Campbell v. Garven

Bp the Court, Lacy J. It is certainly competent for the circuit court to modify or change its proceedings and judgments at any time during the term at which they were had, and before the same has finally expired. Within that time they are in' contemplation of law supposed to be and remain in the breast of the judge for the purposes of revision and correction. In the exercise of this power, the court, as in all other cases, would be bound by a just legal discretion, and would not, in its practice, be permitted capri. ciously and arbitrarily to sport away the vested rights of parties. In the present instance we perceive not the slightest abuse of power or discretion, in first granting to the defendants an appeal, and then upon his own motion during the sameterm and on the succeeding day re-instating the case on the docket, and subsequently trying and determining it. The opposite party made no objection to the motion, and the court set aside the order of appeal, and allowed the defendant to put in additional pleas, upon which the cause was afterwards heard, and judgment was thereupon rendered for the plaintiffs. In this, there was no error. Fowler for the appellant moved for a reconsidertion, but at July 1844, withdrew his motion. The court below properly admitted the will of Thomas Garven, deceased, to be proved by the subscribing witnesses. One of the witnesses testified that he was present, and saw the testator sign and acknowledge it, and that he was of sound mind, and disposing memory. The death of the other witness was then proved and the genuineness of his signature established. Upon this proof the court allowed the will to be read as evidence in the cause. It is true that the will was not regularly probated, so as to give to it the sanction and verity of a judicial record. The lessors of the plaintiff claim title to the land in ejectment as devisees of Thomas Garven, deceased, and showed that jt was devised to them. They produced the patent to Thomas Gar-ven, which issued since his death agreeably to an act of Congress, which described the premises. In such a case the patent is as valid as if it had issued before his death, and his devisess take under it in the same manner they would if he had been living at the time of its issuance. To resist this title the defendant offers a regularly certified copy from the books of the Register of the land-office, at Fayetteville, showing that sundry persons claiming to be heirs and representatives of Thomas Garven, deceased, entered the same land before the patent issued. The court rightly rejected this testimony. It certainly requires neither argument or authority to prove that in such case as we are now considering a patent cannot be impeached collaterally or cancelled in a court of law. Those who claim under it have a perfect legal estate of which can they recover possession in the present action of ejectment. Judgment affirmed.