This was a caveat brought in the County Court of Williamson County, in which a verdict and judgment was rendered for the plaintiff. From this judgment, the defendant, Shute, appealed to the Circuit Court of the County of Williamson; from which, by the consent of parties, it was removed to this Court.
The following facts were agreed: —
1. That the plaintiff made an entry and survey as is set forth in his caveat, which entry is sufficiently special, and describes the land included in his survey.
2. That Henry Cook was not seated on, nor in actual possession of, the land, on or at any time before the 1st day of May, 1806.
3. That the defendant Thomas, on the 20th day of August, in the year 1807, made an entry in the office of the principal surveyor of the first district, in the following words, to wit: "warrant No. 159, location 292, 20th August 1807, Thomas Shute assignee of John Herritage 500 acres, a part of said warrant, between West Harpeth and Big Harpeth, joining a tract granted to William Stewart, for six hundred and forty acres, on the south boundary, and a tract of 640 acres granted to William Collingsworth, on the west, running from thence west, with Stewart's south boundary line, 320 poles; thence south and west with the lines of the other survey for quantity; sect. 8, range 13." That a survey was made of 231¼ acres thereon, as is set forth in the caveat; that the entry is sufficiently special, and describes the land included in the survey.
A jury being empanelled to final facts not agreed upon found the following: —
"That James Wright was, some time before May, 1806, placed on the land in controversy by Cook; that Wright rented part, and was employed by Cook to clear other land there; and that Wright being placed there, was seated on; and in actual possession of the land at and before the 1st day of May, 1806, and so continued until the month of February, 1807; that previous to the date of Cook's entry, to wit:
1807, Wright delivered possession of the land and improvement to Cook, and verbally assigned and transferred all his right of occupancy or preference in entering and obtaining a grant for the land to him; and afterwards, on the 10th day of October in said year, Wright, in consideration, and in completion of said agreement, reduced the same to writing and signed it; that a survey made on the entry, according to location, would include the improvement and place where Wright was seated at and before the 1st day of May, 1806, as near the centre of a square as the lines of land, which had been before granted would permit.
That Cook, at the time of making his entry, was not seated on, or in actual possession of the land described
in the entry; that at the time of making Cook's entry one William J. Boyd, was in possession of all the land described therein, claiming the same as purchaser from Cook."
Cook's entry was in the following words: "Warrant 2,981, location 222, Henry Cook, assignee of Thomas Dillon, assignee of Elias Dobson, enters two hundred acres of land, his occupant claim, beginning at a breach in William Stewart's south boundary line, 7 poles east of the said Stewart's south-west corner; thence south two degrees east, along William Montgomery's line 80 poles to Samuel Moore's line; thence east 198 poles; thence south and east for complement, to include his improvement in the centre of a square, as near as old lines will admit; lying in the 13th range and 8th section, entered the 29th day of August, 1807."
Cooke, for the plaintiff. It will be contended, 1 presume, that the entry of Cook is void, because, when he made it, no written assignment of the right of occupancy had been made by Wright. There can be no dispute as to the power of assigning such claims; and then the question will be, whether, under our statute of frauds and perjuries, declaring that all contracts for the sale of lands shall be void unless reduced to writing, Cook had derived any title to the land in controversy before the written assignment? It appears from the facts in the cause that the assignment verbally from Wright to Cook was made on the 29th day of August, 1807; and that, on the same day, Cook made his entry; but that the agreement was not reduced to writing until the 10th day of October following. Now, if no right accrued to Cook until the 10th day of October, I am willing to admit that his entry is void, as being made at a time long anterior to the period when he was authorized to do so. But waiving, for the present, any discussion on the application of the statute of frauds and perjuries to a transfer of a mere right of occupancy, and waiving, also, any discussion on the right of Shute to avail himself of it, if it did, I shall proceed to show that this case, upon the general principles
of equity, is not within the statute; first, premising that a caveat is an equitable process, and subject to the same rules. 3 Call 301. The statute of frauds was made to prevent imposition, and not to encourage it. Its object, therefore, ought not to be perverted by furthering the practice of frauds in any shape whatever. In all countries, landed estates have been held of much more importance and consequence than personal property. In order, therefore, to prevent men from hastily and unguardedly transferring their title to real estate, the Legislature enacted that certain forms and solemnities should be adopted. These forms were not intended as absolute requisites, but only as evidences of the deliberation with which the thing was done. Upon this principle it has been decided, both in England and America, that there may exist certain cases wherein courts of equity, proceeding upon the equitable principle of considering that done which ought to have been done, have decreed specific performances of contracts with respect to landed property, although there had been no agreement in writing. And, indeed, it has been determined by Mr. Justice Buller, in one case, that a court of law, where the case is regularly brought before it, will proceed upon the same principle. Rob. on Frauds, 131. But whether a court of law is clothed with any such authority, it is not now necessary to inquire, as there is no doubt about the power of a court of equity. It has been determined that where there is a part performance of the contract, as a payment of the purchase-money, delivering possession to the purchaser, or making valuable improvements upon the land, although there has been no written agreement, a Court of Chancery will decree a specific performance. Rob. on Frauds, 131; 1 Fon. 176 to 190; 1 Pow. Con. 295 to 299; 2 Vern. 455; 2 N. Y. Cases in Error, 109; 1 Bro. Chy. 417.
