Burgess Poole and others, plaintiffs in error v. The Lessee of John Fleeger and others, 11 Pet. 185

Mr. Justice Story delivered the opinion of the Court. This is the case of a writ of error to the judgment of the circuit court of the United States for the district of West Tennessee.

The original writ was an ejectment; brought by Fleeger and others, (th now defendants in error,) against Poole and others, (the now plaintiffs in error,) to recover a tract of land containing 2,727 acres in Montgomery county, in Tennessee, lying south of Walker’s line, so called; which constitutes the present boundary line between the states of Kentucky and Tennessee; and north of Mathew’s line, so called, which is exactly now in latitude 36° 30' north; which by the constitution of North Carolina, is declared to be the true northern boundary line of the state, and is so described in the charter of King Charles the 2d.

At the trial, the original plaintiffs proved their title to be as devisees of one Frederick Rohrer, who claimed it by a grant of the state of Kentucky, dated the 24th of February, 1796, in part satisfaction of a Virginia military land warrant, held by Rohrer as assignee of one John Montgomery. They also read, in evidence, the compact between the states of Kentucky and Tennessee, of the second of February, 1820.

The defendants claimed title under certain grants from the state of North Carolina of various tracts comprehending the premises in question, dated in 1786, 1792, and 1797; and also under certain grants from the state of Tennessee in 1809, 1811, 1812 and 1814, from which they deduced a regular title to themselves; and they proved that the same grants covered their possessions respectively, except that each of the defendants, whom the jury at the trial found guilty of the ejectment, were in possession of portions of land not. covered by any grant, older in date than that to Rohrer.

The defendants also proved that the different grantees under whom they .claimed, took possession of the different tracts of land contained in their grant, on or about the date thereof; and that they and those deriving title under them, have' continued in the possession of the same ever since.

Various other evidence was introduced'by the defendants, the object of which was to establish that Walker’s line had been-for a long time acted- upon as the boundary line between North Carolina and Virginia, before the separation of Kentucky and Tennessee therefrom;- and that after that separation Tennessee had continued to exercise exclusive jurisdiction up to that line, with the acquiescence of Kentucky, until the compact of 1820. As our judgment turns upon considerations distinct from the nature and effect of that evidence, it does not seem necessary to repeat it on the present occasion.

By the compact of 1820, between Kentucky and Tennessee, (art. 1,) it was agreed that Walker’s line (which was run in 1780) should be the boundary line between those states; and by the sixth-article it was further agreed that <( claims to land east of Tennessee river, between Walker’s line and the latitude of 36° 30' north, derived from the state of Virginia, in consideration of military services, shall not be prejudiced in any respect, by the establishment of Walker’s line; but such claims shall be considered as rightfully entered or granted; and the claimants may enter upon said lands, or assert their rights in the courts of justice without prejudice by lapse of. time, or from, any statute of limitations for any period prior to the settlement of the boundary between the two.states; saving, however, to the holders and occupants of conflicting claims, if any there be, the- right of showing such entries or grants to be invalid, and of no effect; or that they have paramount and superior titles to the land covered by such Virginia claims.” By another

article (the 4th) it was further agreed that, “ all lands now vacant and unappropriated by any person, claiming to hold under the states of North Carolina or Tennessee, east of the Tennessee river, and north of the parallel of latitude of 36 degrees 30 minutes north; shall be the property of and subject to the disposition of the state of Kentucky.” ' Upon the whole evidence in the cause, the court instructed the jury, “that as by the compact between Kentucky and Tennessee, the boundary line of thirty-six degrees thirty minutes north, was fixed several miles south of Walker’s line, and of.the land in controversy; the titles of the defendants were subject to the compact, and could only be sustained under it.

That the state of Tennessee, by sanctioning the compact, admitted in the most solemn form that the lands in dispute were _not within her jurisdiction, nor within the jurisdiction of North Carolina at the time.they were granted; and that, consequently, the titles were subject to the conditions of the compact.” To this opinión of the court the defendants excepted; and the validity of this exception constitutes the main subject of inquiry upon the present writ of error; the jury having found a verdict in favour of the plaintiffs .upon this opinion, and judgment having been rendered in conformity thereto in the court below.

We are of opinion- that the instruction given by the court below is entirely correct. It cannot be doubted, that it is a part of the general right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between their respective territories; and the boundaries .so established and fixed by compact between nations, become conclusive upon -all the subjects and citizens thereof, and bind their rights; and are to be treated, to all intents arid purposes, as the true aqd real boundaries. This is a doctrine universally recognised in.the law and practice of nations.

It is a right equally belonging to the-states of this Union; unless it has been surrendered under the’constitution of the United. States. So far from there being any pretence of sucha general surrender of the-right, that-it is expressly recognised by the-constitution, and guarded in its exercise by a single limitation Or restriction, requiring the consent of congress.

The constitution declares,-that-“ no state shall;' without the consent of congress, enter into .any agreement-or compact with another state;”’ thus plainly admitting" that, with such,’ consent, it might be done: and in the present instance, that consent has been expressly given. The compact, then, has frill validity, and all the terms and conditions of it must be equally obligatory upon the citizens of both states. Independently of this broad and general ground, there are other ingredients in the present case equally decisive of the merits.

