
    Supreme Court of Errors and Appeals. Nashville.
    1813.
    JOHN MAYFIELD v. BENJ. SEAWELL AND OTHERS.
    
      D . Chancery.
    Equity will relieve against mistakes in deeds. [Ace. Barnes v. Gregory, 1 Head, 231; Cromwell v. Winchester, 2 Head, 389; 2 Hum. 72; 9 Y. 266.]
    Equity will relieve against mistakes in records; certainly if the mistake appear of record. [Acc. Reid v. House, 2 Hum. 676.]
    If a sale of a warrant of survey be made by an agent, and the principal die afterwards and before assignment of the warrant, the purchaser’s title will not.be affected, the purchaser being regarded, in equity, as the real owner, from the time of the agreement.
    The Statute of Limitations does not begin to run against the owner of a land warrant, until there is a cause of action; nor, it seems, until the coming of age of such owner, although there were other heirs, co-owners, who had attained full age, and who had parted with their interests to the complainant before thfc statute attached. [Citing Hard. 366.]
    The bill stated that Robert Morrison had a warrant, No. 641, located on Cedar Lick Creek, for six hundred and forty acres of land, upon which location a grant had issued ; that before the 31st day of July, 1784, Southerland Mayfield, the ancestor of the complainant, purchased from Anthony Crutcher, a warrant, regularly issued to Morris Morgan, No. 68, which was entered the 31st day of July, 1784, in the following words: “ No. warrant, 68. Morris Morgan enters six hundred and forty acres, lying on Indian Camp Creek, a branch of the east fork of Mill Creek, beginning at the Hurricane, and running down the creek on both sides for quantity.” That at' the time this entry was made, Southerland had purchased and actually paid for the warrant in castings, salt, and other articles, but Crutcher had not transferred it by indorsement, alleging that an intermediate assignment had not been made, which, however, would shortly be made; that the warrant was owned jointly by James Cole Montflorence, Anthony Crutcher, and Thomas Tulloch; that Montflorence and Tulloch had given Crutcher full power to sell it; and that Crutcher had a similar power from Tulloch alone.
    The bill further states that after the entry was made, Southerland May-field caused it to be surveyed; but that at the time of the survey, the warrant was not present; and when the plat and certificate was made out, a blank was left for the name of the assignee, and of the original owner and number of acres, which was to be returned to the surveyor’s office, of which Crutcher then had the superintendence, in order that Crutcher might fill up the blanks; that both warrants being before Crutcher, he filled up the blank with the number of Robert Morrison’s warrant, and in his name, instead of the name of Morris Morgan. Accordingly a grant issued to Mayfield upon Morrison’s warrant, which had been already granted, instead of the warrant in the name of Morgan.
    The bill further states that after the death of Tulloeh, the defendant Seawell married his widow, and obtained letters of administration upon his estate; that he procured an act of Assembly to be passed, authorising him to make sale of the real estate of Tulloeh, suggesting to the Assembly that Tulloeh died on the 10th day of January, 1785 ; that after the passage of this Act, Seawall by some means got possession of the warrant which issued to Morgan, and sold it to the defendant Brown, who caused a survey to be made of the same lands previously surveyed for Mayfield, and procured a grant to issue; but that it was agreed that Brown should hold this land in trust for Seawell, his wife, or some of her children.
    It was further charged that the warrant which issued to Morgan, actually accompanied the plat and certificate of survey made for Mayfield into the secretary’s office; that one William Tyrrill had access to that office, by whom the warrant was purloined; and that it was afterwards found in his chest, claimed by, and delivered to Seawell.
    Seawell answered that the entry in the name of Morrison, on warrant 641, was not made on Cedar Lick Creek, as set forth in the bill; but was made as follows : “ July 14th, 1784. Robert Morrison enters six hundred and forty acres betwixt Brown’s Creek and Mill Creek, joining James M’Neese’s pre-emption on the south and west lines, running south to include a spring and tree marked W. H. ” Which entry remained unaltered on the surveyor’s books until after the grant issued to Mayfield on warrant 641. The grant to Mayfield is dated the 7th day of March, 1786. That on the 30th day of July, 1786, another entry on warrant 641 was made as follows: “No. 641. Robert Morrison enters six hundred and forty acres on the west fork of Cedar Lick Creek, adjoining John Elliott’s entry on the south and west lines.” ■
    Seawell denies any knowledge of the sale made by Crutcher to Mayfield ; but he charges that, if any sale was made, it was of warrant 641; because the warrant to Morgan was regularly transferred to Tulloeh on'the 13th day of January, 1784, so that if it was the one sold to Mayfield no intermediate assignment was necessary. He denies that Mdntflorence, Crutch-er, and Tulloeh were the joint owners of warrant No. 68, or that Crutcher possessed any power from Tulloeh to sell it. He alleges that warrant No. 68 did not accompany Mayfield’s survey into the secretary’s office, nor was it ever in possession’of Tyrrill, but remained in the surveyor’s office until about the year 1800. He admitted that Brown only held the land in trust for the benefit of the only surviving son of Tulloeh; and that he had sold a part of the land to the defendant Thomas Seawell, but had made no deed of conveyance.
    
