14 N.C. 268 | N.C. | 1831
Lead Opinion
When I observed, that the first act on processioning which is to be found in the Revisad, (c. 14,) declared, that any person wiiose lands were twice processioned according to that act, shall be deemed and adjudged the sole owner of such land, and that it was supposed that clause gave a title to lands which might be twice processioned under the act of 1792, (Rev. c. 365,) 1 could not but consider it as a proceeding fraught with danger to the rights of land proprietors, and felt myself altogether justified in throwing every legal impediment in the way of a title, thus to be consummated. I was prepared to say, that the processioner’s return in this case was not made out according to the 6th section of the act of 1792, (Rev. c. 365,) which declares, that “ the proccssioner shall make out a certificate in words at full length, for each tract by him processioned an objection, which I should be at a loss how to get clear of in cases of minor importance. The act is imperative t, and tlie proccssioner’s certificate is not made out in words at full length. Arid for that reason the report must be set, aside, with leave to the plaintiff to proceed further in the cause, as the law directs.
It is to be observed, that the act of 1823, (c. 14,) directs that lands shall be processioned, and the marks renewed once in every three years. And that he, whose lands are twice processioned, shall be adjudged the sole owner of such lands. The act of 1792 leaves every person at liberty to have their lands processioned or not. Jf they elect to have them processioned, no particular
Lead Opinion
His Honor, Daniel, J., on the last circuit, affirmed the judgment, and the defendants again appealed. When I observed that the first act on processioning, which is to be found in the Revisal, ch. 14, declared that any person whose lands were twice processioned according to that act shall be deemed and adjudged the sole owner of such land, and that it was supposed that clause gave a title to lands which might be twice processioned under the Act of 1792 (Rev., ch. 365), I could not but consider it as a proceeding fraught with danger to the rights of land proprietors, and felt myself altogether justified in throwing every legal impediment in the way of a *229 title thus to be consummated. I was prepared to say that the processioner's return in this case was not made out according to the sixth section of the Act of 1792 (Rev., ch. 365), which declares that "the processioner shall make out a certificate in words at full length, for each tract by him processioned"; an objection which I should be at a loss how to get clear of in cases of minor importance. The act is imperative, and the processioner's certificate is not made out in words at full length. And for that reason the report must be set aside, with leave to the plaintiff to proceed further in the cause, as the law directs.
It is to be observed that the Act of 1823 (ch. 14) directs that lands shall be processioned, and the marks renewed once in every three years. And that he whose lands are twice processioned shall be adjudged the sole owner of such lands. The Act of 1792 leaves every person at liberty to have their lands processioned or not. If they elect to have them processioned, no particular time is stated in which it is to be done. They may have them processioned today, and again tomorrow. (270) And the doubt may be very honestly entertained whether that is such a twice processioning as will give a good title. The present case does not require an opinion to be given on this point.
RUFFIN, J., concurred.
Dissenting Opinion
dissentiente.- — I cannot but believe, that the words at full length, to be found in our processioning acts, are fully satisfied by abbreviations, not only of common, but I believe I might say of universal use ; as N. for North, E. for East, W. for West, jjo. for poles, chs. for chains, when it is shown by the context, that these abbreviations are used as descriptive of the courses and distances. There can be in such case no possibility of a mistake. In our acts, describing the mode in- which surveyors shall make out and return plats of vacant lands, made upon entries,the words are “ words at lengthAnd surely there can be no substantial difference between words at length and words at full length.. Yet this interpretation would render nearly all of our surveys void. And thereby also, our grants would be-annulled. The legislature meant, that as the thing was to be done in words, and frequently for the use of plain and unlearned men, the proceedings should be so described, that all could understand them. I must therefore declare my dissent from the opinion of the court, for I think that the proceedings should not be quashed.
Per Curiam. — Judgment reversed.
