Oliver v. Pullam

• Decision Date: 01 January 1885
• Citation: 24 F. 127
• Parties: OLIVER v. PULLAM.
• Court: U.S. Court of Appeals — Fourth Circuit

24 F. 127

OLIVER v. PULLAM.

United States Circuit Court, W.D. North Carolina.

May Term, 1885

Jones &amp Hardwick, for plaintiff.

P. J Sinclair, for defendant.

DICK J.

This case is submitted for determination upon briefs and a statement of facts agreed upon by the counsel of the parties. Both parties claim the land in controversy from the state under grants which are conceded to be regular in form. The grant of the plaintiff was issued July 13, 1846, and he has never had actual possession of any part of the lands included in the grant of defendant. The grant of defendant is dated twenty-first of December, 1847, and he has had continuous possession of that part of the land included in both grants and has cultivated, and exercised other acts of ownership over the same, from December, 1869, to the commencement of this action. The respective grants contain other lands besides those in controversy; and this case presents questions of law arising from lapping of grants, which have been frequently considered in the courts of this state. The senior grant conveyed the title of the state to the plaintiff, and he is entitled to recover in this action, unless he has lost his remedy by laches, and the lapse of time specified in the statute of limitations of this state.

The defendant pleads the statute, and insists that his actual adverse possession, under colorable title, for more than seven years, under known and visible boundaries, constitutes a perpetual bar to the claim of the plaintiff. The plaintiff, in his reply, insists that the defendant's grant and actual possession does not constitute the colorable title and adverse possession required by the statute, as such grant is void,-- being founded upon 'a fraudulent entry, and was obtained by false and fraudulent practices. ' No regular demurrer was filed to this reply, but in the case agreed the defendant admits the truth of the allegations for the purposes of this action, and insists, as by demurrer, that they are irrelevant and immaterial. A grant is the conveyance by which the state passes its title to portions of the public lands, and the law has made various provisions as to the manner in which such transfer of title shall be made. When the proper officers of the state have authority and jurisdiction to issue a grant for public land, it cannot be collaterally impeached for defects or irregularities in any preliminary proceeding, or for fraud in obtaining it; because it is the act of the sovereign, tested by the great seal, and stands on the footing of a record, and is valid until set aside by a direct legal proceeding for that purpose. But where the state had previously granted the land, or the officers had no authority, or exceeded their jurisdiction, the grant is absolutely void, and may be so treated in an action of ejectment. Harshaw v. Taylor, 3 Jones, Law, 513; Smelting Co. v. Kemp, 104 U.S. 636.

The distinction between voidable and void grants has been clearly defined in the decisions of the supreme court of this state, in cases relating to such matters. If the land is vacant, and the subject of entry, the grant can only be impeached by a direct proceeding for that purpose. When the land is not vacant, or the subject of entry, the grant is void, and advantage may be taken in an action of ejectment. Hoover v. Thomas, Phil. Law, 184. If a junior grant covers in part land which had been previously granted, (as in this case), it will be good for the land comprehended in it which had not been granted. Hough v. Dumas, 4 Dev. & B.Law, 328. As to the part previously granted, the junior grant is void, and does not in any way hinder the senior grantee from asserting his title in an action at law, brought within the period required by the statute of limitations.

If the junior grant was obtained by fraud, with knowledge of the previous grant, and the first grantee thinks himself aggrieved by such cloud upon his title, he may institute legal proceedings to have the junior grant vacated; and if such fraud and knowledge are clearly established by evidence, then the court in which such proceedings are pending may vacate the junior grant in toto. Until such judgment has been rendered, such junior grant is valid as to lands not included in the senior grant. Hoyt v. Rich, 4 Dev. & B.Law, 533.

The doctrine of the common law, so strongly urged in the argument of the plaintiff's counsel, that 'fraud vitiates every species of contract,' is true in a general sense, but it must be reached in the regular and authoritative manner provided by law, and by parties entitled to institute such legal proceedings.

The plaintiff in his reply alleges that the grant of the defendant is void because it was founded upon 'a fraudulent entry, and was obtained by false and fraudulent practices. ' This is not good pleading. It is well settled that a grant cannot be collaterally impeached in an action of ejectment for any antecedent fraud practiced upon the state. A good allegation in pleading is a statement of fact which, if denied, will form a proper issue, and which the rules of law will allow to be proved on the trial. Anything which is not allowed to be proved, cannot be properly alleged, and may be struck out on motion. If a regular demurrer had been filed to the reply in this case, it would not have admitted the truth of the allegations of fact and the conclusions of law as stated. A demurrer only admits the facts that are relevant and properly pleaded, and never admits conclusions of law or matters of inference and argument, however clearly stated. In the case agreed, the counsel of the defendant admits the truth of the allegation for the purposes of this action, but insists, as by demurrer that they are...