Thompson et al. v. Roberts et al.

them; for the record shows conclusively that the very same defence against these notes was the only point in dispute in the court of equity, to wit, whether plaintiffs in error were "deceived by" the alleged misrepresentations of Smith, fraudulent or otherwise, and whether the notes were therefore "without consideration," and "absolutely void."

The objection that the parties were not the same in both suits cannot be sustained.

Both parties to this litigation were parties in that suit; the subject-matter was the same; the defence now set up was the same which the pleadings and the evidence show to have been adjudicated in the court of chancery.

It is true, Smith, who endorsed the notes to the plaintiffs below, and who was interested in the question, was joined as complainant, and the Pickell Mining Company, who had purchased the mortgaged property, were made respondents, according to the practice in courts of chancery, where all parties having an interest in the question to be tried are made parties, that the decree may be final as to all the matters in litigation. No good reason can be given why the parties in this case, who litigated the same question, should not be concluded by the decree, because others having an interest in the question or subject-matter were admitted by the practice of a court of chancery to assist on both sides.

The question as between the present parties is res judicata, and none the less binding because others are concluded also. A contrary doctrine would sacrifice a wholesome principle of law to a mere technical rule having no foundation in reason; making a distinction where there is no difference.

Such was the ruling of the court in the case of Lawrence v. Hunt, (10 Wendell, 82,) where it was objected that in the former suit there was another plaintiff joined. Where the former suit was at law, this objection might have some weight, for it could not well be said that a contract of A and B with D and C was the same as that in another suit where A was sole plaintiff and D sole defendant. But this objection cannot apply where the first issue is in chancery, and parties collaterally interested are made parties to the litigation, that it may be

McEwen et al. v. Den, Lessee.

final, and not because they were legal parties to the original contract on which the litigation is founded. In such a case the pleadings may show the contract or subject-matter of the litigation to be the very same, and directly in issue; in the other, it could not be well so. As we are of opinion that there was no error in this instruction, it will not be necessary to notice the other points alluded to in the argument, this one being conclusive of the whole case.

The judgment of the Circuit Court is therefore affirmed, with costs.

WILLIAM S. MCEWEN AND HENRY H. WILEY, PLAINTIFFS IN ERROR, V. JOHN DEN, LESSEE OF CHARLES BULKLEY AND STUART BROWN.

By the laws of Tennessee anterior to 1856, a deed for lands lying in Tennessee could not be acknowledged or proven in another State before the clerk of a

court.

In 1856, a law was passed allowing this to be done. This statute was prospective.

The circumstance that the law of 1856 was called an amendment of the prior law does not change this view of the subject.

Where a deed was acknowledged in 1839, before the clerk of a court in another State, a copy of it from the record was improperly allowed to be read in evidence to the jury.

Where the defendant claimed under the statute of limitations and showed possession of Evans's coal bank; the validity of this plea will depend upon the fact whether or not Evans's coal bank is within the lines of the plaintiff's patent. The case remanded to the Circuit Court for the purpose of ascertaining this by a corrected survey made according to the rules laid down by this court.

THIS case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Ten

nessee.

It was an ejectment brought under the circumstances stated in the opinion of the court, and was argued by Mr. Maynard and Mr. Heiskell for the plaintiffs in error, and Mr. Nelson for the defendants.

McEwen et al. v. Den, Lessee.

The principal question in the case was, whether the possession of the defendants below was upon the tract of land claimed by the plaintiffs, so as to constitute a bar to the action through the statute of limitations. Maps were produced in court, but so many tracts of land were laid down upon them, that it was difficult to decide the point. The arguments of counsel bearing upon it could not possibly be understood by the reader.

Mr. Justice CATRON delivered the opinion of the court. Bulkley sued McEwen and Wiley, in an action of ejectment, for 5,000 acres of land. At the trial, the plaintiff introduced a patent issued to Thomas B. Eastland, dated December 21st, 1838, No. 22,261. The plaintiff next offered to read the copy of a deed from Eastland to Bulkley for the tract granted, (with other lands;) to the reading of which objection was made, but the court admitted the copy to be read; to the admission of which the defendants excepted.