      Seawell also relied, by way of answer, upon the Statute of Limitations.
    Brown, in his answer, denies all knowledge of the facts set forth in the bill. He admits that the grant on warrant No. 68 issued to him ; but alleges that it was not by his procurement, and that he only holds the land in trust.
    The warrant No. 68 was produced in evidence, upon which was an assignment from Morgan to Tulloch, dated the 13th January, 1784; also, an assignment by Crutcher as the “ special attorney ” of Tulloch, dated the 30th day of April, 1784; and an assignment from Seawell to Brown, dated the 20th day of April, 1805.
    The complainant produced in evidence the following instrument of writing:-—
    “ Know all men by these presents that we, Thomas Tulloch, James Cole Montflorence in his own name and in the name and as the attorney of Anthony Crutcher, by virtue of a proxy of said Anthony, have covenanted, bargained, and agreed, and do by these presents covenant, bargain, and agree for ourselves, our heirs, &c., that each and every tract of land which each of us three do hold, possess, or have a right to at this day, either by purchase, deed, bonds with promise of deeds, or otherwise, which lands, lying and being within the reserve of lands for the officers and soldiers of the continental line, be, and are hereby solemnly declared to be the joint property of us three, that is to say, that each of us do by these presents hold and possess in each and every tract of land owned by us, the one third of it. And we have further covenanted and agreed that all sales of said lands made by Anthony Crutcher, by virtue of the proxy of the said Mont-florence, shall go to the benefit of us three, as also all future sales made by either of us. And it is further agreed that the said Tulloch, having vested the said copartners with the warrants of lands he had purchased from Benjamin Williams, Esq., Archibald Butts, drummer, and Morris Morgan, private, the said Crutcher and Montflorence agree to make their two shares of lands amount, with the above tracts of Tulloch, to thirty thousand acres. And it is further agreed that, upon the quantity of thirty thousand acres being made up, all future purchases shall be made at our joint expense. And it is further agreed that the above lands shall continue in copartnership until the 1st day of November, 1785, or until deeds be procured for the whole ; as also the funds that may accrue from the sales,” &c.
    The paper was signed and sealed by Tulloch and Montflorence on the 19th day of July, 1784. Upon the 17th day of October, 1784, Crutcher, by his written agreement under seal, signified his entire consent to the contract.
    It did not appear that Crutcher or Montflorence had ever contributed any warrants to make up the thirty thousand acres.
    The plat and certificate of survey made by John Buchanon for Mayfield was produced. It purported to be made upon warrant 641, for Mayfield, assignee of Crutcher, who was assignee of Tulloch, who was as-signee of Morrison. A grant issued upon this survey, as set forth in the bill; but upon the warrant to Morrison no assignment appeared. Another grant afterwards issued to Robert Evans upon that warrant.
    ■ It appeared from the deposition of Crutcher that he sold a warrant for 640 acres to Mayfield, from whom he received a valuable consideration; but he could not recollect whether the warrant he sold had issued to Morgan or Morrison, — that hé sold the warrant before he made the transfer ; and that he had a power of attorney, independent of the articles of agreement, from Tulloch, to sell thb lands, which power he yet had in possession. But this power was not produced in evidence.
    . John Buchanon, the surveyor’, swore to the mistake in filling up the blanks in the plat and certificate of survey.
    Two witnesses, on the part of the complainant, proved that Crutcher sold a land warrant to Mayfield, and received pay therefor in salt and castings; but it -was proved by one Edward Trice, a witness for the defendant, that he heard Crutcher say that he never had sold Morgan’s warrant to May-field.
    It appeared by the certificate of the Secretary of State, that the warrant No. 68, which issued to Morgan, was among those taken from the office of Martin Armstrong, late surveyor-general of the military lands, by the commissioners appointed by North Carolina to take charge of the books and papers belonging to his office ; that it was by the commissioners deposited in the office of the secretary, and by him deposited with William Christmas, the successor of Armstrong.
    It was admitted that Tulloch died on the 10th day of January, 1785.
    
