The opinion of the court was delivered by: Mr. Justice Trimble delivered the opinion of the Court.
THIS cause was argued by Mr. White, for the appellants, and by Mr. Isaacks, for the respondents.
This case comes before the Court by appeal from the decree of the Circuit Court for the Western District of Tennessee.
The bill was instituted by James Hibbits in his lifetime, and alter his death the suit was revived in the names of the appellees, his heirs at law, after which the defendants, now appellants, appeared and answered.
The object of the suit was, to have delivered up to the complainant a land warrant of 5,000 acres, which had been issued in the name of James Hibbits, upon an entry made by him in John Armstrong's office, No. 394., and to restrain James and Henry W. M. Connor, and each of them, from procuring a grant upon a survey which had been made and returned for the use of James Connor, by virtue of the warrant, under colour of certain assignments alleged by James and Henry Connor to have been made by Hibbits, and to have those assignments set aside.
It appears, that James Connor held a writing under seal, dated the 25th of September, 1796, purporting to be signed and executed by James Hibbits, to the following effect; 'I, James Hibbits, of the county of Iredell, and State of North Carolina, for and in consideration of the sum of ninety-three pounds ten shillings, of the State aforesaid, have granted, bargained, and sold, to James Connor, of Mecklenburgh county, and State aforesaid, a 5,000 acre warrant entered in Colonel John Armstrong's office, No. 394, and I do authorise Colonel William Polke, or any of his deputies, or any other surveyor, to issue the returns, when the land is surveyed, in the name of James Connor.'
The execution of this assignment is contested by the bill, which suggests, that a mere order for the delivery of the warrant was given, without any terms of transfer; but its due execution is expressly averred by the answer, and clearly sustained by evidence.
It appears, from the statements of the bill and answer of James Connor, that although this assignment purports to be general and absolute, there was a parol agreement and understanding between the parties at the time of its execution, qualifying its general import. But the parties differ very materially as to the character and extent of this parol agreement. Both admit that Hibbits was indebted to Connor a sum of money, which it was not convenient then to pay, but they differ as to its amount. Both agree that the sum so due from Hibbits to Connor, and Connor's agreement to pay to government a balance due upon the entry of about twenty-four pounds, with the interest thereon due to the State, and for which the warrant was detained, was the consideration of the assignment. Hibbits insists, that by the agreement and understanding of the parties, the assignment was intended as a mortgage or security for the debt, together with the advance to be made to the government; but Connor, in his answer, expressly denies such was the character of the agreement, and insists it was, that Connor should be proprietor of the warrant, so far as these sums would go, at the rate of sixty pounds per thousand acres, and that the residue should be held by him in trust for Hibbits. It appears that Connor paid to the government 45 pounds, 17 shillings and four pence, the balance due upon the entry, with interest, and procured the warrant to issue, and be delivered to him, on the 29th of November, 1797. It appears, that the adjustment and settlement of their respective interests in the warrant, was the subject of occasional correspondence and negotiation between them from that time until 1817; but that, as the land lay in the Indian country, and could not lawfully be surveyed until the Indian title should be extinguished by the general government, the matter lay over until that period.
It appears that in June, 1817, James Connor sent his son, Henry W. M. Connor, with a power of attorney, and instructions, from North Carolina, to James Hibbits in Tennessee, to adjust the business within, either by selling to Hibbits Connor's interest in the warrant, or purchasing Hibbits' interest in it. That on the ___ day of June, 1817, at Hibbits' own house, a contract was made by Henry Connor, as agent of James Connor, with Hibbits, by which Hibbits agreed to transfer and assign to James Connor, or his agent for his use, all Hibbits' interest in the warrant, for which Connor agreed to convey to Hibbits by deeds with special warranty, Connor's right in two grants of 1000 acres, in Connor's name, calling to lie on Swift Creek; and also give a bond for the conveyance of 150 acres in Bedford county; in execution of which agreement an assignment of the whole warrant was accordingly executed by Hibbits, and deeds for the two grants of 1000 acres each, on Swift Creek, and a bond for the 150 acres in Bedford County, were executed by Henry W. M. Connor, as agent for James Connor.
The bill charges that this assignment was procured by Henry W. M. Connor 'most fraudulently, and in the following manner:' 'that Hibbits was confined to his bed by a severe and long spell of sickness, under the influence of which he had laboured several months; that his intellect and his faculties were so much debilitated and impaired, that he scarcely knew any thing he was doing; that Henry Connor represented all the lands he proposed giving for the warrant as good and valuable lands; and he moreover represented that the land called for in said warrant lay south of, and without the limits of the state of Tennessee; all of which assertions and allegations of said Henry were false, and known by him to be so at the time. He had been correctly informed that the land lay in this state, (Tennessee,) and that it was very valuable; he had been offered for part of it six dollars per acre, and he also knew that the two tracts of 1000 acres each on Swift Creek had never been surveyed; and that the 150 acres in Bedford county had been taken by a better claim.'
This is the substance of the charges of fraud and misrepresentation made in the bill, all of which are substantially denied by the answer.
At the hearing of the cause, the Circuit Court decreed that the assignment of the ___ day of June, 1817, should be set aside and held for nought; that neither of the Connors should hold any interest in the warrant by virtue of that assignment, and then proceeded to direct what interest the parties should respectively hold in the warrant, under the assignment and contract of 1796, and directed a release of the proportion allotted by the decree to the complainants accordingly.
It is plain that if the assignment of 1817 ought not to be set aside, the decree must be considered not only erroneous but there can be no necessity for inquiring what interest each party should hold in the warrant under the contract and assignment of 1796, independently of the assignment of 1817. That matter was adjusted by the contract and assignment of 1817; ...