I shall contend, however, that in this case Shute can not avail himself of the objection if it were good. He is a third person, who can neither be benefited nor prejudiced by any transaction between Wright and Cook. He therefore can not stand in the situation
of Wright, nor of the purchaser from him; and however Wright himself, or a person setting up title under him, might object to the verbal assignment to Cook, yet this is a privilege which does not devolve upon Shute, because his title was not at all affected by it. Besides, the statute of frauds and perjuries only applies to already appropriated land, and not to a mere right of occupancy.
Dickinson, for defendant.
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This was a caveat brought in the County Court of Williamson County, in which a verdict and judgment was rendered for the plaintiff. From this judgment, the defendant, Shute, appealed to the Circuit Court of the County of Williamson; from which, by the consent of parties, it was removed to this Court.
The following facts were agreed: —
1. That the plaintiff made an entry and survey as is set forth in his caveat, which entry is sufficiently special, and describes the land included in his survey.
2. That Henry Cook was not seated on, nor in actual possession of, the land, on or at any time before the 1st day of May, 1806.
3. That the defendant Thomas, on the 20th day of August, in the year 1807, made an entry in the office of the principal surveyor of the first district, in the following words, to wit: "warrant No. 159, location 292, 20th August 1807, Thomas Shute assignee of John Herritage 500 acres, a part of said warrant, between West Harpeth and Big Harpeth, joining a tract granted to William Stewart, for six hundred and forty acres, on the south boundary, and a tract of 640 acres granted to William Collingsworth, on the west, running from thence west, with Stewart's south boundary line, 320 poles; thence south and west with the lines of the other survey for quantity; sect. 8, range 13." That a survey was made of 231¼ acres thereon, as is set forth in the caveat; that the entry is sufficiently special, and describes the land included in the survey.
A jury being empanelled to final facts not agreed upon found the following: —
"That James Wright was, some time before May, 1806, placed on the land in controversy by Cook; that Wright rented part, and was employed by Cook to clear other land there; and that Wright being placed there, was seated on; and in actual possession of the land at and before the 1st day of May, 1806, and so continued until the month of February, 1807; that previous to the date of Cook's entry, to wit:
1807, Wright delivered possession of the land and improvement to Cook, and verbally assigned and transferred all his right of occupancy or preference in entering and obtaining a grant for the land to him; and afterwards, on the 10th day of October in said year, Wright, in consideration, and in completion of said agreement, reduced the same to writing and signed it; that a survey made on the entry, according to location, would include the improvement and place where Wright was seated at and before the 1st day of May, 1806, as near the centre of a square as the lines of land, which had been before granted would permit.
That Cook, at the time of making his entry, was not seated on, or in actual possession of the land described
in the entry; that at the time of making Cook's entry one William J. Boyd, was in possession of all the land described therein, claiming the same as purchaser from Cook."
Cook's entry was in the following words: "Warrant 2,981, location 222, Henry Cook, assignee of Thomas Dillon, assignee of Elias Dobson, enters two hundred acres of land, his occupant claim, beginning at a breach in William Stewart's south boundary line, 7 poles east of the said Stewart's south-west corner; thence south two degrees east, along William Montgomery's line 80 poles to Samuel Moore's line; thence east 198 poles; thence south and east for complement, to include his improvement in the centre of a square, as near as old lines will admit; lying in the 13th range and 8th section, entered the 29th day of August, 1807."
