Overton's Lessee v. Campbell
| Decision Date | 30 April 1818 |
| Citation | 6 Tenn. 165 |
| Parties | OVERTON'S LESSEE v. CAMPBELL AND LACKEY. |
| Court | Tennessee Court of Appeals |
A grant of land lying out of the military reservation, although founded on a military claim, is neither void upon its face, nor voidable by direct suit to repeal it, nor can it be attacked collaterally in ejectment.
In Error.
The facts appearing in the bill of exceptions are as stated in the opinion of Roane, J.
Whyte, J., after adverting to them, said: The same question is raised in this case as was in that of Catron's Lessee v. Charles Lowry and Alexander Lowry, which has been twice argued at Carthage, and is yet depending on an advisari. My opinion is formed in that case, and is the same that I think ought to be delivered upon the same question in this. I will therefore, for the purpose of being the more clearly understood, state the facts of that case and my opinion upon them for the governance of both so far as my opinion goes. In Catron's Lessee v. Lowry, the facts were argued and are as follows:--
The parties agree that the following are the facts in this cause. The plaintiff's title is by virtue of a grant issued by the State of Tennessee to the lessor of the plaintiff, upon an entry made in the third surveyor's district; which grant is dated on the day of , 1815, and prior to the session of the General Assembly in said year, upon an entry dated the day of , 1814; said grant covers the land in controversy, of which defendant was in possession at the date of said entry and grant, and of issuing the writ in this cause. The defendant derives his title by virtue of a grant issued by the State of North Carolina on the 7th day of March, 1796, upon a military warrant issued by said State; the title under said grant was regularly conveyed from the grantee to the defendant before the date of the entry and grant under which plaintiff claims title, and at and before those several periods the defendant was in possession of said land under said grant and the title conveyed to him. Said grant covers the land in controversy of which defendant was in possession as aforesaid. The said land now in controversy is situated about two and a half miles east of a line running south from where the Kentucky line crosses Cumberland River, as said line was run by William Christmas, the late principal surveyor of the first district in this State, in the year 1807; the eastern boundary of the reservation of lands for the officers and soldiers of the continental line of North Carolina was never run and marked by the State of North Carolina, and out of the military reservation as prescribed by the act of North Carolina, nor was the same ever marked until the same as aforesaid by the State of Tennessee, and recognized as the eastern boundary of the first district. Said land is situated about forty miles south of the Kentucky line, where the same crosses Cumberland River.
It is agreed by the parties that, on the within statement of facts, the Court may pronounce judgment as upon the finding of the same by a jury; and if it should be the opinion of the Court that, from the law arising thereon, the plaintiff ought to recover, that judgment be entered for the plaintiff for his costs and term and damages; and if, upon said facts, the law be for the defendant, that a judgment be entered for the defendant, and that he recover his costs. It is mutually agreed by said plaintiff and defendant, by their counsel, that the cause, John Catron's Lessee v. Charles and Alexander Lowry, be transferred to the Supreme Court of Errors and Appeals for said circuit, to be there finally decided upon the facts agreed by said parties, and entered upon record.
As has been stated from the bar, the question made by this case agreed has come often before the courts of this State, and has received different determinations. In this contrariety of decision, and without reference to the opinions on either side, which are entitled to the greatest respect, I shall consider the case being unsettled as res integra, and take it up as it was argued at the bar.
Two general positions have been taken: 1st. That the defendant's grant is void; and 2d. That, being void, this can be shown on a trial in ejectment.
To establish the first position, three grounds have been assumed on argument: 1st. That the State's officers had no authority to issue a grant for land upon a military claim by the Act of 1783, c. 3, section 7, lying out of or beyond the bounds prescribed by the said seventh section of the said act. 2. That the Act of 1783, c. 3, section 7, not having given such authority, it can not be considered as embraced by the Act of April, 1784, c. 14, section 7; and 3d. As certainly not authorized by Act of October, 1784, c. 19, section 7. It seemed to be admitted that, if authority is not conferred by one or other of these acts, the grant is void, a nullity itself, and pursuant to the opinion of the Supreme Court of the United States, in the case of Polk's Lessee v. Wendal and others, in 9 Cranch, 99. On the other hand, if either of these grounds failed, the deduction therefrom, to wit, that the grant is void, failed therewith.
It is first to be observed what was the object of North Carolina in these Acts of 1783 and 1784. The State of North Carolina in the war of the Revolution, in conjunction with her sister States of the Union, constituted an efficient party in carrying on that war, and in maintaining the independence which had been declared. In doing this she had men to raise in making up her quota in the general cause; and also to supply, from time to time, the deficiencies which the casualties of war produced. These troops were to pay, and money besides was wanted for many other purposes, as is usual in such cases, much beyond her supplies; at the close of the struggle, therefore, she found herself a debtor State. To discharge this debt was the object of these laws and others not yet mentioned. Her engagements were of two kinds, for land and for moneys. She contracted with her troops for the first, but not exclusively, and with her general creditor for the second. For the purpose of satisfying these different engagements, these acts were passed; or, as she has expressed it, for the redemption of specie, and other certificates, which were documents of her public debt in the hands of her general creditor, and for discharging the arrears due to the army she passed the Act of 1783, c. 2; and, to render an effectual and permanent reward to her continental officers and soldiers in her service for their signal bravery and persevering zeal, she passed the Acts of May, 1780, of 1782, c. 3, and of 1783, c. 3; and, to further the objects in view by these acts or some of them, she afterwards passed the Acts of 1784, c. 14, section 7, April session; and 1784, c. 19, section 7, October session. These acts either appropriate or authorize the appropriation of the greater part of her western lands, by her military claimants and by others who might become claimants, by complying with the terms in them prescribed. It would be unnecessary here to quote the passages,--they are known to all,--they have been the subjects of consideration for years past; and references by year, chapter, and sections will be sufficient in order to be understood. In the year 1789, North Carolina ceded the tract of country in which the land in controversy lies, together with all that which now composes the State of Tennessee, to the United States; expressly upon condition that all lands laid off, or directed to be laid off, by any act or acts of her General Assembly, for her officers and soldiers shall be insured to their use and benefit, and that of their assigns respectively, and where titles under these acts have not been perfected, the governor shall from time to time perfect them in the same manner as if this act had never been made. And all rights reserved by any act or acts, &c., &c., shall continue to be in full force in the same manner as if this cession had never been made. 1789, c. 3, sections 1, 2. The defendant in the cause is the assignee of a soldier under these acts, whose grant issued to him in the year 1792, from the State of North Carolina, by virtue of the provisions contained in the Cession Act. The plaintiff is a claimant under the State of Tennessee by grant issued to him long after the issuing of that to the defendant. Both grants cover the same land, and, before any title set up under the younger grant can be acknowledged, the elder grant must be impeached and disposed of; the question therefore necessarily turns upon the validity of the elder grant.
It is argued for the plaintiff that it must have been the understanding of the legislature of North Carolina in 1783, and her intention, that the satisfaction of her soldiers' land claims should be made within the bounds prescribed by the seventh section, and third chapter of the act of that year and not otherwise; and, in support of this, it is said, first, that the intention of the legislature is to be collected from the legislative act itself, according to certain rules of construction which the common law has adopted and laid down for the interpretation of statutes; that one of these rules is, that if an affirmative statute which is introductive of a new law direct a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner. 6 Ba. Abr. 377. That therefore the Act of 1783, c. 3, section 7, assigning the bounds for the satisfaction of the military land claims of the North Carolina line, can not be satisfied elsewhere, and the defendant's grant in ...
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