Den on Demise of Strother v. Cathey
| Decision Date | 31 July 1807 |
| Citation | 5 N.C. 162 |
| Parties | DEN ON DEMISE OF STROTHER v. CATHEY. |
| Court | North Carolina Supreme Court |
1. A court of law will receive parol evidence to show that the officers of State have issued a grant for lands forbidden by law to be entered and granted; and will take notice that such grant is void and that nothing passes by it.
2. Where a grant has issued irregularly, the party wishing to avoid it must apply to a court of equity. The act of 1783, ch. 2, forbids entries or surveys to be made of certain lands set apart for the Cherokee tribe of Indians. In 1791 this tribe in a treaty made with the general government, "relinquish, release and cede these lands." The right of the Indian tribe to lands is regarded by the European and American governments as a mere possessory right; and the cession of this right by the Cherokee tribe vested the right in North Carolina, and the United States were the agents of North Carolina for that purpose.
THIS was an ejectment for lands lying within the bounds of the lands allotted to the Cherokee Indians by the act of 1783. The lessor of the plaintiff claimed title under a grant from the State, issued 19 May, 1803, upon an entry made in 1791. The defendant claimed title under a grant from the State issued 8 December, 1787. The act of 1783, ch. 2, having declared that "no person shall enter or survey any lands within the bounds set apart for the Cherokee Indians under the penalty of £50, and that all such entries and grants obtained therefor (if any such should be made) shall be utterly void," the first question in the case was whether, upon the trial of the ejectment, evidence could be received to show the circumstances which rendered the grant under which defendant claimed void; and upon this being shown, whether the court could declare the grant void; it being contended on behalf of the defendant that although the grant under which he claimed title to the land was void, yet a court of law will not receive parol evidence on a trial in ejectment to show the grant void, but that recourse must be had to a court of equity, or to that mode of avoiding grants prescribed by the act of 1798, ch. 7. As the plaintiff in ejectment must recover by the strength of his own title, and not through the weakness of his adversary's, it also became a question whether the grants to the lessor of the plaintiff conveyed to him a title; for the act of 1783, ch. 2, hadnever been repealed by the Legislature. On 2 July, 1791, a treaty was made by William Blount on behalf of the United States with the Cherokee Indians, and it is stipulated in said treaty that "the chiefs and warriors of the Cherokee
Nation, for themselves and the whole Cherokee Nation, their heirs and descendants, for a consideration therein expressed, release, quitclaim, relinquish and cede all the lands to the right of the line therein described"; and within the bounds therein described is the tract of land in question. It was contended that this treaty revested in the State of North Carolina the lands which the act of 1783, ch. 2, had vested in the Cherokee Indians; that although the treaty contained no declaration that the cession and relinquishment of these lands were for the use of this State, yet that the treaty must necessarily receive this interpretation; and that the United States acquired no title to these lands by the said treaty.
To determine the questions arising in this case, it is necessary to consider the titles under which each party claims the land in dispute. The Legislature of this State in 1783 passed an act declaring "that all the lands comprehended within a line described in section 5 of said act shall be and are hereby reserved unto the Cherokee Indians and their nation forever," and in section 6 of said act further declaring "that no person shall enter and survey any lands within the bounds set apart for the Cherokee Indians under the penalty of £50; and all such entries and grants thereupon (if any such should be made) shall be utterly void." The defendant claims title to this land under a grant issued by the State of North Carolina to John Carson, bearing date on 8 December, 1787, whilst the above recited act was in full force, and before any treaty was made with the Cherokee Indians by which they surrendered or relinquished any of the rights reserved to them by the act of 1783. It hasbeen determined by this Court, in Strother v. Avery (not reported), that a grant obtained under circumstances like the present is utterly void, and can convey no title to the grantee, upon two grounds: first, because the words of the act are imperative and declare the grant to be utterly void; and, secondly, because the officers of State were not authorized to issue grants for lands of this description; the State having by the act of 1783 divested itself of all title to the same. But it is contended that although the grant be void, yet a court of law will not receive parol evidence on a trial in ejectment to show the grant void, but recourse must be had to a court of equity, or to the mode of proceeding prescribed by the act of 1798, ch. 7, establishing the court of patents. This Court entertains the opinion that it has always been competent for a court of law to receive parol evidence of the location of each tract of land described in a grant, and that in many cases it is
only by such kind of testimony a grantee can show the situation of the land mentioned in the plaintiff's declaration or in defendant's grant; and wherever it is shown that the land claimed by the defendant is situate within the bounds allotted to the Indian Nation, then the grant becomes ipso facto void; it requires no act to be done, no ceremony to be performed to avoid it, but it is of itself a mere nullity. Besides, it is competent for a court of law at all times to receive parol evidence to show that the officers of State, who have signed and attested the grant, were not authorized or empowered to issue a grant for lands of a particular description; for if they exceed the authority delegated to them by law, their acts have no force nor validity; and would it not be absurd to say that a grant issued by an individual not known as an officer of the Government, and clothed with no authority, could not be declared void in a court of law, but that recourse must be had to a court of equity? Grants of this description differ essentially from those where...
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