51 Tenn. 122 | Tenn. | 1871
delivered the opinion of the Court.
This is a petition for mandamus to compel defendant Aydelette, entry taker of Hickman county, to receive certain entries, and record them on his books, tendered by complainant, W. S. Eainey. These entries were thirteen in number, marked as exhibits A to M, inclusive.
The entry taker refused to spread these entries on his books, on the ground that the same land was covered by older^ entries, as appears by his endorsement on them, October 9, ,1857.
The lands sought to be entered by Bainey, it appears, had been previously entered by the following parties, to-wit: The entries referred to in record as exhibits B, D, E, P, G and H, were made by George Perry, while he was entry taker, and the mandamus was granted as to them' by the Circuit Judge.
Entry, exhibit A, for three thousand eight hundred acres, was made by George Perry and D. B. Warren, July 3d, 1846, and as to it the mandamus was disallowed. Eive other entries seem to have been made by D. B. Warren, from 1844 to 1847— the mandamus was disallowed as to all these entries. Both parties appealed from the judgment of the Circuit Court, so that the entire action of that Court is before us for revision. In the brief of counsel for complainant, it is admitted, however, that there is no proof that Warren was a deputy entry taker or surveyor, and the case is abandoned, as we understand it, as to the entries made by him.
The answer admits that D. C. Perry was entry -taker from 1836 to 1851, and George Perry from that time to 1855.
A mandamus, however, would not lie to compel the entry taker to receive ' an entry, where it is doubtful whether a previous entry is void or not: 2 Hum., 330. Yet if the entry was void — an absolute nullity — or made in violation of law, and declared void by statute, then such entry interposes no obstacle to a subsequent ^enterer, and the entry taker may be compelled .to receive an entry tendered in accordance with the law, as in the case of Graham v. Smith, 1 Hum., 547, where a party sought to make two entries’ by virtue of the same warrant — the last entry was held void in a proceeding by mandamus, and the entry taker compelled to receive an entry for the land covered by it. The Act of 1821, c. 31, which forbid the second entry, by virtue of the same warrant, provided, “That any entry hereafter made contrary to. the true intent and meaning of this act, shall bo void to all intents and purposes.” The Court in the above case held, that the land attempted to be
Tbe first question tben, in tbis case is, were tbe entries made by tbe entry taker in bis own office void, or did tbey interpose any obstacle to a subsequent enterer, wbo might desire to obtain tlie land from tbe State, by paying tbe fees, as provided by law, and receiving a grant for tbe same; or could tbe entries be declared void alone at tbe suit of the State.
Tbe Act of 1777, c. 1, entitled “An Act for establishing offices for receiving entries of claims for lands in tbe several counties within tbis State, for tbe method of obtaining title to the same, and for other purposes therein mentioned,” provides in s. 1, for tbe election by tbe Justices of each county, of an entry taker, “ to receive entries of claims for lands within said counties, and also one surveyor for each county.
Section 5 provides for tbe mode of making entries in tbe office of the entry taker thus elected in substance as follows: “ That the claimant of any land shall produce to tbe entry taker, a writing setting forth tbe name of tbe county in which tbe land lies, with such description as therein provided for, and that, “every-such writing shall be endorsed by tbe entry taker, with the name of tbe claimant,
By sect. 18 of this act, it is provided, “ That if any entry taker shall be desirous to make an entry of lands in his own name, such entry shall be made in its proper place before a Justice of the Peace of the county, not being a surveyor or assistant surveyor, which entry the Justice shall return to the County Court at their next sitting, and the County Court shall insert such entry; and every entry made by or for such entry taker in any other manner than is herein directed, shall be illegal and void, and any other person may enter, survey, and obtain a grant for • the same.”
This section of the Act' of 1777, was held to be in force, unrepealed by this Court in case of Egnew v. Cochran et als., 2 Head, 333. "Where it was also held, that upon common law principles, an entry taker could not make an entry in his name, because against public policy. The Court in that case waive the decision of the question, effect upon a grant thus obtained by the entry taker, whether it is to be regarded as void, and open to attack in a court of law, or only voidable at the suit of the party aggrieved in a court of equity.
