M'Iver v. Reagan

• Citation: 3 Tenn. 366
• Parties: M'IVER v. REAGAN.
• Decision Date: 01 January 1813
• Court: Tennessee Circuit Court

3 Tenn. 366

M'IVER

v.REAGAN.

Circuit Court, W.D. Tennessee.

1813.²

The plaintiff [McIver's lessee] relied upon a grant from the state of North Carolina to Stokeley Donelson and William Tyrrill for forty thousand acres of land, dated in January, 1795. On the part of the defendant a grant was introduced covering the land in contest from the state of North Carolina to John Mebane, dated in the year 1800. The defendant had no legal title under that grant; but he had been in possession of the land for more than seven years before the commencement of this suit; and it was endeavored to be shown that he took possession of it with the consent of Mebane. The beginning corner of the land called for in the plaintiff's grant was, until the year 1806, within the Indian boundary; but that part of the land on which the defendant resided was not. Seven years did not elapse between the extinguishment of the Indian title and the commencement of the present action. Two questions arose in argument: First. Whether the act of congress which prevented the running of lines and making of surveys within the Indian boundary did not prevent the statute of limitations from attaching until after the extinguishment of the Indian title. Second. Whether the defendant had such a title as would authorize him to avail himself of the statute of limitations.

Whiteside & Trimble, for plaintiff.

Mr. Grundy, for defendant.

McNAIRY, District Judge.

First. The act of congress relied upon by the plaintiff is in the following words: ‘If any citizen or other person shall make a settlement on any lands belonging, or secured, or granted by treaty with the United States to any Indian tribe, or shall survey, or attempt to survey such lands, or designate any of the boundaries, by marking trees, or otherwise, such offender shall forfeit a sum not exceeding one thousand dollars, and suffer imprisonment not exceeding twelve months.’ [2 Stat. 289.] In construing the statute of seven years' possession it has always been understood that it can never apply, nor commence running, until the person against whom it is to operate, or those under whom he claims, is invested with a legal title. Until that time, in legal language, no entry or claim could be made. And it is equally clear that if the law imposes a legal disability to bring suit the statute will not apply until the disability is removed. So, if in this case the act of congress had prevented M'Iver from prosecuting his claim, I...