
    Bourland vs. Tipton and Douglass.
    Under the acts of 1819, ch. 1, sec. 9, and the subsequent acts upon that subject, the surveyor acts in a ministerial, and not a judicial capacity, and consequently he cannot inquire into the truth or falsehood of the affidavit filed by one claiming to be an occupant.
    The affidavits and survey grounded thereon, are prima facie evidence of a preference of entry, by virtue of a warrant in the occupant, and nothing more.
    The probate of occupancy or residence filed with the surveyor, and survey made thereon, are not conclusive against a subsequent enterer, but are subject to be disproved on an issue made up under the act of 1831, ch. 51, sec. 4.
    Willie Kimbrough and Buckley Kimbrough, each had an occupant claim in the eleventh district, regularly proved, surveyed and entered on the surveyor’s books and general plan, by virtue of the occupant law of 1826. These claims were assigned to John Douglass. On ° ° the first of January, 1833, Dubart L. Bourland offered an entry to the surveyor for two hundred and twenty-eight acres, part of the land within the occupant surveys. The surveyor refused to receive it. A writ of mandamus nisi was issued. Tipton, the surveyor, answered that the occupant claim stood fair on the records of his office, and therefore he could not receive the entry. Douglass was permitted to defend, and answered the same: An issue was made up, pursuant to the act of 1831, to try the fact, whether Douglass was the assignee of occupants, bona fide, entitled to a preference of entry, at the time Bourland offered to enter? On the trial, the probates, surveys and entries of the Kimbroughs were proved to have been regularly made. The plaintiff offered to prove that the right of preference never existed in the Kimbroughs; that they never did reside on the land, &c. But the court rejected the evidence, and held the record evidence of defendant conclusive, and that no testimony could be heard to disprove the recorded facts. To this exception was taken.
    
      V. D. Barry, for the plaintiff in error.
    1st. The act of 1832, ch. 29, sec. 5, authorizes warrant holders to make entries not interfering with any occupant.
    2d. Is the probate of occupancy, offered in this case, sufficient to establish a right, under the act of 1826, ch. 7, under which they claim?
    The act of 1819, ch. 1, sec. 9, provides for persons who resided on vacant lands on the 1st of September, 1819. 2 Haywood and Cobbs, 88.
    The act of 1826, ch. 7, provides for persons who may have settled and were actually residing on the first of May, 1826.
    This probate is made in conformity with the act of 1819, as it only states a residence. But the act of 1826, under which they' claim, requires, first, a previous settlement; second, an actual residence; therefore, under that act the probate is insufficient.
    To constitute a residence there must be an animus manendi. 1 Kent, 76. Judge Addison defines an actual settlement to be “an actual, personal, resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family,” &c. Add. Rep. 385. And again; “he must reside on the land and make it the residence of his family. Add. Rep. 340.
    3d. Is the probate of occupancy, filed with the surveyor, conclusive against a bona fide claimant?
    The act of 1831, ch. 51, sec. 4, authorizes an issue to be made up if any material facts charged in the petition, be denied .in the answer. The falsehood and fraud of the probates is charged in the petition and denied in the answers. An issue is made up to try “if John Douglass was entitled to the premises by a bona fide occupancy?” How can this be determined, if all proof tending to show the occupancy to be otherwise than bona fide be excluded?
    
