Graham v. Gunn, 87 Tenn. 458

Graham v. Gunn

87 Tenn. 458 | Tenn. | 1889

Lurton, J.

This is a bill to stay waste. The title of complainant is deraigned from a grant issuing in 1853. The title of defendants, by regular chain of conveyances, is traced back to a grant to J. C. King in 1840. There has been no such possession by either party as makes a title under the statute of limitations. The title of defendant is the superior one, unless the grant under which he holds is void, and this presents the question to be decided.

The King grant issued upon an entry made in *460an entry taker’s office for Humphreys County in 1839, and both entry and grant purport to be for land lying in Humphreys County. A survey, however, shows that while the beginning corner, and a large part of the entry lie in Humphreys County, yet a part of the land entered and granted, embracing that now in dispute, laps over into the adjoining county of Hickson.

The contention of complaint is that the King grant is void as to so much of the land within its bounds as lies within the county of Hickson. The land in controversy lies north and east of the congressional reservation line, and north of the Tennessee Iiiver.

The Act of 1823, Ch. 49, which provides for the entering of the vacant lands lying in that district, provided for the election and qualification of one 'entry taker for each county in the district, and while the officer receiving the entry is not by that Act expressly prohibited from receiving an entry for lands which lie partly out of the county for which he is elected, yet it is argued that the authority and power of each entry taker is, by necessary implication, limited to the reception of entries for land wholly lying within his own county. The grant under which defendants claim purports to have issued under the Act of January 9, 1830, being Chapter 85. By Chapter 87 of the Acts of 1829, being an Act passed January ' 9, 1830, and the same day of the passage of the Act under which the King grant purports to have been issued, *461it was provided, “ That where an , entry has been heretofore made, or may hereafter be- made, in any county in this State, under the law of 1823 and 1825, authorizing land to be entered at twelve and a half cents and one cent per acre, north and east of the congressional reservation line, and north of the Tennessee River, the beginning corner of which is in one county and a part of the entry in another, that it shall and may be lawful for the surveyor of the county where such beginning corner is situated to proceed and survey such entry agreeable to the calls, 'provided such entry and survey shall not interfere with any other prior legal claim.”

The Acts of 1823 and 1825, referred to in this Act last cited, were Acts authorizing the entry of lands in the district embracing, among other counties, the two counties of "Dickson and Humphreys. .The Act of 1823 fixed the price to be paid by the enterer at twelve and a half cents per acre, and limited the quantity to be covered by one entry to six hundred and fort}" acres.

The Act of 1825 reduced the price from twelve and a half cents to one cent per acre. By the Act of 1827, Oh. 46, the quantity which might be embraced by one entry of lands in the district noi’th and east of the congressional reservation line was increased to one thousand acres. By the Act of January 9, 1830, being the Act under which the King grant purports to have been entered, the quantity which might lawfully be included in one entry was increased to five thousand acres, and the *462provision in former acts requiring the enterer to pay one cent per acre was repealed, and the fees of the entry taker for taking an entry were reduced. These four acts all relate to one subject, and hence, are to be construed as parts of one whole. The Act of January 9, 1830, is obviously hut an amendment of the Acts of 1823 and 1825 concerning the entering and granting of the vacant lands in this district. Now the Act authorizing the survey of lands where' the beginning corner lay in one county and a part of the entry in another, refers not only to entries which had been made under the Acts of 1823 and 1825, hut it was to operate prospectively upon entries thereafter to he made. The Act of 1830 is hut an amendment of the Acts of 1823 and 1825, and we arc of opinion that the Act passed upon the same day, which authorized the survey of entries beginning in one county and extending* into another, applies to entries made under and by virtue of the Act of 1830.

The next objection urged to the validity of the King grant is based upon the' provisions of the Act of 1825, Chapter 28, which is as follows: “That where an entry has been heretofore made in any county in this State, under the law of 1823, authorizing land to he entered north .and east of the congressional reservation line, the beginning corner of which is in one county, and a part of the entry in another, it shall and may he lawful for the surveyor of the county where such beginning corner is' situated, to proceed and survey such entry as in *463other cases, and a copy thereof shall be taken by the enterer to the entry taker’s office of the other county, as the case may be, and be recorded therein, for which service of recording the entry taker shall be allowed one dollar.” This Act related exclusively to entries theretofore made, and it had no prospective effect. But by the Act ofi 1827, Ch. 46, its provisions were extended to all entries thereafter made of lands north and east of the congressional reservation line. The entry upon which the King grant is based is not shown to have been recorded as provided by these Acts, and it is insisted that for this reason the grant is void as to the land embraced within its bounds which lies in Dickson County.

The Acts of 1829, Ch. 87, heretofore cited, does not contain any provision requiring the recording of the entry in the county into which the entry extends. The only limitation upon the latter Act is that “ such entry and survey shall not interfere with any other prior legal claim.” In all other respects the Act of 1830 is identical with the Act of 1825. The omission of the requirement that the enterer should record his entry in the “ other county,” is significant, and when we consider that in lieu of it is the proviso that such entry shall not interfere with a prior entry, we can but regard the latter Act as entirely substituted for the former, thereby abolishing the requirment as to recording such entries. But independently of this view we should be slow to hold that the mere failure of the en-*464terer to record sucli an. entry in the other county, into which his entry extended, should have the effect of rendering the grant void. The Act relied upon does not, in terms, declare the entry void for failure to record it. The entry taker clearly had authority to receive the entry, and the surveyor to survey it. Neither the entry taker nor the surveyor were required to cause it to be recorded. The en-terer wa^s required to record it, but this was after the -entry had been made and surveyed. To hold that a grant is void for failure of the e'nterer to so record his entry, would be going further in avoiding a grant on a collateral attack than any reported case has gone. The case of Crutchfield v. Hammock, 4 Hum., 204, is not like this case. In that case the entry taker had no power to receive the entry, and the principle is laid down that entries and grants are void, and may be resisted in any suit, where there is a want of property in the grantor, or want of power in the officers to receive the entry or issue the grant. Then there was no want of property in the grantor, or power in the officer, to secure the entry or issue the grant. The contrary conclusion as to the validity of this grant would, it is believed, result in incalculable injury and litigation. The lands of the State have probably all been long since granted, and now, after the Act of 1830 has been in force -more than half a century, to bold a grant void because a part of the granted land lay in a county other than that in which the beginning corner of the entry is found, *465would probably disturb a vast number of very old titles. Every consideration of public policy forbids sucb a construction unless tbe plain letter of tbe law permits none other. We are of opinion that tbe King grant is valid, and tbe decree of tbe Chancellor must be reversed, and tbe bill of complainant dismissed with costs.