8th section of the act of 1819. The court expressly refused in that case to determine the question made in this, as being unnecessary for its decision.

The judgment of the circuit court will be reversed, and the case remanded for a new trial.  