
    CIRCUIT COURT OF THE UNITED STATES.
    POLK'S LESSEE vs. ROBERTSON & COCKREL.
    Ejectment. Plea not guilty and issue.
    The plaintiff produced the oldest grant for 5000 acres of land, dated about the year 1786. lying on the head waters of Richland creek, beginning at John Nelsons south east corner [of grant No. 1120] thence north 1250 poles, east 610 poles, south and west to the beginning, in an oblong. John Nelsons grant was read, which calls to begin about three and a half miles nearly north from the mouth of Robertsons creek, lying on the head waters of Richland, and Robertsons creeks. It was proved, that these lands, with other adjoining tracts had been diligently searched after, previous to the opening of the office, in August, 1807, and could not be found, and therefore were not placed on the general plan contemplated by the 6th section of the act of 1806, c. 1. It was admitted that the defendants made their entry after the opening of the land office in that year, and obtained a grant before any corners or line of Polks tract, or the others adjoining could be found,which was in the year 1808.
    1. Admissions of parties evidence as to boundary, but not of what the law is.
    2. Grant, though covering land not on the watercourse called for, is sufficient.
    In order to prove the south east corner of Nelson’s tract, copies of two other grants to Nelson, of 5000 acres each, two to Martin Armstrong, and one to John Armstrong, all for 5000 acres each, were offered in evidence; this was objected to on the ground, that grants which were not called for either directly or indirectly by Polk, the plaintiff, could not be read, being irrelevant. It was answered, that a party had a right to read what records he thought proper as evidence, and the jury would judge whether the evidence had any bearing on the question or not.
    
      Per Curiam. Todd J. Sitting alone, M’Nairy J. having an interest did not sit. It is the duty of the court to see that the evidence is relevant, as much as it is, that it should be competent. When objections are made the court will exclude testimony upon either ground, when the incompetency, or irrelevancy, clearly appears, 
    
    When objections are taken to written testimony, it should be handed to the court for their inspection without reading, so that it may not have an effect upon the jury. Upon examination of the copies offered, the court said it was proper to receive the evidence, as there was such a connection in the calls of the grants, as tended to shew the boundaries of the plaintiffs tract; the dispute was a matter of identity only, and the evidence was proper. Copies of these grants were then read, from which appeared the following references in the grants.
    1st. John Armstrongs claim called to include the mouth of Robertson creek, and to adjoin Martin Armstrong; this claim of Armstrong calls to adjoin another claim of his, and this last to adjoin Thomas Polk the plaintiff.
    The second claim of John Nelson, calls to begin at the south east corner of his other tract.—John Nelsons, third tract calls to begin at John Armstrongs south west corner, all of which may be seen in the subjoined plat. Several searches had been made for these tracts without effect; at length among a number of persons in search of them Mr. Coffee and G. W. Campbell, esq. found one of the corners of John Armstrongs claim as they supposed (viz) at H. This corner was found by accident. Upon running north, trees were found marked at G. having a small variation from the course and distance called for in the grant; continuing north a beech was found at A. on the side of a dry branch as called for in the grant. This tree also varied from a north course more than the first; the grant calls at A. for a beech marked E. H. R. W. and an elm. The proof was, there was an elm on the opposite side of the branch, but not marked for a corner at all. The beech was marked with the letters E. H. R. W. and also with W. C. There was no line marked east, west or north from this place; there appeared an old line marked about 20 poles south of this place, none of the lines of Thomas Polk’s tract, were ever marked, nor corners made, except the supposed one at A.
    Haywood, Dickinson, and Campbell, for the plaintiffs,
    submitted the evidence to the jury without argument, considering it too plain to admit of any.
    Grundy, White, and Overton, argued for the defendant.
    1st. Upon the principle that the oldest grant holds the land conclusively in a court of law; and that nothing but questions respecting boundary can occur, it was contended, that the evidence offered by the plaintiff, did not establish the beech and elm as the south east corner of John Nelson’s first tract and consequently, the south west of the plaintiffs. The claim of the plaintiff is no otherwise established than by reference to Nelsons south east corner. How is that ascertained? It is said by finding marks at H. G. and at this place. There is no other proof. No person is produced, who made any of these marks, or saw them made. The survey of John Nelson’s second tract, and John Armstrongs, were made on the 11th and 12th of March, 1786. Col. Weakly was one of the persons along at the time the corners were made. Why is he not produced? There are many reasons why the beech at A. is not the south east corner of Nelsons first tract, called for by Polk. This place is called for in Nelson’s grant, as being about three and a half miles nearly north from the mouth of Robertsons creek. Mr. Coffee tells us it is more than three quarters of a mile east of a north course from the mouth of that creek, and about four miles from thence. It cannot be the place, the distance does not answer; and there is a great variation in the course. If a latitude of three quarters of a mile be allowed to the east or west, any other greater distance may with equal propriety. The tract of which this is a corner (John Nelson’s) calls for the head waters of Richland and Robertson’s creeks. This supposed corner at A is on the waters of Rock creek of Duck, another water course altogether, and is not marked as a corner for the tract, a beech & elm is called for in the grant, the elm is not marked at all, and stands on the opposite side, of the branch, where it is not reasonable to suppose a person would call for it, for a corner. A tree called for as a corner was surely marked as one. Beside, the beech does not answer the description; though marked as a corner for four tracts, it has more letters than are called for in the grant, viz. W. C. The proof proproduced, so far from shewing that this is the south, west corner of Polk’s tract, shews that it cannot be. There was not a single corner made at B. C. nor D. nor any line marked any where, so as to assist in establishing this place. We admit that if the place at A. was clearly established as the corner of the tract, that other corners or lines of the tract, not having been marked would not destroy the claim; but that is far from being established.
    The English law differs from ours, as it respects ejectments. There, a person may recover by shewing a right of possession alone, jus intrandi, without any title deeds whatever.
    
