Dunham v. Parker

1 Tenn. 245

• Court: Tennessee Superior Court for Law and Equity
• Decided: September 6, 1807
• Status: Published

Opinion

Joseph Dunham, by his attorney, complains of Benjamin C. Parker, in custody of the sheriff, c, in a plea of trespass on the case, for this, that whereas a certain John Hacket, on the 28th day of September, 1787, obtained a grant from the State of North Carolina, agreeably to the provisions of the Act of the General Assembly in such cases made and provided, for the quantity of eight hundred acres of land, on the north side of Clinch River, including the place called Dunham's Bottom, now owned and possessed by said defendant, bounded as follows; to wit: Beginning at two Sycamores, corner of Stockley Donelson's one-thousand acre survey; thence down the river, including the several meanders, to a stake; thence north, sixty degrees east, to a conditional line between said Hacket and Donelson, three hundred and one poles to the beginning; which said tract of land, by deed of conveyance duly proved and recorded, was afterwards conveyed by said John Hacket to the said plaintiff, for the sum of one thousand dollars to him paid; in consequence of which transfer, and of said grant duly issued by the State of North Carolina to John Hacket, said plaintiff afterwards, on the 1st day of January, in the year 1794, at ___ to wit, in the district aforesaid, peaceably entered on, and obtained possession of said tract of land, and from thenceforward greatly improved the same by clearing land, building houses, planting orchards, building fences; stables, barns, c.; that is to say, he cleared and enclosed under good fence, the quantity of seventy-two acres, at a great expense, of the value of ten dollars per acre, and converted a large quantity of the same into meadow ground at a great expense, of the value of ten dollars per acre; he planted and raised a large quantity of fruit-trees, to wit, two hundred, consisting of apple-trees and peach-trees, of the value of one Hundred dollars; he also built and erected on said tract of land six houses fit and commodious for habitation, at a very great expense, of the value of six hundred dollars, and also built three corn-cribs of the value of two hundred dollars: all of which improvements as before mentioned, are of the value of one thousand eight hundred and seventy dollars; and after the said improvements were so made as aforesaid, and the said plaintiff in peaceable possession of the same, at ___ to wit, the district aforesaid, and the said defendant afterwards by a decree of the honorable Court of Equity for the State aforesaid, in the district of Hamilton, on the ___ Monday of ___ in the year ___ procured the title aforesaid, which said plaintiff had obtained to said tract of land, to be decreed null and void, and that the title of said land should be and exist in said defendant, divested out of said plaintiff, and the said plaintiff was decreed and enforced to deliver possession of the same to said defendant, and that said plaintiff was dispossessed, and said defendant put in possession of the same, contrary to the consent of said plaintiff, on the 1st day of January, 1805, at to wit, in the district aforesaid, the improvements aforesaid, of the value aforesaid, on said tract of land of which he was so dispossessed contrary to his will and consent, existing and unpaid for by said defendant. In consideration of which premises, and of the acts of the General Assembly in such case made and provided, said defendant became liable and bound to pay said plaintiff said sum of one thousand eight hundred and seventy dollars, the value of said improvements, and being so liable, and in consideration thereof, afterwards, to wit, on the day and year last aforesaid, at ___ to wit, ___ in the district aforesaid, said defendant undertook and faithfully promised to said plaintiff, to pay him the said sum of money whensoever he should be required.

Nevertheless said plaintiff saith that said defendant, not mindful of his said promise and undertaking so by him made as aforesaid, but contriving and intending to deceive and defraud said plaintiff in this behalf, hath not paid him said sum of one thousand eight hundred and seventy dollars, although to do the same he was requested, afterwards, to wit, on the ___ day of ___ 1805, at ___ to wit, in the district aforesaid, but to pay the same, or any part thereof, hath hitherto wholly failed and refused, and to pay the same doth still refuse, wherefore said plaintiff saith he is injured two thousand dollars, and therefore he sues, c. TRIMBLE, for plaintiff.

And the defendant conies, and defends the wrong, c, and saith the said plaintiff his said action ought not to have and maintain, because he saith, the declaration aforesaid in manner and form aforesaid, and the matters and things therein contained are not good and sufficient in law for the said plaintiff to maintain his said action aforesaid, had against this defendant; to which said declaration he has no need, nor is he by the law of the land bound to make any other or further answer, which he is ready to verify; wherefore for want of a sufficient declaration in this behalf he prays judgment. c., and for causes of demurrer in this behalf the said defendant, according to the form of the statute in such cases made and provided, sets down, and shows the following causes: —

1st. Because the said declaration doth not set out and show the time when, or place where, the deed from John Hacket to the said plaintiff was made, nor is there any profert made of said deed (if any ever was made) so that the Court might judge whether the same was bottomed on the original grant to John Hacket or not.

2d. Because the said declaration doth not show that the said Joseph entered and obtained peaceable possession by virtue of said deed of conveyance bottomed on a grant.

3d. Because said declaration doth not show that the said plaintiff was dispossessed by due course of law, or how in particular he was dispossessed, or who it was that dispossessed him.

4th. Because the said declaration doth not set down or show to whose use the said possession (if any there was) was made.

5th. Nor does the said declaration set forth or show any country or place in certain, where the said deed of conveyance was made or where the dispossession was committed, where the land of which he was dispossessed lies, or where the cause of action accrued, so that it is impossible for the said defendant to traverse, or deny any fact in said declaration, inducing the action.

6th. Nor does said declaration set forth and show that the said defendant had notice of the value of said improvements, whereby to put it in his power to pay for them.

7th. And because the said defendant showeth that the cause of action (if any there is) is wholly uncertain, and the improvements (if any there were) must from the nature of the case be uncertain, so that it was impossible for the defendant to know what was due, thereby for the law to raise an implied assumpsit to pay, and for that the declaration is unsubstantial, and wants both form and substance. P. M. MILLER, attorney for defendant.

And the plaintiff saith that the declaration aforesaid, and the matter therein contained, are good and sufficient in law to enable him to have and maintain his action aforesaid, and inasmuch as the said defendant hath in no manner answered the same he prays judgment and his damages,c. The declaration should have made a profert of the deed from Hacket, so that it might have been seen and judged whether it were agreeable to law or not; or it should have stated the county where it was recorded, so as to give the defendant information where to find it, and for this cause the demurrer was allowed; upon motion, however, the declaration was amended upon payment of costs.

In support of the demurrer was cited, as to the first cause, 7 Bac. Ab. 48, 50; 5 Bac. Ab. 432. As to the second, Roulst. ed. T. L. 151, 271; 6 Bac. 384, 392. The same authorities as to the third, fourth, and fifth causes Sixth point, 1 Wentworth, 158, 200. The Court, in their opinion, adverted to 10th Co. 93; Acts, 1786, c. 14. § 3, Ird. 584.