Although, in the compact, Walker’s line is agreed to be in future the boundary between the two states, it is not so established as having been for the past the true and rightful boundary; on the contrary, the compact admits the fact to be the other way.

While the compact cedes to Tennessee the jurisdiction up to Walkér’s line; it cedes to Kentucky all the unappropriated lands north of the latitude of thirty-six degrees thirty minutes north.' It thus admits, what is in truth undeniable, that the true and legitimate boundary of North Carolina is in that parallel of latitude; and this also is declared in the charter of Charles the second, and in the constitution of North Carolina, to be its true and original boundary.

It goes farther and admits that all claims under Virginia to lands north of that boundary, shall not be prejudiced by the establishment of Walker’s line; but such claims shall be considered as rightfully entered or granted. The compact does, then, by necessary implication, admit that the boundary between Kentucky and Tennessee, is the latitude of thirty-six degrees thirty minutes; and that Walker’s line is to be deemed the true line,-only for the purpose of future jurisdiction.

In this view of the matter it is perfectly clear that the grants made by North Carolina and Tennessee, under which the defendants claimed, were not rightfully made, because they were originally beyond her territorial boundary; and that the grant, under which the claimants claim, was rightfully made, because it was within the territorial boundary of Virginia. So that upon this narrower ground, if it were necessary, as we think it is not, to prove the case, it is clear that the instruction of the court was correct.

And this disposes of the argument which has been pressed upon us, that it is not competent for a state, by compact, to divest its citizens of their titles to land derived from grants under the state; and that it is within the prohibition of the constitution, that “ no state shall , pass any law impairing the obligation of contracts.” If the states of-North Carolina and Tennessee could not rightfully grant the land in question, and the states of Virginia and Kentucky could, the invalidity of the grants of the former arises, not -from any violation-of the obligation of the grant, but from an intrinsic defect of title in the states.

We give no opinion, because it is unnecessary in this case, whether this prohibition of the constitution is not to be understood as necessarily subject to the exception of the right of the states, under the same constitution, to make compacts with each other; in order to settle boundaries and other disputed rights of territory and jurisdiction. In the progress of the trial one or two other objections were made, which may require some notice.

The defendants objected to the introduction of the will of Frederick Rohrer, under which the plaintiffs claimed as devisees, as evidence'; first, because the probate and certificate of that will (it having been made and proved in Pennsylvania) were not’such as to authorize its registration in the state of Tennessee; secondly, because the will was' not registered in the state of Tennessee, until after the institution of this suit. The court overruled the objection. But it does not appear that any exception was taken to the opinion of the court upon this point, at the trial.

On the contrary, the record states, that “ no exception to the opinion of the court permitting the will to be read was taken in the progress of the trial, nor was it stated that the right to do so was reserved. The practice of the court is, for exceptions to be taken after trial, if deemed necessary.” Under these circumstances, some difficulty has arisen as to the propriety of taking any notice whatsoever of this objection.

In the ordinary course of things at the trial, if an objection is made and overruled as to the admission of evidence, and the party does not take any exception at the trial, he is understood to waive it. The exception need not, indeed, then, be put into form, or written out at'large and signed; but it is sufficient that it is taken, and the right reserved to put it into form, within the time prescribed by the practice or rules of the court.

We do not find any copy of the will. or any probate or certificate, thereof in the record, or any registration thereof; and it. is, therefore, impossible for. us to say, whether, the ground assumed in the first part of the objection is well founded or not. This leads us strongly to the inference, that the objection was intentionally'waived at the trial. The second ground is clearly unmaintainable; for, if the registration was rightfully made in Tennéssee, it has relation backwards; and the time of the registration is wholly immaterial, whether before or after the institution of the suit.

Another objection made by the defendants at the trial was to the evidence of title offered by the lessors of the plaintiff, upon the ground that this title was a tenancy in common, which would not in law support a joint demise. This objection was overruled, with an intimation that the point would be considered on a motion for a new trial.

No exception was taken to this ruling of the court; and the new trial was, upon the motion, afterwards refused.- The party not taking any exception, and acquiescing in the intimation of the court, must be understood to waive the point as a matter of error; and to insist upon it only as a matter for a new trial. But it is unnecessary to decide the point upon this ground; for, in the state of Tennessee, the uniform practice has been, for tenants in common in ejectment, to declare on a joint demise, and to recover a part or the whole of the premises declared for, according to-the evidence of title adduced. .

This was expressly decided by the court in Barrow’s Lessee v. Nave, 2 Yerger's Rep. 227, 228; and on that occasion the court added that this practice hau' never been drawn in question as far as they knew, or could ascertain; and in fact no other probably could, be permitted after the act of 1801, ch. 6. sec. 60, which provided, “that after issue joined in any ejectment on the title only, no exceptions to form or substance shall be taken to the declaration in any court whatever.” The judgment of the circuit court is therefore affirmed, with costs.

This cause came on to be heard on the transcript of the record from,the circuit court of the United States for the district of West Tennessee, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs.