Mason v. McLaughlin

Hemphill, Ch. J. The first assignment is as to the supposed error in permitting the plaintiff to read in evidence certain papers, set out in the defendant’s bill of exceptions. The first paper, embraced in the exception, is marked A, and purports to be the copy of a paper filed in the General Land Office, being the several transfers of certificate No. 749, from Philip Mason to the last assigned, Travis G. Brooks. The objection to the paper was twofold, viz : 1st. That it purported to be an assignment of a different certificate from that set out in the petition ; and 2nd. That it was not such a paper as is made evidence by the certificate of the Commissioner of the General Land Office. The only point in which there is a want of identity between the description of the certificate of Mason, as sold to Brooks, and the certificate, as sold to the plaintiff, McLaughlin, is in the number, the first being 749 and the latter being 751. In other respects there is perfect correspondence. They are both for the headright of Philip Mason for a league and labor of land, and issued by the Board of Commissioners of Shelby County. There is not much probability that there were two Philip Masons entitled to the same quantum of land. If there had been, it should have been proven by the defendants, as the plaintiff, by the pleading, had apprised them for months before the trial, that he intended to rely upon the paper as evidence of a transfer by Mason, of his headright certificate, of a date antecedent to the assignment to himself. Though there be a variance in the number, yet that was no sufficient ground on which to doubt the identity of the certificate, and there was [28] no error in refusing to sustain the objection for the want of identity. Nor was the admission of the paper erroneous on the ground that such paper is not made evidence by the certificate of the Commissioner of the General Land Office. By Art. 144 Dig., copies of the records of all public offices and Courts of this State, certified to under the hand and seal of the lawful possessor of such records, shall be admitted as evidence in all cases in which the records themselves are admissible, &c.— There can be no doubt that the mesne assignments of a land claim become records of the General Land Office, in all cases in which patent is authorized to issue to the assignee of such claim. The Commissioner must judge of the right of the assignee, by the inspection of the assignments, and these remain in the Land Office as evidence of the authority under which the patent was issued to the assignee. The Commissioner is then the proper custodian of such assignments, and as such, a copy under his official seal is admissible in evidence. The copy of the transfer by Mason to Brooks, being certified by the Commissioner, was legal evidence, and there was no error in receiving it as such. The objection to the patents, issued to Brooks, is also on the ground of identity. They were on a duplicate certificate from the General Land Office, which had no reference to the number of the original certificate. But the essential marks of identity, viz: that the certificate was for the headright of Mason, and that it was transferred to Brooks, were not wanting. The defendants were apprised that the evidence would be relied upon by the plaintiff, and had ample time to procure evidence by way of rebuttal, if in fact there was any such proof in existence. There was no error in permitting the patents to be received in evidence. In the' argument the counsel insists that there was error in the refusal by the Court to charge on the statute of limitations. In answer to this, it may be said that the plea of three [29] years limitation was not properly set up in the answer. This plea should aver possession not only under title or color of title, but under such title or color of title as is prescribed by the 15th Sect, of the statute, viz: by transfer from or under the sovereignty of the soil. But further, though a vendee, under deed, holds adversely to his vendor, yet the statute has prescribed no period within which an action may be brought for the rescission of a contract or cancellation of a deed; and though some reasonable limit, by way of analogy, would be fixed by the Courts, yet sufficient time had not elapsed in this case, to preclude the plaintiff from resort to his remedy. In the petition, the defendant is charged with fraudulent concealment of his previous transfer of the certificate, and this had been but lately discovered. There was no proof in support of the allegation, and it is not necessary to comment on the rule that the cause of action did not accrue to the plaintiff until after the discovery of the fraud. I allude to it only as there appears to be a misapprehension that this Court has adopted a different rule, viz : that the cause of action would accrue from the perpetration, and not the discovery of the fraud. No such principle has been decided by this Court, and no rule has been definitely prescribed on the subject. We are of opinion that there was no error in the judgment, and the same is affirmed. Judgment affirmed.