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are insinuating that the bar has enjoyed the monopoly PRACTICAL LOCATION OF DIVISION LINES. of judicial nominations long enough.
(Continued from p. 2.) The profession should not surrender, without a zealous struggle, the rights and responsibilities with which the people have intrusted them, and which Let us next inquire what kind of an agreement is they have hitherto so beneficently exercised. They necessary to effect a practical location. should guard jealously against the introduction into As we have seen, a majority of the court in Jackson judicial conventions of professional politicians and v. Dysling thought that a parol agreement to abide by office-mongers, and should claim as against them, and
a certain division line will be sufficient to prevent in behalf of their clients, the prescriptive right to
either party from claiming in ejectment, though it will control judicial nominations.
not pass the lands.
But this was an agreement that In conclusion, we would respectfully submit certain
had been recognized for forty years. considerations by which, in our judgment, the pro
Sellick v. Adams, 15 Johns. 197, was an action of fession should be guided in making their choice: trespass for cutting timber. There had been a general 1. We ought always to retain the present incumbent
submission by bond, seven years before, of all conif he has in the main satisfactorily discharged his
troversies and demands, and under this the arbitrators duties. This rule should not be departed from except had fixed a boundary line. This, the court said, would for most grave and unquestionable cause. It certainly
have enabled the defendant to maintain ejectment, ought not to be to gratify the ambition of some
and justified the trespass. aspiring rival. In Vermont, where the term of the
Shepard v. Ryers, 15 Johns. 497, was assumpsit to highest judicial office is only one year, all the evils of
recover damages for breach of an agreement under short terms and elective judges are averted by the seal, by which the plaintiff and defendant appointed invariable custom of a reëlection as of course, and the
certain persons to partition certain lands between the retirement of a judge from the bench, except by his parties. The defendant had refused to abide by the own will and accord, is extremely rare if not wholly award. It was held, that the plaintiff was not entitled unknown.
to recover any part of the consideration in a deed of 2. When, for any reason, a new selection is necessary
the premises which he had executed, his grantee never to be made, a candidate who pushes himself should be having been evicted, and his liability being merely jealously scrutinized, and men who have been promi- contingent; and they further remark, “ the partition nent party managers and office-seekers quietly ignored. made by the persons appointed for that purpose might This for many reasons; not the least prominent, this:
be considered in the nature of an award of arbitrators, Every lawyer who has busied himself with politics which, though it might not have the operation of conknows how impossible it is to attain that standard of veying the land, might estop the defendant." professional learning and accuracy necessary to a judge
In Jackson v. Gager, 5 Cow. 383, an action of ejectwhile engaged in the distracting diversion or absorb
ment, the question was of location. This depended on ing occupation of politics: and again, that the habits
a submission of the boundaries to arbitration by R. H., and associations of political life being once formed how deceased, as attorney. It was undertaken to prove difficult it is to break away from them, and a judge,
the execution of the power of attorney, and the court surrounded by political influences and intrigants, with
also admitted proof of a parol submission under it, ambitious aspirations and a head full of plots and
and of a parol award. On review, the court held the schemes, even if he succeed in holding the scale with
power not properly proved, and granted a new trial an even beam and keeping the bandage over both eyes,
for that reason. Then the court remarked, “without, can scarcely be expected to bestow upon the duties of however, intending to express a definitive opinion his office that engrossing and exhaustive attention so
upon the subject, that the submission and award, essential to their proper performance.
though relating to real estate and by parol, were valid, We have attempted no profundity in this article, nor
and not within the provisions of the statute of frauds," novelty either, but only “to tell you that which you
and continued so to remark for a page and a half, yourselves do know,” lest“lapsed in time and passion”
citing Jackson v. Dysling. the profession awake too late to find that they have
In Robertson v. McNiel, 12 Wend. 578, tried in 1831, permitted a sacred trust to be ravished from them, and
there was a submission in writing, not under seal, in proven recreant to their grave responsibilities.
