Polk v. Windel

The supreme court of the United States has determined that the state of North Carolina had no power, after the cession, to issue grants for lands within the ceded territory, unless where some incipient right previously existed. In this cause, then, it would be competent to inquire whether there was an entry previous to the cession, or whether the warrant was a forgery. But this must be ascertained by legal evidence; what would be competent evidence on a scire facias by the state to repeal a grant, or in equity, might be receivable here. But the evidence offered, in my opinion, is neither relevant or competent. Suppose this was an indictment for the alleged forgery. The original books, if under the control of the court, ought to be produced. They might be produced on a subpoena duces tecum to the secretary. It is true, as has been argued, that every forgery includes a fraud, but it is not true e converso. There are but a few excepted cases in which we can go. beyond the grant for the purpose of avoiding it. And where forgery is recognized as one, it is that offense, technically speaking. To infer it from the fact that different warrants were to be found in the secretary’s office of the same number would be dangerous in the extreme; that he would not permit the jury to-infer it. and considering the practice of making entries in Carter’s or Washington county entry taker’s office, no such inference could be drawn from the copies proposed, if received.

I concur with Judge TODD in the rejection of this evidence. I do not think it relevant. It might be different if evidence were first introduced to show that the warrants were not in the-handwriting of the entry taker; irreparable-injury might result to society if the principle-were once established, that because two warrants were of the same number, the inference might be drawn that one of them was-therefore a forgery.

The plaintiff’s counsel then offered to read, in evidence a certified copy of part of a paper, abstract, or book referred to in the twelfth section of the act of 1S07, c. 2, so far as respects the numbers of warrants on which Sevier’s grant issued. The abstract (that being the most proper appellation of' such a paper) is stated in that section as a book procured from the office of the secretary of state of the United States. It was alleged that agreeably to that abstract there-was but one entry for each of those numbers, and if admitted would show by other evidence that Sevier's grant could not have issued on the entries referred to in that paper. But the court rejected the evidence because the copy produced was only of a part of that abstract.

Parol proof was then offered to show circumstances respecting the loss of the entry books of Washington county about the year-1800, and also to establish the proposition, that no such entries as those referred to in Sevier's grant ever were on those books.' Several other attempts were made to produce-parol proof to various points as stated, all of which evidence was offered with a view to annul or destroy the validity of Sevier’s grant.

The question now-presented to the view of the court is, whether parol evidence shall be received to prove that there were no such entries in the entry taker’s-books as those by virtue of which the warrants in question purport to have been issued. The original books are admitted to be lost. It appears, as well from the law as the evidence-offered which has been rejected, that an abstract of these books was taken. The extract of that abstract has been rejected because it was not a complete copy. The object is to prove-that no such entries ever existed on the-books. How can this appear when neither the books nor a complete copy of them are-produced? There is better evidence of the fact attempted to be proved. The abstract is certainly better evidence, and therefore-parol testimony must be rejected.

An attempt is-now made to prove by parol evidence that certain entries which are presumed to exist *942never had an existence. This, in my opinion, cannot be clone. If, by the ravages of war, fire, or other casualty, the entry books, which are considered as public records, ¡should be destroyed, and parol evidence could be received to show either the contents of the entries or that none such ever existed, with a view of destroying the validity of a state grant or patent, what would be the •situation of society? Whose rights would be ■safe? The precedent would be of most dangerous tendency, and ought not to be established. This evidence muht be rejected.

The jury found a verdict for the defendant. In the course of the trial the counsel for the •plaintiff filed a bill of exceptions to the opinion of the court, with a view, as stated, of ■carrying up the cause by writ of error to the •supreme court of the United States.