      Whiteside and Haywood, for the complainant,
    argued,
    1. That the Act of Limitation could not attach to the remedy sought by the complainant, because no remedy existed at law. The defendants stand in the nature of trustees, holding this property to the use of the complainant; and, besides, there is fraud here. 1 Fon. Eq. 322 ; 1 Wash. Rep. 147 ; 1 Call, 423, 202, 429, 198, 542; 2 Call, 5'42 ; 1 Vern. 250.
    2. If Crutcher had no power when he sold the warrant, still he had a proper authority when he actually made the transfer, which makes the sale valid.
    3. The circumstances of the case prove that Crutcher had authority to sell the warrant at the time the sale was ¿nade.
    4. If the title of Mayfield to the warrant is defective, still he has an equitable right to the land by virtue of the entry. It was made by him, and he has paid all the incidental expenses.
    5. The locator’s part, at all events, clearly belongs to the complainant.
    
      Beck, Trimble, and Cooke, for the defendants,
    contended,
    
      1. If Crutcher had any authority to sell the warrant it was by virtue of a power from Tulloch. The transfer of the warrant was on the 30th of April, 1785, and as Tulloch died on the 10th of January preceding, it of course was made after his death, and consequently is void. Nor does there, indeed, sufficiently appear that any consideration was paid to Crutcher; and if there was not the complainant is a mere volunteer. 2 Com. Dig. 349 ; 2 C. 8, 417 ; 2 T. 9, 418; 2 T. 10, 421; 2 T. 16.
    2. If the .sale of the warrant is attempted to be supported under the articles of agreement upon the ground that there was an interest coupled with an authority to sell, we answer that Crutcher sold this in his own name, and personally warranted the right to Mayfield. From the articles Tul-loch had contributed his full share of 10,000 acres. He never received any part of this, it having been converted by Crutcher. Equity will not, therefore, take the benefit of warrant No. 68 from his heir. And it may also be remarked that Mayfield did not purchase from the faith of the partnership, but on the representation of Crutcher that he had a power of attorney from Tulloch. Crutcher swears that he has such authority, and no decree ought to be passed unless it is produced.
    3. The statute of limitation is a complete bar to the complainant. There is no fraud in this case; but if there were there should have been an allegation in the bill that it was only discovered within three years. 2 Com. Dig. tit. Chy. 268 ; 3 P. Wms. 143; 1 Har. Chy. 268 ; 1 Yern. 185 ; ante Shelby’s heirs, &c. v. Shelby.
    4. It is not competent for the Court to inquire into this mistake, as that would be to destroy a record by parol proof. Tenn. Rep. 15.
    5. The bill alleges that the purchase was made by Mayfield before the 31st day of July, 1784; if so, it was before Crutcher had any right to sell if the articles conferred any. He could ..have no power until he acceded to the agreement, which was not until the 17th day of October following. And when the article comes to be examined it will be found that it conferred no authority on Crutcher to sell warrants.
   Oveeton, J.

delivered the following opinion of the Court: —

The defendants oppose the claim of the plaintiff on grounds of fact as well as law.

1. It is insisted that there is not sufficient proof of the purchase of the warrant No. 68, or payment of the consideration; and if this, were, proved the assignment is made by Crutcher after Tulloch’s death, and therefore void.

2. There is not satisfactory proof of a mistake as alleged.

3. But the article of copartnership does not confer on Crutcher the power to sell warrants.

4. Nor does Montflorence’s consent to the sale appear.

5. If there was such mistake as is alleged, this Court possesses no ground of jurisdiction on which it can examine into the affair.'