1830, to arbitrators concerning a division line, and a written award. This was held conclusive on the
ground of estoppel. The cases relied on were those The bill passed by the New Hampshire lower house above cited. This seems to be the first decision necesfor the protection of the rights of married men relieves sarily involving the question. the husband of liability for debts contracted by his
Davis v. Townsend, 10 Barb. 333, tried in 1850, was wife before marriage, makes the wife liable to pay debts incurred previous to marriage, and sets apart all
an action of trespass, involving a division line and fence property which she may obtain in her own right for
between two farms, which had stood for thirty years. the payment of such debts.
The plaintiff showed title to the locus in quo, but the
defendant showed an oral agreement on the part of 16 N. Y. 354, that such an agreement, where there the plaintiff, that the fence might be straightened, in was no uncertainty in the grants, and no adverse pursuance of which defendant, about six years before, possession, was void, and this was approved in Vosmored the fence eighteen inches over upon the plain-burgh v. Teator. In the former case, A. and his tiff's inclosure. For that act this action was brought. grantors having possessed land on both sides of a It was proved that the plaintiff objected pending the ditch for more than twenty years, under claim of removal, and no consideration was paid. Verdict for title by deed, A. by parol agreed with B., who claimed defendant. On review, the court say: "It has been some of the land so possessed on one side, that the repeatedly held, that a parol agreement to ascertain ditch should constitute the division line, and B. enand establish a boundary line between the owners of tered and kept possession accordingly for five years. adjoining lands, which is in dispute and in some degree Held, not to affect the title, and that A. could recover unknown and undefined, either directly by the parties possession. themselves, or through the submission to an award of The substance of these authorities seems to be others, is not an agreement which extends to the title, this: and, therefore, not within the provisions of the statute A parol agreement between adjacent owners of land of frauds." "But where the line is already well to fix a disputed division is valid and binding by way known and established; where it has been recognized of estoppel in those cases where the grant is so indefinite, and acquiesced in by the adjoining owners; and more uncertain, or ambiguous that the true line is not ascerespecially where it is indicated and marked out by tainable therefrom, but in no other. fences or other permanent monuments to which they have claimed and occupied for a sufficient length of time to bar an entry, a parol agreement to change it We now come to consider the remaining branch differs entirely in its effect from that to which I have of this doctrine, namely, the estoppel of the owner before referred, and does extend to the title." A new who has, with knowledge of his rights, sussered antrial was granted.
other to build on his land. Vosburgh v. Teator, 32 N. Y. 561, was an action of This doctrine seems to have arisen in East India trespass involving a disputed division line. The plain-Co. v. Vincent, 2 Atk. 82, A. D. 1740. Here Lord tiff produced evidence that he and his predecessors Chancellor Hardwicke, who generally got things had possessed the locus in quo more than twenty years, about right, said, "there are several instances where but the paper title was not given. The defendant a man has suffered another to go on with building on gave evidence tending to show that the true line was his ground, and not set up a right till afterward, elsewhere, and that the plaintiff's occupation was by when he was all the time cognizant of his right, and special permission. It was also shown that the line the person building had no notice of the other's right, was in dispute in 1846, and that then, as defendant in which the court would oblige the owner of the claimed, an agreement was orally made that a sur ground to permit the person building to enjoy it veyor should run and fix the line, and that the parties quietly and without disturbance.” But this was should abide by it, and put the fence on it. The obiter, for he continues: “But these cases have never plaintiff claimed that it was only one end of the line been extended so far as where the parties have that was in dispute. The surveyor did run and fix treated upon an agreement for building, and the the line, but it was a disputed question of fact whether owner has not come to an absolute agreement.” The he ran the whole line or not. The new line took case under consideration. some land in one place from the defendant, which the In Niven v. Belknap, 2 Johns. 573, it appeared that plaintiff availed himself of. In another place the line N. applied to B. to buy a farm in B.'s possession, and so run would deprive the plaintiff of land, and this he was informed by him that C., who held mortgages objected to, and when the defendant commenced, three executed by B. on the farm to nearly its value, had years after, to move his fence to the new line, plaintiff the disposal of it, and B. went with N. to C., and an brought this action. There was a verdict for plaintiff. agreement was made between N. and C., in presence The court held that it is the policy of the law to per and to the knowledge of B., for the absolute purmit parties to settle and adjust doubtful, uncertain and chase of the farm, and C. therefore deeded it to N., disputed facts between themselves, and, when so set who took possession as owner and made valuable imtled upon a good consideration, not to permit them provements; ten years afterward B. conveyed the afterward to be brought into dispute. That a dis farm to his son, a neighbor of N.; N. filed a bill in puted, indefinite or uncertain boundary line between chancery quia teniet against B. and his son, praying adjoining proprietors may be fixed by parol or arbitra that they might be perpetually enjoined from assertment. But an agreement by parol to establish a new ing their title. The chancellor dismissed the bill, but line, where the boundary is not indefinite or uncer the court of errors reversed his decision, and ordered tain, is void. That the force of such agreement is by a perpetual injunction. way of estoppel. Verdict sustained.
