At the June term, 1794, the following decree was pronounced:
Br the Court.
In deciding on this case it seems necessary to inquire: had the complainants the first, just, and legal claim to the land in contest ?
The claim of the complainants depends upon an entry which is sufficiently special, and which was known to the defendants when they made their survey.
The claim of the defendants is of older date, as well as superior in dignity, but the defendants have not shown that this land is included in their location with the commissioners, or their entry with the surveyor, and it seems to be confessed by them that it is not included, they only plead that they included this land in their purvey by the express agreement of the complainant Owens, with, the defendant Wilson. Therefore the second question will be, was there such an agreement entered into between Owens and Wilson as will bind the complainants, and justify the manner in which the survey of the defendants has been made?
The defendant Wilson, in his answer, swears positively to the agreement which is pleaded, and that such an agreement was made, is confirmed by the testimony of Daniel Sullivan, but as far [165]*165as a negative can be proved, it is contradicted by a variety of other testimony, and concomitant circumstances.
Therefore if it appeared that the decision of the cause materially depended on the existence of this agreement, the fact ought yet to be tried by a jury, which would be more competent to decide on the credibility of 'the testimony in the case, and the strength of the circumstances attending it. But if the existence of this agreement were indubitably fixed, it would not be binding if the inducements made use of to procure it were fictitious and fraudulent.
It appears that the bounds of the defendant Pendergrass’ claim had before been fixed and approved of by her, and the complainants had made their entry to adjoin those bounds; when the defendant Wilson proposed to depart from those bounds, and to extend the claim of the defendants on the entry of the complainants, Owens warmly opposed it.
Then Wilson urged that the defendants had the eldest and best claim, and that they were first entitled to get their complement, that they had a right to run on the entry of the complainants and would run on it, and that after much conversation on the subject, and Owens still persisting in his opposition to the removal proposed, Wilson declared that he would extend the claim of the defendants on the entry of the complainants, and proceeded to make a survey thereon accordingly, on which they have obtained a grant.
It not being shown that these allegations were founded in truth or that the defendants had a right thus to survey, or that there was any good consideration to induce Owens to agree that the survey should be so made, it ought to be presumed that there was no Iona fide agreement entered into between Owens and Wilson, and Owens being an illiterate man and a stranger, that any agreement which he made was extracted by misrepresentation, and an apprehension that his withholding his consent could only involve him in a contest with a superior claim.
It has not been fully proven, that Daniel Sullivan assisted in accomplishing this deception, though strong circumstances appear to support the charge.
It is sufficient to give this court jurisdiction, that the complainants have charged and proven fraud on the defendant' Wilson, neither can there be a doubt that the other defendant should be subjected to the same consequences of the unjustifiable measures [166]*166taken by her husband, to procure an advantage' for her, as well as for himself.
Whereupon it is decreed and ordered, that the defendants do, on or before the 25th day of December next, convey unto the complainants by deed in fee simple with special warranty, all the lands contained in the entry made in the name of the said complainants and Jonathan Smith, for 1,334 acres of land, and which is contained in the grant or grants of the defendants, obtained on the settlement and pre-emption rights of the defendant Margaret Pendergrass, now Margaret Wilson.
It is further decreed and ordered, that the complainants do, on or before the said 25th day of December, convey unto the defendant, Margaret Pendergrass, now Margaret Wilson, by deed in fee simple with special warranty, an equal quantity of the land to that above decreed to be conveyed by the defendants to the complainants contained in the said defendants’ grant, obtained on the said entry, and not included in the bounds specified by the said entry, if so much shall remain, after Aquilla Whitaker has got. the quantity and the part thereof, to which he is entitled by a decree of this court, made and pronounced on the 31st day of May, 1794, to be laid off from the south or north end of the said remainder as the defendants shall choose.