Cooke, for the plaintiff. It will be contended, 1 presume, that the entry of Cook is void, because, when he made it, no written assignment of the right of occupancy had been made by Wright. There can be no dispute as to the power of assigning such claims; and then the question will be, whether, under our statute of frauds and perjuries, declaring that all contracts for the sale of lands shall be void unless reduced to writing, Cook had derived any title to the land in controversy before the written assignment? It appears from the facts in the cause that the assignment verbally from Wright to Cook was made on the 29th day of August, 1807; and that, on the same day, Cook made his entry; but that the agreement was not reduced to writing until the 10th day of October following. Now, if no right accrued to Cook until the 10th day of October, I am willing to admit that his entry is void, as being made at a time long anterior to the period when he was authorized to do so. But waiving, for the present, any discussion on the application of the statute of frauds and perjuries to a transfer of a mere right of occupancy, and waiving, also, any discussion on the right of Shute to avail himself of it, if it did, I shall proceed to show that this case, upon the general principles
of equity, is not within the statute; first, premising that a caveat is an equitable process, and subject to the same rules. 3 Call 301. The statute of frauds was made to prevent imposition, and not to encourage it. Its object, therefore, ought not to be perverted by furthering the practice of frauds in any shape whatever. In all countries, landed estates have been held of much more importance and consequence than personal property. In order, therefore, to prevent men from hastily and unguardedly transferring their title to real estate, the Legislature enacted that certain forms and solemnities should be adopted. These forms were not intended as absolute requisites, but only as evidences of the deliberation with which the thing was done. Upon this principle it has been decided, both in England and America, that there may exist certain cases wherein courts of equity, proceeding upon the equitable principle of considering that done which ought to have been done, have decreed specific performances of contracts with respect to landed property, although there had been no agreement in writing. And, indeed, it has been determined by Mr. Justice Buller, in one case, that a court of law, where the case is regularly brought before it, will proceed upon the same principle. Rob. on Frauds, 131. But whether a court of law is clothed with any such authority, it is not now necessary to inquire, as there is no doubt about the power of a court of equity. It has been determined that where there is a part performance of the contract, as a payment of the purchase-money, delivering possession to the purchaser, or making valuable improvements upon the land, although there has been no written agreement, a Court of Chancery will decree a specific performance. Rob. on Frauds, 131; 1 Fon. 176 to 190; 1 Pow. Con. 295 to 299; 2 Vern. 455; 2 N. Y. Cases in Error, 109; 1 Bro. Chy. 417.
I shall contend, however, that in this case Shute can not avail himself of the objection if it were good. He is a third person, who can neither be benefited nor prejudiced by any transaction between Wright and Cook. He therefore can not stand in the situation
of Wright, nor of the purchaser from him; and however Wright himself, or a person setting up title under him, might object to the verbal assignment to Cook, yet this is a privilege which does not devolve upon Shute, because his title was not at all affected by it. Besides, the statute of frauds and perjuries only applies to already appropriated land, and not to a mere right of occupancy.
Dickinson, for defendant. The act of Assembly under which the plaintiff claims the land in controversy provides: "That any person or persons who may have seated him, or themselves, on any vacant and unappropriated land within the jurisdiction of this State, and who were in actual possession of the same at and before the first day of May, 1806, or any person who may be in possession of the same, as assignee as aforesaid, such person or persons shall be entitled to a preference of entering for three months after the first Monday in June next, upon any good and valid warrant." Act of 1806, ch. 3, sec. 2. Wright, beng in possession at and before the 1st day of June, 1806, was entitled to his right of occupancy, if he had chosen, at any time while he had possession, to avail himself of it. The act authorizing a preference to be given to the assignee, as well as the original occupant, evidently intended to confer such extraordinary privileges alone where either the first occupant or his assignee were in actual possession at the time the entry was made. Possession in the first occupant on the 1st of May, 1806, could not entitle him to the land on which he was then seated, unless either he or his assignee retained possession until the entry was made; for the law never contemplated that a man could make a valid entry as an occupant after he had abandoned the possession of the premises. Cook had neither possession on the 1st day of May, 1806, nor at the time the entry was made; and, indeed, the facts do not show that he ever had possession at all. It will be also observed that, at the time Cook made his entry, William J. Boyd was seated on the land; and if any person had the right of occupancy it was he and not Cook.
The occupant law of 1806 only secured the right of preference to those who were seated on the land in the preceding May, provided they made their entries within three months from the first Monday in June, 1807. The first Monday in June was the first day of the month; and Cook's entry was made on the 29th day of the August following. The right of preference, then, as I contend, expired on the 23d day of August, so that the time had elapsed before the entry was made. It is well settled by the common law — and which has never been repealed by any act of this State — that wherever a statute mentions a month, lunar months, consisting of twenty-eight days, and not calendar months, are intended. If, in ordinary transactions, six months or twelve months are mentioned, in contemplation of law, the month is to be computed at twenty-eight days. If a twelvemonth is mentioned, the law contemplates it as twelve calendar months, because it evidently means one complete solar revolution. 2 Blac. Com. 141.
It is unnecessary to answer the argument about the statute of frauds and perjuries, because the defendant does not now seek to avail himself of it.
Haywood, in reply. — We must be excused for producing so many authorities, and taking up so much time of the Court, upon a point which Mr. Dickinson has abandoned. Neither the gentleman with whom I am associated nor myself was concerned in the inferior court. But we had been informed that the point to which he directed his arguments was the only one relied upon by Shute in the County Court. I shall, therefore, trouble the Court with no remarks upon that subject, as Mr. Dickinson has very properly abandoned it, but proceed directly to the points which he has argued.