    Here—you must cover the possession by title, If it be necessary for the plaintiff to shew a title, it must of course be such a one as conforms to the principles of law. It must contain a description sufficiently special to give notice where the land is situated, so that other persons, who might have desired to appropriate vacant lands, could have an opportunity of knowing where it lay; and thus avoid being entrapped. Our law requires that grants and title papers shou'd be registered. What can that be for, except to give others who may he concerned to know, notice where land lies; and who can be more concerned to know, or more affected, than a subsequent enterer. Before the defendants made their entry, this land could not be found; it was not on the general plan, and it is manifest that the calls of the grant of Polk and Nelson, to which it refers never could enable a person to find the corner now claimed.
    In this view of the subject, it is insisted, that we are not bound to notice the calls of any claim, but Polk’s and Nelson’s, to which it refers. Nelsons does not call for any other claim; it is to begin about three and a half miles nearly north from the mouth of Robertson’s creek. The corner A. is three quarters of a mile from that course; the marks there do not agree. It is said that John Armstrong’s claim reduces every thing to a certainty, and id certum est quod certum reddi polest. How does this claim do it ? by calling to include the mouth of Robertson's creek? It does not state in what part of the 5000 acre tract it shall be included. Here then is a latitude of 1250 poles to go on,nearly four miles; the mouth of Robertson’s creek might be any where within that limit, agreeably to the grant.
    In looking for the tract after finding the mouth of Robertson’s creek, you would knew that you were then within the bounds of John Armstrongs 5000 acre trat of land, and you might know you were within two miles of some corner, or one mile of some line, but you could not tell where, nor how to find them; this will not fix the corners; going north you cannot find the corner A. by three quarters of a mile if you did, it would not answer the description as to marks, but the most decisive point of all, that the grant would not give notice, is, that the corner when found, is on the waters of Duck and not Elk, as called for in their grants; nineteen twentieths of their land at least, lying upon Rock creek of Duck. The plintiff might with as much propriety claim lands on Red River, one hundred miles north of this place. How could any subsequent locator, ever suppose, under all these circumstances, that the tree marked at A. was Polk’s south west corner, supposing him to have stumbled on it, for it must have been found by accident. The plaintiff’s claim does not include a single acre of Robertsons creek, and but very little of Prestons creek of Elk. We are told the ridge dividing Duck and Elk, is very flat and low at this place, and consequently the surveyor and locator of the land, might suppose they were on the waters of Elk.
    We are also told, that the line which is found marked in going south from A, shews that the surveyor was running south, and consequently he might have travelled up Rock creek. In travelling from Elk, north, it might have been more difficult to tell when you passed the ridge, but not vice versa. In this country it will be recollected, that a grant can be legally obtained, without an entry under the laws of North-Carolina, upon removed warrants. There was no record kept of the survey, except in the secretary’s office of North-Carolina, and that has been determined insufficient to afford even constructive notice. The plaintiff had no entry; his grant then afforded us the only means of knowing the situation of his claim, and that alone was to govern our conduct in entering. It should therefore surely contain as, much certainty as an entry. But it was intended by law to contain more, act 1777, c. 1, s. 5, 10. Certainty is what the law requires, Plow. 84, 202, and for want of this certainty, the reasons for requiring which we have stated, the grant is void.
    The second ground we take is, that agreeably to the practice of the state, the younger grant can be given in evidence to defeat an older one, not obtained agreeably to law; on this last ground then, no doubt can exist respecting the application of our argument, and that the plaintiff cannot recover.
    The plaintiff's counsel in reply, stated, that they understood the court as having already intimated an opinion, that the question here was a mere matter of boundary. As to the doctrine of notice, or the notoriety of the calls of the grant, it is entirely out of the question in this action. If we establish this survey as having been made for the plaintiff, it is sufficient. All that we have to do is to satisfy the jury, that these are our boundaries. But admitting that you can go into equitable circumstances in a court of law, even on that ground, Polk’s grant is good. We admit that a title must shewn in this country. We admit that a title must be shewn in this country. Our title is more than twenty years old; when the land was surveyed it was troublesome times with the Indians—the country a wilderness, but little explored, and mistakes almost unavoidable; and if no mistakes in grants can be overlooked, there is not one in a thousand that will stand. Surveyors are public officers appointed by the public; not under the control of the claimants, and it would be highly unjust, that, their mistakes should prejudice persons whose lands they surveyed, and for this was cited first Haywood’s Rep. 100, 347, &c. But we insist that if you were to search for the land, the calls are sufficiently special. It is to be nearly north from the mouth of Robertson’s creek; go then to the mouth of the creek, and after going three and a half miles north, look about, and at three quarters of a mile’s distance to the east you find the beginning; this is nearly north, and the claims of Martin Armstrong and John Armstrong, prove it to be the place intended. Robertson, one of the defendants, who was with the party who found the corner, said he believed it was the corner of Polk, and told the plaintiff he would admit it, provided he would caveat him.
    Some dispute arose as to the amount of the testimony respecting Robertson’s admissions or acknowledgments.
    