It is further decreed, and ordered, that Jonathan Boone, deputy surveyor of Shelby county, do go on the lands in controversy, and survey and lay off the' said entry, made in the name of the complainants and Jonathan Smith, in the following manner, to-wit:
Beginning at the walnut, sugar tree and hoop-wood, fixed by Ni.cholas Merewether, for the lower corner of Margaret Pendergrass’ settlement and pre-emption on Brashear’s creek, and described by the figure 8, in the connected plat returned in this suit by Martin Daniel; then on Holeman’s line to his lower corner; then on Holeman’s line east of his corner a beech and sugartree ; thence south on a marked line, to a corner poplar and beech; thence on said line west, to said creek; thence 'north to a line made by said Merewether, for the lower line of said Pendergrass’ claim, and described in the said connected plat by the line drawn from figure 8 to 14 ; thence with the said last mentioned line, east to the beginning : and that the said surveyor do also survey and ascertain' the quantity and boundaries of'the interference of the survey or surveys of the defendant Margaret’s said settlement and pre-emption rights, on which a grant or grants have been obtained, [167]*167with the said entries of the complainants, and the said Jonathan’s when surveyed as above directed, and make report thereof to the 6th day of the next term of this court.
And it is further decreed and ordered, that the said surveyor do survey, lay off, and ascertain by boundaries,' a quantity of land equal to the quantity which the said interference shall be found to contain, of the land contained in the complainants’ grant and not in the entry, agreeably to the choice which shall be made by the defendants as above specified, and make report thereof to the 6th day of the next term of this court.
And at the October term in the said year, the decree was made final. But the defendants prayed a rehearing, and filed the following certificate of errors, to-wit:
First. That it is alleged as a ground for the said decree, that the defendant Wilson did fraudulently induce the complainant Owens to survey the claim of the complainants contrary to entry; whereas no such charge is exhibited in the bill.
Second. That the only fraud charged in the said bill is against a certain Daniel Sullivan, who was not made a party to the suit, and against even whom it is declared by the decree no fraud was fully proven, but strong circumstances of it.
Third.
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At the June term, 1794, the following decree was pronounced:
Br the Court.
In deciding on this case it seems necessary to inquire: had the complainants the first, just, and legal claim to the land in contest ?
The claim of the complainants depends upon an entry which is sufficiently special, and which was known to the defendants when they made their survey.
The claim of the defendants is of older date, as well as superior in dignity, but the defendants have not shown that this land is included in their location with the commissioners, or their entry with the surveyor, and it seems to be confessed by them that it is not included, they only plead that they included this land in their purvey by the express agreement of the complainant Owens, with, the defendant Wilson. Therefore the second question will be, was there such an agreement entered into between Owens and Wilson as will bind the complainants, and justify the manner in which the survey of the defendants has been made?
The defendant Wilson, in his answer, swears positively to the agreement which is pleaded, and that such an agreement was made, is confirmed by the testimony of Daniel Sullivan, but as far [165]*165as a negative can be proved, it is contradicted by a variety of other testimony, and concomitant circumstances.
Therefore if it appeared that the decision of the cause materially depended on the existence of this agreement, the fact ought yet to be tried by a jury, which would be more competent to decide on the credibility of 'the testimony in the case, and the strength of the circumstances attending it. But if the existence of this agreement were indubitably fixed, it would not be binding if the inducements made use of to procure it were fictitious and fraudulent.
It appears that the bounds of the defendant Pendergrass’ claim had before been fixed and approved of by her, and the complainants had made their entry to adjoin those bounds; when the defendant Wilson proposed to depart from those bounds, and to extend the claim of the defendants on the entry of the complainants, Owens warmly opposed it.
Then Wilson urged that the defendants had the eldest and best claim, and that they were first entitled to get their complement, that they had a right to run on the entry of the complainants and would run on it, and that after much conversation on the subject, and Owens still persisting in his opposition to the removal proposed, Wilson declared that he would extend the claim of the defendants on the entry of the complainants, and proceeded to make a survey thereon accordingly, on which they have obtained a grant.
