Doe Ex Dem. Lovinggood v. Burgess

44 N.C. 407 | N.C. | 1853

His Honor rejected the evidence, and there was a verdict and judgment for the plaintiff, from which the defendant appealed to the Supreme Court. It was decided as early as the year 1794, in the case ofReynolds v. Flinn, 2 N.C. 106, and has been adhered to ever since, that a grant, founded on an entry made of vacant land subject to entry, cannot be collaterally impeached for fraud or defects in the entry, or irregularity in any preliminary proceeding. But when the lands are not in fact vacant and unappropriated, or when the law forbids the entry of vacant land in a particular tract of country, a grant (408) for a part of such land is absolutely void; and that may be shown on the trial in an action of ejectment. University v. Sawyer, 3 N.C. 98; Strother v. Cathey, 5 N.C. 162. On this distinction, Stanmire v.Powell, 35 N.C. 312, was decided. That was the case of a grant issuing in pursuance of a resolution of the General Assembly, passed at its session in 1848, authorizing its location upon "any lands now belonging to the State, for which the State is not bound for title; provided, that this act does not extend to any of the swamp lands in this State." The grant was for a tract of land lying in the Cherokee country, where the lands were, prior to the year 1850, prohibited from entry by the general law; and on that account it was held in an action of ejectment to be void. But by the act of 1850, chapters 23 and 25, grants may, under certain circumstances, be issued for lands lying in the Cherokee country, and as the grant under which the lessor of the plaintiff claims, was issued under the operation of this statute, it cannot be impeached collaterally in the manner proposed by the defendant. His Honor, therefore, properly rejected the testimony which was offered by the defendant, for the purpose of showing that it had been obtained by fraudulent means. The judgment must be affirmed.

PER CURIAM. Judgment affirmed.

Cited: S. v. Bevers, 86 N.C. 588; Dugger v. McKesson, 100 N.C. 11;Brown v. Brown, 103 N.C. 216; Gilchrist v. Middleton, 107 N.C. 680;Dosh v. Lumber Co., 128 N.C. 84; Holley v. Smith, 130 N.C. 85; Board ofEducation v. Makely, 139 N.C. 37; Westfelt v. Adams, 159 N.C. 419;Walker v. Parker, 169 N.C. 154.