By the laws of Tennessee, the fee in land does not pass unless the conveyance is proved, or duly acknowledged and registered. This deed purports to have been acknowledged by the grantor, Eastland, before the clerk of the court of common pleas for the city and county of New York, and is certified under his seal of office. And this was accompanied by a certificate of the judge of said court, that Joseph Hoxie, before whom the deed was acknowledged, was clerk, and that the court of which he was clerk was a court of record. On this evidence of its execution, the deed was registered in the county where the land lies; but at what time it was registered does not appear. The acknowledgment was taken October 25th, 1839. At that time, a deed for lands lying in Tennessee could not be acknowledged or proven in another State before the clerk of a court.

In 1856, an act was passed, (ch. 115,) which it is insisted validates this probate. It provides, that deeds proved or acknowledged before the clerk of any court of record in any of the States of this Union, and certified by the clerk under his seal of office, and the chief magistrate of the court shall certify to the official character of the clerk, the probate or acknowledg

Mc Ewen et al. v. Den, Lessee.

ment shall be valid. And the second section declares, that all deeds proved or acknowledged, and certified in manner aforesaid, may be registered in this State, and shall be good to pass title, &c.

It is insisted, that the act is retrospective as well as prospective in its operation, and covers the acknowledgment made in 1839, in New York.

We think the statute of 1856 is prospective, and that to hold otherwise would be a strained construction, and violate a general rule of jurisprudence, to wit, that it is of the very essence of a new law that it shall apply to future cases, and such must be its construction, unless the contrary clearly appears.

It is next insisted that the act of 1856, being an amendment of the act of 1839, carries with it the provisions of this law. The act of 1856 declares, that the act of 1839 "be so amended" that all deeds, powers of attorney, &c., proved or acknowledged before a foreign clerk, may be registered, and have full effect. An additional mode of probate is provided; nor does the act go any further.

The deed offered in evidence was recorded without legal proof of its execution; and, therefore, a copy of the record could not be evidence. The court erred in admitting the copy to go to the jury.

The plaintiff below described the land sued for in his declaration, which is required to be done by the laws of Tennessee. The declaration calls for the boundaries of grant No. 22,261, made to Thomas B. Eastland, December 21st, 1838. The defendants then gave in evidence two other grants, for 5,000 acres each; one to Thomas B. Eastland, No. 22,267, being one of the tracts contained in the deed from Eastland to Bulkley; and another to Henry H. Wiley, one of the defendants, No. 26,086. The two junior patents covered the principal possession of the defendants, at a place known as Evans's coal bank. This fact was admitted; and it furthermore appeared, that the defendants had held seven years' adverse possession at the coal bank, under Wiley's grant. And it was insisted below, and is again here, that as Bulkley had shown himself to be the owner of both the tracts granted, and as the op

McEwen et al. v. Den, Lessee.

eration of the act of limitations drew to Wiley's younger patent the title of Eastland's junior grant, and vested this title in the defendants, they were protected by the statute, because Bulkley had the right to sue at all times during the seven years, by virtue of grant No. 22,267. But the court instructed the jury to the reverse of this assumption, and, we think, correctly. From the facts stated, it is true that the right of action founded on the younger grant to Eastland was barred, to the extent that Wiley's grant interfered with No. 22,267; and assuming it to be true, that the defendants could avail themselves in defence, or affirmatively, of this title, still it could avail them nothing, as both No. 22,267 and No. 26,086 were inferior to grant No. 22,261.

The main question in the cause turns on the fact, whether the possession at Evans's coal bank was within the boundary of the grant No. 22,261, described in the declaration, and alone relied on at the trial by the plaintiff. It calls to begin on the south bank of Coal creek, four poles below Bowling's mill; thence running south with the foot of Walden's ridge, 894 poles, to a stake at letter H, in Henderson & Co.'s Clinch river survey; then west, crossing Walden's ridge, 894 poles to a stake; thence north 894 poles to a stake; then a direct line to the beginning.

It was proved at the trial, and is admitted here, that no line was originally run and marked but the first one; and that at I there is a marked poplar corner tree, which is a line mark of the grant. It being admitted that the first line is established, and that it is regarded as a north and south line, and that the other lines of the tract were not run or marked, it follows they must be ascertained by course and measurement. How they are to run is matter of law; and on this assumption, the Circuit Court instructed the jury as follows: "To identify the land appropriated, the jury must look to the calls, locative and directory, the foot of the mountain, the creek, the coal bank, the marked trees, courses and distance, number of acres demanded and paid for, &c.; and they will look to the survey, fall or partial; that assuming the correct mode of survey to have been by horizontal measurement, and that the surveyor