It not being shown that these allegations were founded in truth or that the defendants had a right thus to survey, or that there was any good consideration to induce Owens to agree that the survey should be so made, it ought to be presumed that there was no Iona fide agreement entered into between Owens and Wilson, and Owens being an illiterate man and a stranger, that any agreement which he made was extracted by misrepresentation, and an apprehension that his withholding his consent could only involve him in a contest with a superior claim.
It has not been fully proven, that Daniel Sullivan assisted in accomplishing this deception, though strong circumstances appear to support the charge.
It is sufficient to give this court jurisdiction, that the complainants have charged and proven fraud on the defendant' Wilson, neither can there be a doubt that the other defendant should be subjected to the same consequences of the unjustifiable measures [166]*166taken by her husband, to procure an advantage' for her, as well as for himself.
Whereupon it is decreed and ordered, that the defendants do, on or before the 25th day of December next, convey unto the complainants by deed in fee simple with special warranty, all the lands contained in the entry made in the name of the said complainants and Jonathan Smith, for 1,334 acres of land, and which is contained in the grant or grants of the defendants, obtained on the settlement and pre-emption rights of the defendant Margaret Pendergrass, now Margaret Wilson.
It is further decreed and ordered, that the complainants do, on or before the said 25th day of December, convey unto the defendant, Margaret Pendergrass, now Margaret Wilson, by deed in fee simple with special warranty, an equal quantity of the land to that above decreed to be conveyed by the defendants to the complainants contained in the said defendants’ grant, obtained on the said entry, and not included in the bounds specified by the said entry, if so much shall remain, after Aquilla Whitaker has got. the quantity and the part thereof, to which he is entitled by a decree of this court, made and pronounced on the 31st day of May, 1794, to be laid off from the south or north end of the said remainder as the defendants shall choose.
It is further decreed, and ordered, that Jonathan Boone, deputy surveyor of Shelby county, do go on the lands in controversy, and survey and lay off the' said entry, made in the name of the complainants and Jonathan Smith, in the following manner, to-wit:
Beginning at the walnut, sugar tree and hoop-wood, fixed by Ni.cholas Merewether, for the lower corner of Margaret Pendergrass’ settlement and pre-emption on Brashear’s creek, and described by the figure 8, in the connected plat returned in this suit by Martin Daniel; then on Holeman’s line to his lower corner; then on Holeman’s line east of his corner a beech and sugartree ; thence south on a marked line, to a corner poplar and beech; thence on said line west, to said creek; thence 'north to a line made by said Merewether, for the lower line of said Pendergrass’ claim, and described in the said connected plat by the line drawn from figure 8 to 14 ; thence with the said last mentioned line, east to the beginning : and that the said surveyor do also survey and ascertain' the quantity and boundaries of'the interference of the survey or surveys of the defendant Margaret’s said settlement and pre-emption rights, on which a grant or grants have been obtained, [167]*167with the said entries of the complainants, and the said Jonathan’s when surveyed as above directed, and make report thereof to the 6th day of the next term of this court.
And it is further decreed and ordered, that the said surveyor do survey, lay off, and ascertain by boundaries,' a quantity of land equal to the quantity which the said interference shall be found to contain, of the land contained in the complainants’ grant and not in the entry, agreeably to the choice which shall be made by the defendants as above specified, and make report thereof to the 6th day of the next term of this court.
And at the October term in the said year, the decree was made final. But the defendants prayed a rehearing, and filed the following certificate of errors, to-wit:
First. That it is alleged as a ground for the said decree, that the defendant Wilson did fraudulently induce the complainant Owens to survey the claim of the complainants contrary to entry; whereas no such charge is exhibited in the bill.
Second. That the only fraud charged in the said bill is against a certain Daniel Sullivan, who was not made a party to the suit, and against even whom it is declared by the decree no fraud was fully proven, but strong circumstances of it.
Third. That said decree alleges that the defendant George Wilson, made sundry false allegations to the complainant Owens, whereby the said Owens was induced to survey the complainants’ claim in the bill mentioned, contrary to entry and to law. Whereas there is no such fraud charged in the bill against the said Wilson, and^therefore there is no foundation for such a decree.