In Wendell v. Van Rensselaer, 1 Johns. Ch. 313, It had been previously held in Terry v. Chandler, where a person having a conveyance of land keeps it
secret for several years, and knowingly suffers third up, but the case turned solely on the ground of persons afterward to purchase parts of the same estoppel. premises from the grantor, who remained in posses In Corkhill v. Landers, 44 Barb. 218, it was held, sion and was the reputed owner, and to expend money that where a boundary line is fixed and settled by on the land without giving any notice of his claim, parol agreement between A. and B., adjoining owners, he will not be permitted afterward to assert his legal and B. afterward, with the knowledge of A., makes title against such innocent and bona fide purchasers. valuable and expensive improvements, without objecIn this case the fraudulent silence continued fourteen tion on the part of A., the latter is estopped from years.
denying that the line thus fixed was not the true In Higinbotham v. Burnet, 5 Johns. Ch. 184, A. D. boundary line. “He who is silent when conscience 1821, E., a soldier entitled to a bounty lot, before the requires him to speak, shall be debarred from speakpatent issued bound himself to deed it to S.; S. ing when conscience requires him to be silent.” assigned the lot, bond, etc., to V., who sold them by Laverty v. Moore was aflirmed in the court of indorsement, and all his right, etc., to C., to whom appeals in 1865 (33 N. Y. 658), and must be regarded he delivered the original bond, patent, etc. Held, as settling this principle. that although for want of words of inheritance the We therefore derive this rule: assignment in law transferred only an estate for life, If the boundaries in a grant are definite, certain and yet, as the intention was to convey a fee, a trust estate unambiguous, and adverse possession has not accrued ; in fee was created, and this court would decree a yet, if the division line between the lands granted and the legal conveyance in fee. Also, that V., having silently lands of one adjoining has been differently fixed and stood by for thirteen years after the death of C., and located by agreement of the respective owners, and the seen his heirs claiming to be owners in fee, and deal real owner silently suffers the other to make improveing with the land as owners, and making valuable ments upon the land thus embraced, on the faith of such improvements, was estopped, and all under him were location; or if, without such agreement, but innocently, estopped, from asserting his legal title.
that other makes such improvements upon the land of In Town v. Needham, 3 Paige, 545, G. and W., two the real owner, and the latter, with knowledge thereof, is brothers, were tenants in common of real estate; G. thus silent, the latter, and all under him, shall be estopagreed to relinquish his interest in exchange for a ped from denying that the line thus fixed is the true line, quantity of medicines and the good will of his broth and from asserting ownership to the land thus acquired. er's business of physician; W. took possession and made improvements, and sold to T., who made valuable improvements. Held, that this was sufficient in
AMERICAN REPORTS AND REPORTERS. equity to take the case out of the statute of frauds,
No. V. and that T. was entitled to a conveyance of G.'s interest, and to a perpetual injunction against a suit George Wythe was the first reporter in this State, which G. seventeen years after his transfer to W. had and published in 1795 a folio volume containing cases instituted to recover the premises.
