Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-04-08
vs.. Dsvsll and Others.

| This was an action of ejectment brought by VII
liams, to recover tract of land lying in Shelby
county Verdict and judgment were for the de
| PENDANTS.
The plaintiffs title is grant issued to him on the
LIST Of February 1851, upon an entry made on the
27th Of September, 1919.
The defendants claim under an entry of 200 acres
made by George Ford and Wilson Sanderlin Of the
same land; the original certificate of the survey OF
which, dated the I'D Of November, 1888. was sub
mitted as evidence to the jury. The plaintiffs grant
includes SO acres of the land embraced by said en-
try under which defendants claim to recover which
this action brought
1t is not shown that in point of fact grant ever
issued on the entry to Ford and Sanderlin But it is
proved, that about the year lS3l-sOme twenty-six
years before the commencement of the present &C
tion-Geo Ford entered into possession of said land
having purchased an improvement thereon from one
Stuart who was previously in possession; and that
Ford and those holding by purchase under him,
have had the exclusive, uninterrupted, and adverse
possession Of said land claiming the same to the ey
tent of the boundaries of said entry from 1881 I'D
to the commencement Of this sutton the 18th of
June, 1857.
Upon this state of facts his Honor instructed the
jury that they might presume grant to defendants
commensurate with the boundaries of said entry.
This instruction Is supposed TO be erroneous. The
argument is, that the presumption Of a grant was
absolutely repealed, for the reason that until after
the passage Of the act Of Congress of 1871 no grant
could, by law, have issued for this land, over the
entry made by Ford and Sanderlin in 1888 that the
legal title was in the United States up to 1871 when
Tennessee was first empowered to dispose of it.
This position is incorrect There was a mode
known to the law by which grant might have been
obtained for this land long prior to the year 1871
Ever since the act of 1919 ch. l. at least the land
might have been appropriated, and grant obtained
therefor, by virtue of a North Carolina land war
rant This was familiar method of acquiring title
TO lgDdS SOuth and west of the congressional reser
walton line.
It's not indispensable. in order to lay proper
foundation for the legal presumption Of a grant, to
establish the probability Of the fact that in reality
grant ever issued. 1t will afford sufficient ground
for the presumption to show that by legal possbi-
ty, a grant might have been issued. And this APP
pearing, itmay be assumed in the absence Of cir
cumstances repelling such conclusion, that all that
might lawfully have been done to perfect the legal
title was in fact done, and in the form prescribed
by law.
But tits supposed that this principle cannot avail
the defendants IN the present case; because. as IS
alleged, the entry of Ford and Sanderlin was based
upon an occupant right and not upon a North Caro-
ina warrant How this matter is, does not certain
v appear from the recOrd-the entry itself not be
ng settorth in the bill Of exceptions. All that we
have, Is the certificate of survey, which seems to /
have been admitted as evidence instead of the entry
lnu Llat merely states that twas made bv virtue
Of the occupant law This is bv no means CON
elusive Of the fact assumed. 1t does not negative
he possibility OF an appropriation by a different (
method. A location under the occupant law. youl5 .
lot preclude the party from afterwards aDnrooriot
ag the same land ly warrant"
To destroy the foundation of the presumption. if
hOuld appear, that the issuance of a grant in The
-Yen case, was a legal impOssibility. The contrary
this we have seen, is established in the present
Gse.
No objection can now be urged, that the entry