Fourth. That it is alleged in the said decree, that the court ought to presume, there was no bona fide agreement entered into between the said Owens and Wilson, although in the said decree it is declared that the said agreement was positively sworn to by the said George Wilson, and confirmed by the testimony of Daniel Sullivan, and that the proof opposed thereto was only negative.
Fifth. The complainants have not stated in their bill any equity whereon to found a decree against the defendants.
Sixth. That the-fraud charged in the bill upon Daniel Sullivan, not being proved, can not affect the defendants, and were it even proved it would not be imputable to them, the said Owens’ remedy if any, being against Sullivan in a court of law, and not against the defendants.
Seventh. That by the said decree, the court have m \de an ex[168]*168change of lands between the parties, which they never consented to or contemplated, and have decreed to the defendants lands, which the complainants in their bill declare they have no right to, and which they also declare they can by no means hold under their patent.
And the cause was directed to be reheard at this term, and being reheard the following decree was pronounced:
By the Court.
It seems that the errors assigned in this cause, may all be comprised and. considered under three general questions:
First. Can positive proof of a bona fide agreement be destroyed by negative testimony ?
Second. Is the fraud stated in the opinion of the court on which the decree is founded, sufficiently charged in the bill ?
Third. Has the court decreed an’ improper exchange of land between the parties ? '
On the first question the court is of opinion, that positive proof may sometimes be destroyed by that which is negative, and if it can be in any instance whatever, that this is one of them.
This agreement is stated by the defendant Wilson, not in direct answer to any allegation in the bill, but only in a way of avoidance, and to Sullivan’s deposition little credit can be given, because of the gross frauds which it was proven he practised in making this survey, and because some parts of the deposition is contradicted by other testimony more deserving of credit; but neither Wilson nor Sullivan relate the consideration on which Owens entered into this agreement.
Therefore the court are now of opinion, that the testimony which in the former opinion is stated as negative, was rather additional and positive, and puts it beyond doubt if any such agreement was made with Owens as stated in the answer, that it was obtained by the most improper means.
As to the second question, it appears to the court, that in the bill,' fraud is charged on the defendant Wilson, in two respects. First. That when he made the resurvey, he fraudulently departed from the land which the other defendant had before elected and surveyed, and to the injury of the complainants. Second. That the defendant Wilson had fraudulently instigated Sullivan to make a survey for the complainants contrary to their entry.
The court was of opinion and is still of opinion, that in the first respect, the charge was clearly fixed by the proof of the assertions made by Wilson to Owens, and recited in the former opinion of the court.
As to the second part of the charge, it was not fully proven that [169]*169Wilson had. instigated Sullivan, although strong circumstances appear to support the charge, but by the assertion of Wilson before alluded to, in connection with other testimony, it was clearly proven, that Wilson himself used the most unjustifiable measures to prevent the survey of the complainants from being made agreeably to entry, and whether Sullivan was or was,not instrumental, in giving these measures success, it seems to the court must be an immaterial circumstance, the object of Wilson having been some how accomplished.
On the third question the court is of opinion that the decree does not express or imply that an exchange of land between the parties was intended by the court, but that the conveyances which they are directed to make were dictated by' different and sufficient principles, similar to those entered on the record of yesterday in the case of Jackson and Owens v. Whitaker.
On a view of the whole errors alleged in this cause the court is of opinion that the interlocutory and final decrees made and pronounced in this cause ought to stand unaltered and confirmed, save only that it is now further decreed and ordered that the complainant shall, on or before the 1st day of October next, execute a deed unto the defendants as in the said last mentioned, decree is directed; and, likewise, that the defendants shall, on or before the said 1st day of October next, execute a deed unto the complainants, as in the said last mentioned decree, is, also, directed. Costs, etc.
Note. — The year in which the entry of Margaret Pendergrass’ settlement was made with the surveyor is omitted; it was in 1779.