from 1790 to 1795. Laverty v. Moore, 32 Barb. 347. In 1835 L. and G. In 1798, Bushrod Washington published two volentered into a written agreement by which L. under umes of reports of cases decided in the court of aptook to fill in with earth certain lands, under water, peals, from 1790 to 1796 inclusive. Daniel Call pubowned by G., and in compensation G. covenanted to lished, in 1801-1803, three volumes of decisions of convey to him one-third of the lands in fee. L. went the same court from 1797 to 1803. These were folon with the work, having previously made a survey ed, in 1833, by three more volumes, containing in which he was assisted by T., who owned the scattering cases from 1799 to 1803, the regular series adjoining lands on the south. On such survey T. from 1804 to 1806, and then again scattering cases to placed stakes and made a monument to indicate the 1818. Six decisions of the United States circuit boundary line between him and L., and L. filled in court for Virginia are also contained in the sixth volthe lots to correspond with the stakes and monument. William H. Hening and William Mumford T. was repeatedly on the ground, but made no objec- published in 1809–1811, four volumes of the decisions tion. Held, that the line between the two adjoining of the court of appeals between October, 1806, and owners being thus established and located by the acts October, 1809, and William Mumford continued the and acquiescence of the parties themselves, and L. series in six volumes, from 1810 to 1820. having expended money and labor in making valua Up to this time the reports had been issued as a ble and permanent improvements on the lots, in the private enterprise, without legislative authority or faith and confidence that the line so marked out was sanction; but in 1820 provision was made for the apthe true line, it must be regarded as such, and that pointment, by the court of appeals, of a reporter, who persons claiming title under T. were estopped from was to report such decisions as any one judge might controverting the line as thus established and located. designate, and who was to receive a compensation of The defense of the statute of limitations was not set eighty-three and a third cents for every hundred
pages contained in each copy. By an amendment in In 1802 John Louis Taylor published one volume of 1829, the reporter was directed to secure the copy- the cases from 1799 to 1802, and in 1818 he published right to the commonwealth, and was forbidden to a second volume, containing decisions between the publish more than seven hundred copies.
July term, 1816, and the January term, 1818. In 1805 Under the act of 1820, Francis W. Gilmer was first Duncan Cameron and William Norwood reported in appointed, and reported the cases from April, 1820, to one volume the decisions of the court of conference, June, 1821, in one volume. He was succeeded by between 1800 and 1804, cited as Conference Reports. Peyton Randolph, who reported the decisions from In 1805 the name of this court was changed to "the November, 1821, to December, 1828, in six volumes. supreme court of North Carolina.” Between 1804 and The fifth and sixth volumes contain also the decisions 1819 Archibald D. Murphy published the decisions in of the general court, which had hitherto been pub- three volumes. lished separately. Mr. Randolph was succeeded by The Carolina Law Repository was begun in 1813 Benjamin Watkins Leigh, who reported the decisions and published semi-annually to September, 1816. It of the court of appeals and general court, from 1829 contained, besides miscellaneous articles, reports of to 1841, in twelve volumes.
decisions in the supreme court from the July term, We will here digress from the regular series to 1811, to July term, 1816, inclusive. The work is bound notice the scattering reports that had been heretofore in two volumes and cited as the Carolina Law issued. In 1815, a volume of cases decided in the Repository. From the June term, 1820, to the June general court, commencing in the year 1789 and end- | term, 1826, the decisions of the supreme court were ing in 1814, was published by Judges Brockenborough reported by Francis L. Hawks, in four volumes. and Holmes. A second volume, containing the cases Thomas P. Devereux continued the reports from in the same court, from 1815 to 1826, was published 1826 to 1834, in four volumes, and the same gentlein the latter year by Judge Brockenborough. These man, in connection with William H. Battle, continued two volumes are cited as Virginia Cases. Since 1828, the cases to the June term, 1839, in four volumes. The the decisions of the general court have been published equity cases between 1828 and 1834 were reported in with those of the court of appeals.