The English decisions as to the computation of time apply, at this day, almost exclusively to the canon, or ecclesiastical law. The commercial transactions of that country, and the private dealings between man and man, are governed entirely by a calendar, and not a lunar, computation. The reason, originally, why calculations were made by lunar months was
because it was so settled in the ecclesiastical courts; which thereby imposed a public opinion that it was the general mode of computing time. Its being a matter of public belief and common understanding that such was the correct rule occasioned that method of computation to be incorporated into the decisions of the courts. Barnes, 324; 2 Eq. Ca.; 1 Esp. Rep. 186. The practice of this country has been, universally, to calculate by calendar months; and I venture to say, that no statute of Tennessee, wherein a month is mentioned contemplates any other mode. The Act of 1801, commonly called the Court Law, provides that rules shall be held in the Clerk's office monthly; of course, calendar months were intended. The Act of 1805, ch. 16, sec. 2, makes it necessary that all conveyances, c., shall be recorded within nine months after the execution of the deed. No man ever supposed that the Act meant lunar months, nor did the Legislature so intend. Another act gives the owner of land, sold for the taxes, twelve months to redeem it. Under this law, it has happened in nine cases out of ten that the land never was redeemed until the last day allowed by law, upon a calendar calculation; and the reason for this is obvious; because the common understanding of the people of this country, as well with the legislator as the common citizen, has been to pursue this mode of computation.
Upon the other point, admitting that it is necessary, that either the original occupant or his assignee ought to have been in possession of the land at the time the entry was made, yet Cook will not be thereby injured. The possession of Boyd was the possession of Cook. The facts found expressly allege that Boyd was seated upon the land, claiming it as a purchaser from the plaintiff. The truth no doubt is, and no other inference can be drawn from the facts found, that Cook sold the land to Boyd, and put him in possession of it, with the intention of making him a legal title so soon as he procured one himself. Boyd was, therefore, nothing more than a tenant at will; and the possession of a tenant at will has always been considered to be the possession of the
lessor. It has been settled by the determinations of this country, that if A sells to B a tract of land, to which A has not then a legal title, and delivers possession to B, the latter is only a tenant at will. In this case, Cook, when he made the sale, had no complete legal title. Until, therefore, he could get his equitable title perfected into a legal one, Boyd was only his tenant at will. If Boyd, as being the person actually in possession, came forward himself, and disputed Cook's right of occupancy, there might be some pretext for opposing his claim. But it seems that Boyd is perfectly satisfied, and makes no kind of objection to the plaintiff's title. And even if there were a slip, it is not the province of Shute to object to it; because it neither benefits nor injures his claim. But I contend that it was not necessary for any person to have been in actual possession at the time the entry was made. The Act of 1806 evidently intended to place the assignee in the situation of the original occupant; and it nowhere requires that the original occupant should be in actual possession, other than on the 1st of May, 1806. It being, therefore, established in this case that Wright had such possession, the claim of the plaintiff is thereby rendered complete and legal.
In this cause only two points have been relied on by the defendant's counsel, to resist the preference claimed by the plaintiff.
1. It is said that the preference, which he might once have had, expired before he made his entry; because the term three months used in the Act, means three lunar and not calendar months.
2. That when he made his entry, he had not possession of the land; and that, to secure a preference under the act of Assembly, there must not only have been a possession on the 1st day of May, 1808, but a possession continued from that time until the entry was made, which is not the case here.
1. We believe the term "three months" means three calendar and not three lunar months. It must be the duty of the Court to affix the same idea to these
words which they believe the Legislature, who used them, intended to communicate. It is believed that when the term "month" is used in this country a calendar and not a lunar month is intended, and we feel satisfied that the same intention was in the view of the Legislature when using these expressions.
2. The facts agreed and found by the jury make this case: That Wright was in possession of the land on the 1st day of May, 1806; that afterwards, and before Cook's entry was made, he sold his right of preference to Cook; that when the entry was made Boyd was in possession, claiming as a purchaser under Cook.
It seems to us clear that Wright once had a preference, to enter this land; that he parted with his preference, and the right became vested in Cook; and the only difficulty is created by Boyd having possession in fact when the entry was made. As Boyd was in possession with Cook's consent and permission, and as the facts do not show that Cook had assigned his interest to Boyd, but only that Boyd was in possession, claiming by purchase under Cook, we have no hesitation in viewing the possession of Boyd as the possession of Cook, within the meaning of the act of Assembly; and the more especially as Boyd himself has not, as far as we know, set up any claim to the preference.
We are, therefore, of opinion that the plaintiff has a right to obtain a grant for the land to which he claims the preference in his caveat.