The above section being in force, and the principle being sound, that an entry taker could not upon com
It certainly could not be maintained that under this clause tbe entry of the entry taker, unless made as required by this section, was not void — and if tbe statute bad not gone further, under tbe decided cases above cited, we think such entry would interpose no obstacle to a subsequent entry. That wbicb is void in law, in the language of the Court in Graham v. Smith, 1 Hum., 548, “is a nullity — it was as if never made” — but tbe balance of tbe section settles tbe whole question, by declaring that “ any other person may enter, survey, and obtain a grant for tbe same land.”
Rainey then bad tbe right to tender bis entries, and if the only obstacle to their reception was, entries made by an entry taker, and not made as required by this section, that is before a Justice of
It follows from this construction, that the entries made by the entry takers _in this case- were absolutely void, as if they never existed — the land was in precisely the same condition,, so far as being subject to entry is concerned, as any other vacant and unappropriated land in the State. In this view of the case, no notice would be required to be given before entering, to any one, because of a claim, or pretended claim, that such land had been previously entered, as the -pretended entry of the entry taker had no legal existence.
As to the other provisions of the Act of 1853-4, that notice is required to be given before entering lancl^ “ on which another resides, or which is cultivated by another” — the question is not presented before us in this record,' of the effect of these provisions, as it is not shown that any one resided on these lands, or cultivated them at the time Rainey tendered his entries. If such was the case, the
It is insisted, however, that the second section of said act of 1853-4 validates all- these entries and grants.
Said section provides that all entries heretofore made — that is previous to 20th December, 1853, the date of the act — and all grants obtained by any person or persons, of any of the vacant and unappropriated lands in this State, where the same at the time of making said entries, and obtaining said grants, did not interfere with the rights of some other person or persons, be, and the same are hereby declared good and lawful entries and grants, and shall be an absolute bar to any suit or suits which may hereafter be commenced in any Court of law or equity by any other person or persons; provided said entries and grants are not a fraud upon the State of Tennessee.
This statute refers alone to entries made before its date, has no prospective operation, and was not intended to have any. Only one of the entries in which the mandamus was ordered by the Circuit Judge, that
¥e have had some difficulty in giving a construction to the proviso in the last clause of the section above quoted — that is “provided said entries are not a fraud upon the State of Tennessee.”
On looking at the preamble to statute of 1777— organizing the offices for entries, we find what was the policy of the State for opening her lands to purchase in this way to her citizens. It is “'Whereas, it is-expedient that the lands within this State should be •parcelled out to industrious, people, for the settlement thereof, and increasing the strength and number of the people of the country, by affording an easy and comfortable subsistence to families,” be it therefore enacted, etc. It appears from this. preamble, that the object of the State was, that her lands should be “parcelled out” for settlement iipon them. This object would be very effectually defeated if the very officers appointed for the purpose of acting as agents of the State, - in facilitating the effort of the industrious - citizens to procure a title to his home, should be allowed, with his superior knowledge of the lands, and forms of proceeding in making entries, to take advantage of these circumstances to enter the lands for himself and before himself. It would open the door for immense frauds upon the object of the statute.
The entry taker was a public agent for the disposition of these lands by entry — was charged with this duty by the law. In case of a private agent
It is said, however, that the principal alone could avoid the fraudulent act of the agent, or .charge the agent by reason of it. This is true, but in this case we have seen that the State, by the 18th section of Act of 1777, has said, the entry was void, and the land subject to be entered by other parties — and then we see that the Act of 1853 only validates such entries as are not “frauds upon the State.”
The entries being fraudulent as to the State, are not cured by the act of 1853, and not being cured by it, they stand as before that act, and arc no obstacle to a subsequent enterer.
We think it certain that the State might have avoided these entries and grants by a proceeding on her part, as having been fraudulently obtained —if so, there can be no question that they are not cured by the Act of 1853 — and stand on the same ground they occupied before the passage of that act.
This ■ disposes of the twenty-five and a half acre entry — and of the whole case in this record.