      
      (a) 1 Cr. 118.
    
    
      
      (1) 3 Cr. 186. 4 Dall. 88. 3 Binney, 329.
    
    
      
       2 Bac. Ab.tit. ejectment A. ib. D. 3 3 East. 355, to 358.
    
    
      
       2 Hay. 157, 69, 88, 114, 336, 98, 11.
    
    
      
       It was so determined with respect to lands in the military boundary, where anoffice was always open, but this decision did not extend to lands lying within John Armstrong’s bounds. Hickman’s Lessee vs. Ward, Nashville, Nov. 1804.
    
    
      
       See 2 Bay. 539. 2 Binney, 109. Hardin's R. 436. 2Hay 349. 3Call 242. 1 Hen. & Mun.177. 2 Bay. 515.
    
    
      
       3 Call. 419. 4 Dall. 210, 218. Taylor and Quarles vs. Brown,S. C. U. S. 1812 Mss. 3 Binney, 30, 32.
    
   Per Curiam.

Evidence of admissions can be received in questions of boundary, as well as in other cases, but they should be clear and unequivocal to have any effect. It is always a suspicious kind of evidence, and the jury should be convinced that it was the intention of the party to admit a fact, being satisfied of its truth. In this case there does not appear to be a clear admission of the fact, but the jury will judge of this. Admissions of law, or what the law is, have no effect in a court of justice; they are never noticed.

The whole question before the jury depends upon the identity of the survey, or boundaries of the plaintiff's land. If the jury believe from the testimony they have heard, that this is the place surveyed for the plaintiff, and granted to him, they will find for him, otherwise for the defendant.

Verdict for the plaintiff.

Note. The letters A. B. C. D. represent the plaintiff's claim. A. B. S. R. John Nelson’s first tract. A. M. L. G. John Nelson’s second tract. N. O. P. K. his third tract. G. H. K. L. represent John Armstrong's. G. H. J. F. represent Martin Armstrong’s first tract and A. E. F. G. his second tract. 
      
       Admissions evidence as to boundary. See 3 John. 223, 499. 2 John. 120. 2 Dall. 94. 4 Hen. & Mun 194. 2 Hay. 219, in n. Hardin’s Rep. 282. Camp. Rep. 367. 4 John, 143. Gould Ed. Esp. N. P. 2 vol. 34. But not evidence as to title. 6 John. 19.
     