two volumes by Mr. Devereux, and between that year To return to the regular series: Mr. Leigh was suc and 1810 by Devereux and Battle, in two volumes. ceeded by Conway Robinson, who reported in two James Iredell reported the law cases between the volumes the decisions between the April term, 1842, June term, 1840, and the August term, 1852, in thirteen and the April term, 1844. The first volume contains volumes, and the equity cases between the same an interesting sketch of the judicial system of Virginia. periods, in eiglit volumes. He was succeeded by Mr. Robinson resigned in 1844, and Peachy R. Grattan Perrin Busbee, who reported in one volume the cases was appointed. His first volume began with the April between the December term, 18.52, and the August term, term, 1844, and his last, so far issued, vol. 19, ends 1853. This volume is called North Carolina Reports with the July term, 1870.
as are all reports subsequently issued. He also reported In 1818, the calendar of the supreme court of appeals one volume of equity cases for the same period. had accumulated to such an extent that the average Hamilton C. Jones followed, and published eight pendency of an appeal was seven years. To remedy volumes containing the decisions at law between 1853 the evil thus occasioned, a special court of appeals and 1862, and the equity decisions up to 1860. The was appointed, similar in nature and power to the next year Patrick Winslow issued one thin volume of commission of appeals of this state. The decisions of law cases and one of equity cases, ending with 1864. this court were reported in two volumes, by John M. During the year 1865 the court was not in session, Patton and Roscoe B. Heath.
owing to the war. In 1866 S. F. Phillips was appointed reporter, and has issued to date three volumes in law
and two in equity. These volumes of law cases are West Virginia became a separate state in 1863. A
numbered in a regular series counting from the first supreme court of appeals was organized, and John
report published in the state, and the last is numbered Marshall Hagan was appointed reporter. He has
64. issued two volumes, commencing with the August
SOUTII CAROLINA. term, 1863, and ending with the January term, 1868.
The earliest reports in this state are the two vol
umes of Elisha Hall Bay, one of the judges of South Francis Xavier Martin published the first volume of Carolina, published in 1809, 1811. The first volume reports in this state. These cases are entitled Notes of contains cases in the superior courts of law from 1783 a few Decisions in the Superior Courts of the State of to 1795 inclusive. The second contains the decisions North Carolina and in the Circuit Courts of the United of the constitutional court on appeal between 1796 States for North Carolina District, and are cited as and 1804. The next in point of time were the four Martin's Reports. The cases in the superior courts, volumes of Chancellor Dessaussure, containing the from 1789 to 1806, were reported by John Haywood decisions of the court of chancery from the revolution in two volumes.
to December, 1813. The decisions of the constitu
tional court between 1812 and 1817 were published 1837. The decisions of the superior court in 1842, in four volumes, usually cited as South Carolina 1843 were reported by the judges in one volume. Reports. In 1820 and 1821 Henry L. Nott and Daniel Up to this time there had been no provision made J. McCord published the decisions of the same court by law for the publication of the decisions of the between 1817 and 1820, and between 1821 and 1823 court, but in 1845 the judges were authorized to apthe decisions were reported by Mr. McCord in two point a reporter for the term of six years, at a salary volumes. In 1824 William Harper, afterward chan of $1,000 a year. James M. Kelly was appointed cellor, reported the decision of the constitutional court under this provision, and published the decisions of in 1823, 1824, in two volumes, and the chancery 1846 and 1847 in three volumes, and, with the assistdecisions in one volume; after that time the cases at ance of Thomas R. R. Cobb, the decisions of 1848. law were continued in the third and fourth volumes Mr. Kelly having resigned, Mr. Cobb was appointed, of McCord's reports, containing cases in the court of and continued the series to 1856 in sixteen volumes. appeals to the April term, 1828; and in the two vol B. Y. Martin was next appointed, and reported the umes of H. Bailey, containing the cases from the May decisions from 1857 to 1860 in ten volumes. G. N. term, 1828, to January, 1832 inclusive, and in the
cceeded, and reported the cases from 1860 to three volumes of W. R. Hill, containing case from 1832 1863 in three volumes. From 1864 to 1866 L. E. to 1837. Mr. Riley also issued a volume of decisions Bleckly was reporter, and issued two volumes. In of 1836 and 1837.
