Neal v. President & Trs. of E. Tenn. Coll.
| Decision Date | 31 March 1834 |
| Citation | 14 Tenn. 190 |
| Parties | NEAL AND RAGSDALE v. PRESIDENT AND TRUSTEES OF EAST TENNESSEE COLLEGE and others. |
| Court | Tennessee Court of Appeals |
This is a bill of review. The original bill was filed on the 18th November, 1828. It alleges that William Neal, of North Carolina (the brother of complainant Neal), was a lieutenant in the continental line of said state, and was entitled, by the laws of North Carolina, to a land warrant for 2,560 acres of land for his military services; that he died sometime previous to the year 1784, without issue, leaving, as his heir at law, complainant Neal, his elder brother; that a military warrant for 2,560 acres was issued by the state of North Carolina to the University of North Carolina; that this warrant issued for the services of said Neal, and was issued to said university under a supposition that said Neal had died without heirs; that said warrant was transferred by said university to the president and trustees of East Tennessee College; that on December 26, 1822, the president and trustees of East Tennessee College caused an entry, No. 949, to be made, by virtue of said warrant, in the surveyor's office of the tenth district, which entry was surveyed December 10, 1823, and that some short time thereafter a grant issued to said president and trustees. The bill also states that defendant McLemore was the locator, and a part of said land had been vested in him for his locative services, etc.; that complainant Ragsdale has purchased from complainant Neal his interest in said land. The bill prays that the legal title may be vested in the complainants.
The defendants, by their answer, admit that a warrant for 2,560 acres was issued to the University of North Carolina, on the 5th September, 1821, for the military services of a man called William Neal, and that said warrant was transferred to the East Tennessee College, in pursuance of the laws and ordinances of North Carolina and Tennessee. They also admit the entry and issuance of the grant as charged in the bill. The defendants further insist that the complainants' equity, if ever they had any, which is denied, is barred by the act of limitations; that more than seven years had elapsed from the time the warrant was issued by the secretary of North Carolina (at which time, if ever, the complainants' right, or cause of action, accrued) before this bill was filed. They also rely upon the statute of three years.
The answer also insists that the warrant was adjudicated by the commissioners appointed by law to investigate these claims; that it was adjudged valid by them in the hands of the defendants; that the commissioners, under the statutes of this state, were constituted a court of special jurisdiction, and that their decision was conclusive upon the question of right to the warrant. They also required the complainant to prove that he is the heir at law of the soldier.
The proof in the cause clearly established that the complainant Neal was the heir at law of William Neal, the soldier for whose services the warrant issued. It was also proved that the warrant issued the 5th September, 1821; and the only question argued at the bar was whether the complainants' right was barred by the act of limitations.
The decree of the chancellor upon the original bill was in favor of the complainants, except for one-fourth part, which was adjudged to McLemore, and others, for their locative interest. The decree set out all the facts; upon this decree this bill of review was filed. Upon the hearing of the bill of review, Chancellor Reese reversed the original decree, and rendered a decree in favor of the original defendants, upon the ground that the claim of the complainants in the original bill was barred by the act of limitations. From this decree the defendants in the bill of review, Neal and Ragsdale, appealed to this court.
D. Craighhead, W. E. Anderson, J. P. Clarke, for complainants in the bill of review.
G. W. Gibbs, for defendants.
Whether the act of limitations of 1819, ch. 28, § 2, operates in bar of a claim to land before an entry is made on the warrant, depends on the nature of the complainant's title, and his right to sue in law or equity to enforce his claim. Much confusion and not a little perplexity has prevailed among members of the legal profession, and with the courts of justice, in coming to a conclusion what description of property a land warrant is. That it is a hereditament, and descended to the heir, we have always holden; but, from our habits of dealing for it as property, the land warrant has been thought as disconnected from the land, and not as conferring a vested right to land on the owner until located. In itself it has no value other than as evidence of title; in this respect it stands on the foot of other title papers. Is it evidence of a vested right to land in the holder? If so, then the land descends, and the evidence of title with it as an incident. This is manifestly the case, as will be seen when we look to the circumstances that gave rise to the land warrant.