6. The demand is a stale one and ought not to be encouraged.

7. The statute of limitations bars the claim.

On the first point, the Court is satisfied that Mayfield did purchase the warrant of Crutcher before the entry was made, — that Mayfield made that entry for his own benefit, —that the consideration was paid, and that a mistake took place in returning the plat of survey as charged in the bill. It is, however, insisted that this Court cannot, consistently with the principles of equity, take cognizance of this part of the case; and for this purpose Tenn. Rep. 15 and 402 have been relied on. There is no doubt with the Court but that the grant to Mayfield vested the legal title in him. Whether in opposing the claim on Brown’s grant in a court of law that court would examine the statement of the party, with a view to ascertain a mistake, it is not necessary to decide; for it cannot be disputed that equity has jurisdiction in relieving against mistakes in deeds. Nor do the cases referred to from Tennessee Reports in the least degree weaken this position. Equitjq then, having jurisdiction, either concurrent or exclusive, for as respects this case the effect is the same, the Court has carefully examined and considered the pi’oofs, and find no difficulty in saying that the plaintiff’s bill is supported in this respect. Tulloch died in January, 1785: the Court deems it useless to inquire whether Crutcher was competent to make an assignment of the warrant after Tulloch’s death on the mercantile idea of survivorship in copartnerships, the plaintiff’s case being sustainable on another ground. Crutcher, by the article of agreement, had an authority to sell this warrant in July, 1785, when it was sold to Mayfield, though not assigned then. From that time equity considers Mayfield the real owner of the warrant. - Crutcher, after the receipt of the consideration, ought immediately to have assigned the warrant. This Court considers a thing as done, which by agreement was to have been ¡rerformed. It is no objection of weight that Crutcher did not sign these articles until after the warrant was sold. It was not expected that all the parties could sign at the same time. Those who executed were then in North Carolina, and Crutcher here, many hundred miles apart. Montflorenc'e’s assent to the sale sufficiently appears, first by the articles of copartnership; by his knowledge of the fact; his residence in this country from 1784 until 1798, without making any complaint, and other circumstances detailed in proof altogether forming an irresistible aggregate of testimony.

An objection for want of jurisdiction being at all times entitled to the most attentive consideration, it may not be amiss to distinguish this case from those cited in relation to mistakes.

To impeach a matter of record upon the ground of parol proof alone, is a question which would certainly not be entertained in a court of law whatever might be done in a court of equity; but this is not such a case. It appears evident from record, that the warrant No. 68 should have been returned with Mayfield’s plat instead of warrant No. 641. The entry on warrant No. 68 is for the same land, and no entry appears for this land on the other warrant. By law and usage the warrant entered should have been surveyed and returned; it is a fair and legal presumption that it was intended. No. 641 had never been assigned at all; this has to Mayfield. Of record, therefore, the mistake appears.

The last proposition to be considered is the statute of limitations.

It is not pretended at the bar that the possessory limitation of seven years applies.

The question relates to the plaintiff and not the defendant. It is assumed in argument that the plaintiff should have brought his action within three years; or, as insisted by the defendants, that the plaintiff should show that the fraud was discovered within three years; citing in support thereof, 2 Kyd’s Ed. Com. Dig. 268; 1 Har. Pr. Ch. 267, 8; 3 P. Wms. 143.

In opposition various attitudes have been taken by the plaintiff.

1. There was no time from which the statute could be made to run except from the survey of Brown’s claim (13th August, 1807), or date of his grant, 17th February, 1808. As the warrant No. 68 was entered and put into the office on the 31st J.uly, 1784, the law will presume it remained there in the keeping of the proper officer until it passed into a grant, and against this presumption no evidence can be received. The suit was commenced on the 17th March, 1810, so that three years had not elapsed from the time of the survey; whilst the warrant remained in the custody of the law or the hands of the surveyor in his office, an action of trover and conversion could not have been brought at law. As there was no injury to the complainant until a grant issued to Brown, there existed no ground on which he could commence an action at law or in equity. The statute cannot begin to run until there is a cause of action. The complainant having the le-ral title he was not affected until Brown obtained a grant, which, together with the entry to which it was united, enabled him to defeat the complainant’s claim. Under all the circumstances of this case, the Court deems this reasoning correct as to the time at which the cause of action arose. See 1 Call, 198, 429 ; Sch. & Lef. 413, 425.

But the statute does not apply on another ground; that Mayfield, the son and complainant, did not arrive at age until within three years before the action was brought; though there were other heirs who had attained full age, and who had parted with their interests to the complainant before the statute attached. See Hardin’s Rep. 366.

The Court cannot see any force in the objection that this is a stale demand.

The complainant must, therefore, have a decree.  