1866 N. J. Hammond, present reporter, was apThe chancery cases during these several periods were pointed, and has reported, thus far, five volumes. reported by the same reporters, as follows: from Jan These reports, beginning with the first volume of Mr. uary, 1825, to May, 1827, by Daniel J. McCord, in Kelly, are entitled “Georgia Reports,” the last of Mr. two volumes; from 1830 to 1831, by H. Bailey, in Hammond being volume forty. one volume; from 1831 to 1832, by J. S. G. Richardson, in one volume; from 1833 to 1837 by Mr. Hill, in two volumes; and from 1836 to 1837, by Mr.
The legislature of this state, in 1828, authorized the Riley in one volume.
supreme court to appoint a reporter, with a salary of From 1837 to 1838 the cases in law were reported $500 a year, and the profits arising from the sale of by C. W. Dudley, reporter, in one volume, and the
his reports, provided he should furnish the state with cases in equity in one volume; from 1838 to 1839, seventy-five copies free of charge. Henry Minor was the law and equity cases were reported by William appointed in 1829, and published a volume containing
the decisions of the court from 1820 to 1826. He was Rice, each in one volume; from 1839 to 1840, the cases were reported by L. Cheves Jr., in one volume
succeeded by George N. Stewart, who reported the
decisions from 1827 to 1831 in three volumes. Mr. law, and one volume equity. McMullen reported
Stewart was succeeded in 1834 by Benjamin F. Porter, both the law and equity cases from 1840 to 1842,
who published, from the manuscript of his predecessor, adding two volumes to the former, and one to the
five volumes of cases decided between the January latter series. R. H. Spears was reporter from 1842 to 1844, and published two volumes of law, and one
term, 1831, and the January term, 1834, cited as
Stewart and Porter's Reports. From 1834 the reports of equity decisions. J. S. G. Richardson succeeded, and published three volumes of law, and two of equity
were continued by Mr. Porter to 1839, in nine volumes.
From 1840 to 1817 the reports were prepared and cases, decided between 1844 and 1847. He was succeeded by James Strobhart, who published five vol reported by the judges in eleven volumes. These
volumes were styled Alabama Reports, new series, umes of law cases, decided between the November
which has been since followed. Volumes 12 to 15, term, 1846, and the May term, 1850, and four volumes of chancery decisions between the same dates. Mr. containing the cases from 1847 to 1849, were reported Strobhart was in time succeeded by Mr. Richardson, by J. J. Osmond; volumes 10 to 18, by N. W. Cockis;
volumes 19 to 21, by J. W. Shephard, being the dewho has reported the law decisions down to 1868, in
cisions of 1851, 1852; volumes 22 to 24, containing the twelve volumes, and the chancery decisions in eleven
decisions of 1853, 1854, by the judges; volumes 25 to 41, volumes.
by J. W. Shephard, bring the cases down to 1868; Thomas U. P. Charlton, judge of the superior court,
volume 42, by John L. C. Denver; and volume 43, was the first reporter in this state, and published in
the last issued, by Thomas G. Jones. 1824 the decisions of that court prior to 1810. In 1837
In 1864 John W. Shephard issued a volume of George M. Dudley published the decisions of the
select cases, decided in 1861-1863 by the supreme same court from the July term, 1831, to July, 1833,
court. This volume is cited as Alabama Select Cases, inclusive.
In 1838 Robert M. Charlton published in one volume the decisions made in the superior court of
Judge William Leigh, one of the most eminent jurists
of Virginia during the last forty years, died in the the eastern district of Georgia, and in the middle cir
county of Mecklenburg, in that State, on the 19th ult., cuit, from the January term, 1811, to the July term, at the age of eighty-eight.