An act of 1780, now lost, but referred to in the 7th section of the act of 1782, ch. 3, promised a reward in land to the officers and soldiers of the continental line in the service of North Carolina. The act of 1782 provided that 640 acres should be laid off to each soldier who had served to the end of the war, and to the officers in proportion to grade.
The act was a contract, on the part of the state, with the officer and soldier to pay them the land out of a certain district to be laid off by commissioners. Tatum, Shelby, and Bledsoe were appointed by the state of North Carolina, and the officers were to appoint one or more on behalf of the army. The district was laid off, and has since been extended to the Western District. The acts of 1783, ch. 3, and 1784, chs. 15 and 16, were designed to carry into effect the obligations imposed by that of 1782. The soldier paid for the land in services, and had a vested right in the military district, as tenant in common with the state and his fellow soldiers. Ivey v. Pinson, 1 Yer. 309, 324, 359.
The act of 1783, ch. 2, provided for selling the western lands out of the military district at £10 for each 100 acres. When the money was paid, of course the purchaser became a tenant in common with the state, and had a vested right to the land he had paid for. In this case the land purchased was described by an entry, but if that entered had been previously sold by the state, the enterer could go elsewhere. So in the soldier's case. If he entered on lands previously appropriated, the surveyor could, without another entry, survey the claim on any vacant land. 1784, ch. 15, § 7.
By the act of 1783 it was necessary the soldier should serve to the end of the war, etc., to be entitled. As evidence that he had performed the duty, the warrant was issued to him. It was a title bond on the state for the quantity of land called for. The state held as trustee. Nothing was wanted but partition to give the soldier the substance of his contract. See Cession Act, 1789, ch. 3, second condition. The entry with the surveyor, the agent of both parties, effected the partition, but did not give title (this previously existed) more than if A sold B 100 acres of a 1,000-acre tract, to be selected by their mutual agents. Before the selection they were tenants in common; after, A held the naked legal title for B to the 100 acres. The state stands on no different ground from an individual (3 Cranch 70;1 Yer. 339), and may in substance be decreed against. 1 Yer. 309, 324.
Certain rules prescribing the mode of selection by entry and survey were necessary for the claimant to pursue to have his land set apart to him in severalty; if he pursued these requisites, the state could not resist; the courts would enforce the performance of the trust. We are in the daily practice of compelling the secretary of state to issue warrants by mandamus; the surveyor to receive an entry to survey, or do any other prescribed duty. So we compel the register, secretary, and governor, if need be, to issue the grant and vest the legal title. The idea of disobeying has never occurred to the public officer. The mode of communicating title is a matter of form and detail, to effectuate a preëxisting trust. The state of North Carolina might have made partition and surveyed off the lands of the soldiers without ever opening a land office, and confirmed the partition by act of assembly. The distinguished soldier and patriot General Greene was not of the North Carolina continental line; but, with masterly ability as commanding general, he had wrested the Carolinas from the hands of the enemy, in consideration of which distinguished services North Carolina allotted for and gave him 25,000 acres of land in the military district, to be laid off by the commissioners, Tatum, Shelby, and Bledsoe. 1782, § 10. They caused it to be laid off. This grant has received the sanction of the courts of justice, and it is our pride and boast that it has drawn to us a part of his family, and now furnishes an opulent home for his accomplished daughter. The act of April, 1784, ch. 18, was only a recognition of the partition made by the commissioners, or rather by Gen. Robertson, on their behalf. The act of 1782 vested the title in common. Every officer and every soldier had in substance as good a right in common to the quantity promised him, when he had performed the stipulated service, as had Gen. Greene. The soldier's vested right was equally clear. Thus stood the obligations of Carolina before the warrant issued. But it was an obligation resting upon the statutes of 1782, 1783, and 1784. The individuals actually entitled were not and could not be pointed out by the statutes. To ascertain this was the next step. North Carolina took upon herself to grant the officer, the soldier, or his heir or assignee. 1782, ch. 3; 1789, ch. 3. To...
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