74 S.E. 1019 | N.C. | 1912
The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE WALKER. This is an action for the recovery of land. Plaintiff claimed title under a grant (No. 2596) issued to Jacob Shope in 1862, upon an entry made by him in 1859, and the will of Jacob Shope (406) devising the land to her. Defendants claimed under a purchase made by Clark Byrd from the State, under the act of 1819, providing for the sale of the lands acquired by treaties with the Cherokee Indians of 1817 and 1819. They connected themselves with Byrd by mesne conveyances. A grant was issued by the State to Clark Byrd, as purchaser, in 1864, and recites the fact that the tract is a part of the land acquired by treaty from the Cherokee Indians and sold under the provisions of the act of the General Assembly to Clark Byrd, who had paid the purchase money. The grant of Jacob Shope recites the fact that the tract therein described is a part of the land acquired by treaty from the Cherokee Indians and sold under the act of General Assembly aforesaid, but it does not state that it was bought by Jacob Shope, but that he entered it. Both grants were duty registered, and it was admitted that they covered the land in dispute. It was also admitted that the land described in the grant to Clark Byrd, No. 2934, was Section No. *329 11, District No. 17, in Macon County, acquired by treaty from the Cherokee Indians, surveyed by the State in 1820 and bought at a sale made by the commissioner for the State, by Clark Byrd, to whom the said grant issued in accordance with the statute concerning the sale of Cherokee lands. And the grant which was issued to Jacob Shope in 1859 upon his entry was for the same land as that described in the grant issued to Clark Byrd.
The court charged the jury that if they found as a fact that the plaintiff, Mrs. Anderson, is the same person to whom the land was devised by Jacob Shope, the plaintiff would be entitled to recover the locusin quo, as the grant to Jacob Shope was issued more than two years before the grant was issued to Clark Byrd, under whom the defendants claim. The court, therefore, made the plaintiff's right to recover depend solely upon the seniority of the grant to her father, who devised it to her. All of the charge is not set out, but whatever else the judge may have said to the jury, and however correct it may have been, if there was error in the instruction as to the grants, there must be a new trial, as the instructions were so blended that we cannot tell which one influenced the jury to give their verdict for the plaintiff. Tillett v.R. R.,
Referring to the right to attack a grant collaterally, and stating that it depends upon whether the jurisdiction of the officer to issue it is *330
general or special, Judge Pearson said: "Upon these two distinctions our case is easily disposed of. The act of 1852 confers a general authority. It extends to all unsold land at a fixed price per acre. But it was properly admitted by the plaintiff's counsel that the grant to him could not be supported by the aid of that statute (act of 1852); (because) the statute only authorizes the entry and grant of vacant and unsold
land, whereas the land in controversy had been previously surveyed and sold according to the provisions of the statutes in reference to land lying in the county of Cherokee." Speaking to a like question, JusticeConnor said in Janney v. Blackwell,
We think, therefore, that the instruction of the court was erroneous.
There were questions discussed as to the statute of limitations, with special reference to the bearing of Ritchie v. Fowler,
With the facts now before us, we are of the opinion that there was error in the instruction given to the jury.
New trial.
Cited: Smathers v. Hotel Co., Ib. 349; s. c.,