      W. H. Humphreys, for defendants in error.
    The first question to be settled, is, whether the legislature could pass occupant laws excluding the warrant holders? This I conceive cannot be made a question without destroying principles heretofore settled.
    The surveyor is a state officer, with prescribed limits and a prescribed sphere of duties, as was observed in the case of M’Lemore vs. Wright. He acts upon powers granted expressly, and wherein power is withholden, he hath none. In no case can .the court force an officer created by law, and acting within a certain sphere, to go beyond those limits without the exercise of political and legislative powers.
    If the State of Tennessee has failed to create officers and a system to carry into effect the compact with other governments, she can only be held responsible in her political capacity. The judiqiary cannot undertake to do the duty and act in the place of the legislative branch. If the bread of good faith in the legislature was ever so apparent, the court could not reach it without the instruments were put in their hands by the legislature or the general government.
    The second question is, whether the deposition of two credible witnesses, taken before a justice of the county, and acted upon by the surveyor, and the entry surveyed and laid down on the general plan, excludes the party from giving evidence to contradict the depositions and the award of the surveyor. " -
    The court will observe that this presents a different question from the claims of two, disputing for the validity of their respective occupancies; in that case you might have more grounds for investigating the priority and good faith of each occupant. This presents the case of a warrant holder contending against an occupancy regularly established according to existing laws. Neither is the question here whether the party could prove the probate forged, or that the justice did not submit the oath, or that he whs not a justice, or that the man who pretended to have taken the survey was not in fact surveyor; but it presents the naked question as to whether the plaintiff, a warrant holder, should be permitted to prove that affiants were not credible witnesses, or that those claiming the land as occupants, or their assigns, did not reside on the premises in question at the time the witnesses swore they did reside there.
    I believe the intention of the legislature will be best promoted by declaring these depositions and the reception of them conclusive. The object of the legislature through a series of years has been to give stability and absolute security to all occupant claims, and to elevate that sort of claim in the eyes of the community. We see this manifested in all the acts in this probate system; in the general plan, in the rendering them saleable and transferable, and making records of these transfers, and in remedies for the recovery of them. The object seems to have been to give, them as many of the properties of real estate as possible. They have succeeded — for some of the most valuable improvements in the whole country have been created on the faith of these acts of the legislature. Can any one doubt but that the best way to give security to these claims and place them upon the footing of real estate, is to make the affidavits of credible men conclusive of the facts stated in them? And can anyone doubt, but that the best way to general insecurity would be to say, that an individual who had a warrant for seventy-five acres of land, could lay it upon the ho use and spring of his occupant neighbor, and oust him of his possession apd labor?
    We would here state, that the main safeguards to landed estates in our country are, 1st. The statutes of frauds;, and, 2d. The statutes of limitations. The depositions-of the witnesses are placed upon the record and pro nounced credible by the surveyor: Are important acts of his, based upon the supposition, they are good, to be disputed by any body that may hold the warrant. Is not this violating the statute of frauds ? Is he not ousted of his possessions by parol testimony? Is not there as much danger of perjury in regard to valuable occupancies as there is in regard to deeded lands? It is said, is it possible that we shall not be permitted to prove palpable perjury? How can we know that perjury may not be committed on disproving the affidavits of the credible witnesses? Are the dangers of perjury increased or diminished, when the wild forest has given way to a cultivated farm, a well, a house, and all the conveniences of dwelling are made. If these claims have the same value in the affections of the people, would there not be the same necessity for the legislature to guard against the commission of frauds and perjuries in regard to them, as to other lands;' and would not such a purpose be promoted by declaring this probate of record conclusive?
    The object of the legislature seemed tobe to fasten citizens to the soil by giving them every incentive to the improvement of it. Would not the purpose be advanced by letting the law be understood, that wherever the records of the surveyor’s office showed a regular' entry of occupant title, (forgery excepted,) that the land was forbidden fruit, rather than by setting each warrant holder to investigating the claim of his neighbor by hunting up testimony to harass him?
    2d. No length of time bars an investigation if this record be not conclusive; no statute of limitations interferes to secure the repose of the occupants.
    The original occupant is gone to another State, or dead; witnesses are’dead, for perhaps years have gone by since the proof of occupancy was made, and the property sold to an assignee who knows nothing of the facts. Much labor is placed on the premises, but he does not know and cannot know that any of it was done previous to the probate. He is thrown into jeopardy and perhaps stripped of his rights by perjury.
    If twenty thousand occupants are to be thrown in such jeopardy at this time, why was so much trouble taken to require all this record evidence of their occupancy?
    In protecting the repose of the occupant holder and making him stable in his seat, with what right can the warrant holder complain? Has he any right to this specific spot of land? Has he any rights, acquired previous to the labor that has been placed upon it, that has been violated by the occupants ?
    If he came into this court making out a clear case of violated and vested rights to this spot of land, the court might listen to him. But has the legislature no right to say what parts of land shall be brought into market? Have they no power to prescribe the mode and time of atretic#!., &c? I think they have.
    
