Janney v. Blackwell

• Decision Date: 23 May 1905
• Citation: 138 N.C. 437,50 S.E. 857
• Parties: JANNEY et al. v. BLACKWELL.
• Court: North Carolina Supreme Court

138 N.C. 437

50 S.E. 857

JANNEY et al.

v.BLACKWELL.

Supreme Court of North Carolina.

May 23, 1905.

PUBLIC LANDS—QUANTS — REGISTRATION—PRIORITY—RIGHTS OF GRANTEES.

1. Where a person enters and procures a grant for land covered by a grant, he acquires no title, as the state by the senior grant parted with its title.

2. A grant issued for land subject to entry may not be attacked collaterally for fraud or irregularity, but if the land is not subject to entry the grant is void, and may be attacked collaterally.

[Ed.-Note.—For cases in point, see vol. 41, Cent. Dig. Public Lands, § 473.]

3. Laws 1893, p. 52, c. 40, provides that grants theretofore made, which were required to be registered, "may be registered * * * at any time or times within two years from" January 1, 1894, "* * * notwithstanding that such specified times have already expired, and all such grants heretofore registered after the expiration of such specified time or times shall be taken and treated as if they had been registered within such specified time: * * * provided that, nothing herein contained shall * * * have the effect to divest any rights, titles or equities in or to land covered by such grants, " acquired by any person from the state by grant issued since such grants were respectively issued. Held that, where neither grantee had actual possession of the land, a plaintiff claiming under a grant issued in 1875 and registered in 1878 acquired no right, title, or equity in the land as against a prior grant issued in 1848 and recorded in 1895.

Appeal from Superior Court, Caldwell County; Webb, Judge.

Action by J. W. Janney and others against Nannie G. Blackwell. Case submitted on facts agreed, and, from a judgment for defendant, plaintiffs appeal. Affirmed.

This is a controversy without action, submitted to the court upon facts agreed, for the purpose of settling the matters in difference between the plaintiffs and the defendant under section 567 of the Code. The plaintiffs claim the land in controversy under grant No. 883 to W. D. Sprague, for 640 acres, dated December 29, 1875, and registered in the office of the register of deeds of Caldwell county October 31, 1878, and by mesne conveyances making a complete chain of title to the plaintiffs, all of which are in due form and registered. The defendant claims title to the land under grant No. 265 to Wilson Foster, for 100 acres, dated December 23, 1848, and registered in the office of the register of deeds of Caldwell county April 5, 1895, and by mesne conveyances making a complete chain of title to the defendant, all of which are in due form and registered. It is admitted that both grants covered the land in controversy, and it is also agreed that neither the plaintiffs nor the defendant, nor those under whom they claim title, have ever held any possession of the land in controversy, or any part of it, included in either of the said grants, except the recent entry by the defendant for the purpose of cutting the timber trees therefrom. The court, being of opinion that, upon the facts agreed, the plaintiffs ought not to recover, rendered judgment for the defendant. Plaintiffs excepted and appealed.

L. D. Lowe, for appellants.

Mark Squires, for appellee.

CONNOR, J. (after stating the facts). The statutes in force in this state for more than a century have permitted "all vacant and unappropriated lands belonging to the state, " with certain well-defined exceptions, to be entered, and grants taken therefor. Code, § 2751. "To be subject to entry under the statute, lands must be such as belong to the state, and such as are vacant and unappropriated." Hall v. Hollifield, 76 N. C. 470; State v. Bevers, 86 N. C. 588. By making the entry as prescribed by law the enterer does not acquire any title to the land, but only a "pre-emption right, " or, as it is sometimes called, an "inchoate equity, " or right to call for a grant upon compliance with the statute. The grant, when issued, relates to the entry, and vests the title in the grantee.

The land, when granted, is no longer subject to entry as "vacant and unappropriated lands." Featherston v. Mills, 15 N. C. 590; Hoover v. Thomas, 61 N. C. 184; State v. Bevers, supra; Newton v. Brown, 134 N. C. 439, 46 S. E. 994. It follows, therefore, that, if one lay an entry upon and procure a grant for land covered by a grant, he acquires no title thereto, for the reason that the state has by the senior grant parted with its title. Stanmire v. Powell, 35 N. C. 312. If the land be open to entry, and a grant be issued therefor, such grant may not be attacked collaterally for fraud, irregularity, or other cause. This can be done only by the state, or by pursuing the provisions of section 2786 of the Code. But if the land be not subject to entry, the grant is void, and may be attacked collaterally. Prior to 1885 the statutes provided that all grants, deeds, etc., be registered in the county wherein the land was situated within two years from the date thereof. With one or two omissions, the Legislature uniformly extended the time for registration for two years. This court with equal uniformity held that such instruments, when registered within two years from their date, or within the extended period, were good and valid for all purposes from their date by relation. Referring to grants, it was said in Hill v. Jackson, 31 N. C. 333, that "the passage of the acts * * * prolonging the time within which grants shall be registered in the county has practically the effect of rendering nugatory that clause in them. * * * The grants, then, may be registered at any time, if at that time there be any law authorizing the act. * * * If the registration of the grant was legal, then it must have the effect of relating back. This is a necessary con-'...