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must take effect under those legal provisions which extend to mesne conveyances.
The act which purports to revive the act of 1788, is that of Tennessee, of 1794 ; and by that, the right of recording out of the county where the land lies, is wholly dropped. The general words of the act of North Carolina, in 1790, are not adopted; but the right of recording again, is explicitly brought back to the general policy of the country, that of recording titles in the county w land lies.
The question will, no doubt, here occur, whether the Legislature could have intended to impose this duty, while there was no county, and no Court, in wbich such record could be made.
The answer is, that the question is here immaterial, sincu it is enough for all the purposes of the defendant below, if the obligation to record did not exist at all, until there was a county established; but were it otherwise, the only question here is, whether the provisions of the act of 1794, or any other act prior to 1797, revives the supposed right to record in Hawkins county; whether it grants a privilege, or imposes a duty, as to that particular county, and the right of recording in any other place than where the land lies.
The act of 1796, which is that under the immediate protection of which it is necessary that Allison's deed should be sustained in favour of the plaintiff below, contains a simple revival of the act of 1794, without any farther provision. Its-meaning and effect, therefore, must be read upon the face of the latter act.
There were some other points made in the argument, which, as the cause must be sent back, it is proper to notice.
At one, if not two periods, of the early history of Tennessee, there occurred an interval of time, during which the suspending laws, as they are called, did, not exist, and that of 1715, of course, operated upon all cases within it. That State passed from the jurisdiction of North Carolina in 1790, but its first territorial Legislature did not meet until 1794. By a provision of the act of separation, the laws of North Carolina became the laws of Tennessee, until repealed by the Legislative authority of the ceded territory, or, it is presumed, until they expired by heir own limitations. Whether an hiatus occuri d in these suspending laws, at the interval of time, is immaterial in this cause, since the junior deed did not come into existence until after the passage of the act of 1794. But between the sessions of-1800 and 1801, there did occur a chasm in these suspending laws, which chasm, the defendant in error contended in argument, put an end to the interest claimed under the prior deed altogether.
It is obvious, that this arguiment assumes for its basis the supposition, that the registration of his deed in Hawkins county was valid. and effectual to this purpose. The opinion has been expressed, that the 5th section of the act of 1788, was not in force at the time when that registration was made. . And the Court now recurs to the subject, only to avoid the imputation of having admitted the conclusion in favour of the defendant in error, had the
registration in Hawkins county been made while the law was in force. We give no opinion on the operation of the act of 1715, on titles to those lands which were so situated that it was impossible for the provisions of the act of 1715 to be complied with ; that is, those lands which lay in no designated county. In the present instance, the land in controversy was not included within a county line, until the year 1801. As both deeds were registered in the proper county, after the
chasm occurred, they are both equally affected by it, and it has no bearing upon their interests, as made out under the registration where the land lies.
Another point made in argument, was, that the defendant could not protect himself under the title to Adair, without connecting himself with it. Upon recurring to the words of the charge, we find it to be, that the plaintiff below had the better title. From this, an inference undoubtedly arises, that if the defendant below had exhibited a better title, the plaintiff could not recover, even though the defendant did not show that better title to be transmitted to himself.
Since the registration in the county where the land lies, and which is the only registration deemed valid in this cause, gave the prior registration to the prior deed, and thus took away every claim to precedence from the deed under which the plaintiff below made title, the Court must be adjudged to have erred in its charge upon that subject. On the implied proposition, that the better title might be set up, as a shield against the plain
1824. tiff's recovery in ejectment, even though the de
fendant does not show that better title in himself, Love
we will limit ourselves to the following remarks: Simms.
The rule of law, that a plaintiff must recover by the strength of his own title, and not the weakness of his adversary's, must be limited and explained by the nature of each case as it arises. Since the rule is universal, that a plaintiff in ejectment must show the right to possession to be in himself positively, and it is immaterial as to his right of recovery, whether it be out of the tenant or not, if it be not in himself, it follows that a Denant is always, at liberty to prove the title out of thie plaintiff, although he does not prove it to exist in himself. Possible difficulties may be suggested as to the application of this principle to mere tort feasors or forcible disseisors; but besides that such cases, being 'generally provided for under statutes of forcible entry, must be of rare occurrence, it is time enough, when they occur, to consider what exceptions they present to the general principle.
The last point proper to be noticed, is that made in the former argument, on the question of revocation of the power of attorney under which the junior deed was executed.
This was supposed to be virtually revoked by the prior conveyance of the same land, executed by Donaļdson, who gave the power, And this, on general principles, is unquestionably correct. Whatever liabilities, for damages or otherwise, Donaldson might have incurred by not revoking the power by due notice, it is unques
tionable, that a power must cease and determine when there is nothing left for it to act upon. It will be seen, however, that this question resolves itself into the principal question in the cause, to wit, whether the first deed ever was a subsisting valid conveyance. If it was not, then the ground of the argument fails, for the estate had not, in effect, ever passed out of Donaldson; and if it was, then its effect is complete, without recurring to the ground of revocation.
JUDGMENT. This cause came on to be heard, &c. On consideration whereof, this Court is of opinion, that the said Circuit Court erred in instructing the jury "that the lessor of the plaintiff had the better title to the land in controversy." It is, therefore, ADJUDGED and ORDERED, that the judgment of the said Circuit Court in this case be, and the same is hereby reversed and annulled : and it is further ORDERED, that said cause be remanded to the said Circuit Court, with instruction's to issuc a vcnirė facias de novo.