35 N.C. 313 | N.C. | 1852
Lead Opinion
The premises lie in Cherokee County and contain 140 acres. The lessor of the plaintiff claims title in the following manner: The General Assembly of 1848 passed a resolution, which was ratified on 26 January, 1849, in these words: "Resolved, (1) That the Secretary of State be and he is hereby authorized and required to issue to Ailsey Medlin, for the services of her father, Benjamin Schoolfield, in the continental line of the State in the War of the Revolution, or her heirs or assignee, a grant or grants for a quantity of land, not exceeding 640 acres, to be located in one body, or in quarter-sections of not less than 160 acres, on any of the lands of this State now subject to entry by law; said grant or grants to be issued on the application of the said Ailsey Medlin, her heirs or assignee, as she or they may prefer, in one or four grants. (2) That the said warrant or warrants shall or may be laid so as to include any lands now belonging to the State for which the (314) State is not bound for title: Provided, that this act does not extend to any of the swamp lands of this State." On 25 September, 1849, a grant for the premises was issued to the lessor of the plaintiff, wherein is recited the above resolution in favor of Ailsey Medlin, and *215 that Stanmire is her assignee, and the land is described as lying in the Cherokee Country, by metes and bounds set forth in the patent and in the plat annexed thereto, and the quantity stated to be 640 acres.
The defendants admitted themselves to be in possession of 400 acres, part of the land granted to the lessor of the plaintiff, and they claimed title thereto as follows: It is tract No. 71, in District 6 of the Cherokee lands, surveyed for the State for sale on 29 May, 1837, and was purchased from the commissioners, Samuel F. Patterson and Charles L. Hinton, at the sales of the Cherokee lands on 2 November, 1838, at the price of $8,000, by the defendant John A. Powell, who then paid $1,000 of the purchase money and gave his bond for the residue, according to the statute. He took from the commissioners a certificate of his purchase, endorsed on the survey, describing the land, and in 1841 he paid into the treasury the sum of $400, in part of his bond. Immediately on his purchase he entered into possession of the land, and he and the other defendants under him have been in possession of that parish ever since, claiming it under the purchase. By consent, a verdict was taken for the plaintiff, subject to the opinion of the court on the foregoing facts. Afterwards his Honor, being of opinion with the defendants, set the verdict aside, and, according to the agreement, gave judgment of nonsuit, but allowed the plaintiff an appeal.
Addendum
The question is as to the validity of the grant (315) to the lessor of the plaintiff. It is settled in this State that a grant founded on an entry made where vacant land is subject to appropriation by entry cannot be collaterally impeached for defects in the entry or irregularity in any preliminary proceeding. But a distinction is equally well established, that when the law forbids the entry of the vacant land, in a particular tract or country, a grant for a part of such land is absolutely void; and that may be shown in ejectment. Thus, entries within the Cherokee boundary were forbidden by the acts of 1778 and 1788, and, consequently, the grants were held to be void. Avery v. Strother, 1 N.C.;Strother v. Cathey,
(319) If, however, that should not be the correct construction of the resolution — and it is perhaps proper to say that, framed as it is, one cannot be certain of it — yet the Court is agreed that the land claimed by the defendants was not the subject of grant under the resolution, and that the grant must be held to be null in this action. The reason why grants for land, taken up as vacant within the counties to which the entry laws extend, cannot be impeached collaterally is that there is a general authority in the public officers to issue such grants, and they are, therefore, to be taken as having been rightly issued, unless that matter be directly put in issue in a proceeding to impeach them. But it has already been mentioned that it is otherwise in respect to land over which the entry laws do not extend, or in respect to which, though belonging to the State and within an entry county, some other particular mode of disposition is provided, because in these cases there is either total want of power or an excess of it in regard to the subject matter. The present seems to the Court to fall within the latter class of cases, even if it be admitted that land in Cherokee might have been taken under the resolution; for, supposing that the resolution had expressly said that the claim might be located on any land in Cherokee for which the State was not bound for title, it could not have been construed as a provision in a general statute would be which opened all vacant lands in Cherokee to entry by any citizen. On the contrary, it must be regarded as making a special gift of particular land, or of land in a specified condition, and construed as exceptions from general rules usually are, that is, strictly, or at all events fairly, towards the State and previous claimants under her. It is known that the lands in Cherokee are in various states. Much, not fit for cultivation, was not surveyed for sale. Some, which was surveyed, was put up at the sales, but not sold for want of bidders. Much was sold, and of that some has been surrendered by the purchasers, or their sureties, and accepted by the State; and some, (320) including that now in controversy, is still held and claimed under the purchasers. It could not have been the purpose of the Legislature to give to this person land which she had before sold to another of *219 her citizens for a high price, paid or secured. The bounty, then, must not be taken to be of so much Cherokee land generally, but to be made in very special terms, confining the right to such portions of those lands, if included at all, as the State was not previously bound by her contract and her honor to convey to any other person; and, therefore, it is incumbent on the donee to show that his grant is for land within the particular description, or, at all events, it is fatal to it when it appears that the land is not of that particular description, but had been purchased, and that the State was justly bound to the purchaser for it.
PER CURIAM. Judgment affirmed.
Cited: Lovingood v. Burgess,