      This warrant holder has no claim upon this spot of land that was violated when this occupant was expending his labor upon it. If this court acknowledge the right of the legislature to prescribe the duties and bounds of the State surveyor, and it appears that power is withholden to operate upon occupant claims, it is most palpable to my mind that the warrant holder stands in relation to the occupant, even in cases where he has committed a gross fraud upon the occupant laws of the State, in the same situation that a non-resident alien does to citizens, where the alien has acquired lands within our government, A citizen has defrauded the law, secured an occupant claim and sold it; valuable labor is then put on it; an alien gets land in our government; no citizen can oust him; the government may oust him, but no body else. There is no process planned or authorized known to me by which an alien can be ousted on these grounds by a citizen. Wilson vs. Peck, Mar. & Yerg. Rep
    Why should the warrant holder, as he has not any tittle to this spot be permitted to destroy the validity of record proof, based upon oaths of credible men, and oust another citizen of his labor and his possessions, when the citizen, who has a general right to enter vacant land is not permitted because the lands he wishes to enter are held by a foreigner, who is not allowed his important attribute of citizenship? I confess I cannot understand the reason, if any exists.
    'But it seems to me that there is contained in the act of assembly of 1819, intrinsic proof that it was to be considered conclusive. Why not take the affidavit of the party himself? Why require two credible men, the most “that the law ever requires in proof of any fact? Why give the surveyor the -right of judging of the credibility ■of these men? He must know them to be credible men, and being required to go upon the spot, and being forced -to a certain extent to prove the truth of these affidavits, he is enabled to judge accurately on this subject.
    
      I conclude by saying that both policy and reason seem to speak, that the decision of the court below should be sustained. ■ '
   Catron, Ch. J.

delivered the opinion of the court.

The act of 1826 provides, that all persons who may have settled and were actually residing upon vacant and unappropriated land, on or before the 1st day of May, 1826, may have a quantity, not more than two hundred acres, so as to include his improvements, surveyed and spread on the general plan; and that such land shall not be subject to entry by another. The act of 1819, re-cognised by that of 1825, prescribes the mode of proof to authorise the survey and the entry on the general plan. The offer here was to prove that the affidavits on which the entries of the Kimbroughs were founded, were false, that the entries were fraudulent, and that the Kimbroughs had never been in possession and actually residing on that land.

The court below assumed the ground that the matter had been adjudged by the surveyor, and being adjudicated, was excluded from re-examination by any other tribunal. Had the surveyor been vested with powers to adjudge and determine the fact of actual residence, as a tribunal, then his judgment would be conclusive.

The land law of 1819, section 9, must determine the duties of the surveyor, in admitting an occupant to enter. It prescribes that the person offering to enter shall produce the deposition of two respectable persons, proving the necessary facts, sworn to before a justice of the peace, on which the surveyor shall be bound to receive the entry. He is not permitted to enquire of the truth or falsehood of the affidavits, and acts in a ministerial capacity. The doctrine holden in Pinson vs. Harkins and Ivey, 1 Yerger, 296, is conclusive of the position. The affidavits and survey grounded thereon, are prima facie evidence of a preference of entry by virtue of a warrant in the occupant, hut nothing further; the fact of actual residence may be disproved. So this court held in the case of Hunter vs. Starns, at Reynoldsburg, some years since, on an appeal from the chancery court at Jackson, where Judge Whyte, sitting as Chancellor, had holden the same.

The judgment will be reversed, and the cause remanded for another trial.

Judgment reversed.  