Reeve v. North Carolina Land & Timber Co.

• Decision Date: 05 December 1905
• Docket Number: 1,387.
• Citation: 141 F. 821
• Parties: REEVE v. NORTH CAROLINA LAND & TIMBER CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

141 F. 821

REEVE v. NORTH CAROLINA LAND & TIMBER CO. et al.

No. 1,387.

United States Court of Appeals, Sixth Circuit.

December 5, 1905

H. H Ingersoll, for appellant.

J. A Susong, for appellee.

This cause came on to be heard upon April 13, 1905. An opinion reversing the decree of the Circuit Court upon the ground of the invalidity of the complainant's grant was filed May 2, 1905. The ground upon which we proceeded as well as the facts of the case, is fully set forth in our former opinion, which was as follows: 'Bill to restrain trespass a tract of wild mountain land, valuable only for its timber, and to cancel the grant and deeds under which the defendants claim in so far as same conflict with the grant and deeds under which the complainant asserts title to the land upon which trespasses are being committed. There was a decree for the complainant, and the defendant, M. P. Reeve has appealed.

'LURTON, Circuit Judge, .

'The complainant deraigns title to the land in dispute from a grant to John Burgner, for 5,000 acres, dated November 29, 1841. The defendant deraigned title from a grant to Richard West, for 1,900 acres, dated October 3, 1843. Both grants are from the state of Tennessee. Neither party has had any such possession as to perfect a title under statute of limitations. The West grant laps upon the older Burgner grant. To what extent does not appear. The question made by the issues and decided by the court below was the single question of superiority of title. The Burgner grant is the oldest, and, in the absence of both the Burgner and West entries, is the superior title if a valid grant. The contention is that the grant to Burgner is void because issued without any authority of law.

'That grant, upon its face, recites that it issued upon an entry dated November 29,1838. By an act passed November 28,1839, it was provided that entries theretofore made might be surveyed at any time prior to September 1, 1841, and the 'further time of two years, from and after the passage of this act, to have such surveys granted;' and that 'if such surveys shall not be made and grants obtained thereon, as provided in this act, such entries and surveys, as the case may be, shall be null and void as against subsequent entries.' The time within which a grant might issue under this extension act expired November 28, 1841. Complainant's grant issued November 29,1841, one day after the expiration of the law. The West entry was, at the date of this hiatus, an existing entry junior to the Burgner grant. The fact that the Burgner grant issued upon an entry which, by the express terms of the act of 1839, was null and void, is apparent from the date of the entry recited in the grant itself. November 30, 1841, another extension act was passed, which extended the time within which all entries theretofore made might be carried into grants. But the Burgner grant can obtain no benefit from this act because it issued one day after the expiration of the act of 1839, and one day before the act of 1841 was passed.

'We need not stop to consider what would have been the effect if Burgner's grant had not issued until after the later extension act of 1841 had passed. That it would have resuscitated his entry and furnished the foundation for a grant, in the absence of any intervening rights in favor of a younger enterer, may be conceded. Blevins v. Crew, 3 Sneed, 154; Williamson v. Throop, 11 132, 14 S.W. 554; Sheafer v. Mitchell, 109 Tenn. 181, 71 S.W. 86. The plaintiff's grant can obtain no support from subsequent extension acts, but must stand or fall upon the question of the power of the state's officials to issue a grant upon an entry which, under the law, was null and void. As this is a collateral attack, it will be of no avail unless the Burgner grant is void and not merely voidable by a direct proceeding. Fowler v. Nixon, 7 Heisk. 725; Curle v. Barrel, 2 Sneed, 66. A grant of the vacant land of Tennessee must have its origin in a valid entry, and a grant which has no other basis than a void entry is void, wherever impeached, if the facts are of like dignity. Jackson v. Honeycut, 1 Overt. (Tenn.) 31; Cobb's Heirs v. Conway's Heirs, 3 Hayw. (Tenn.) 21; McLemore v. Wright, 2 Yerg. 326, Polk v. Wendell, 5 Wheat. 293, 5 L.Ed. 92; Crutchfield v. Hammock, 4 Humph. 203; Roach v. Boyd, 1 Sneed, 134; Woodfolk's Lessee v. Nall, 2 Sneed, 674.

'In Crutchfield v. Hammock, cited above vacant lands lying in one surveyor district were entered in another of which they constituted no part. A grant was nevertheless issued. The trial court instructed the jury that if the lands included in the plaintiff's grant did not constitute a part of the district in which they were entered, that the entry and grant were void. In the Supreme Court it was contended that inasmuch as the surveyor of the district of entry had actually included the lands in question in his district and placed it down upon the plans thereof, that the plaintiff had a right to enter it in that office, and that the state having issued a grant therefor, all persons were precluded from going behind the grant. To this the court replied: 'This argument cannot be sustained. Ever since the case of Polk's Lessee v. Wendell and the others, decided by the Supreme Court of the United States (5 L.Ed. 92) and (Polk's Lessee v. Wendell), reported in 2 Tenn. 433 (Fed.Cas.No. 11,251), it has been held that entries and grants are void, and may be resisted in a trial in ejectments whenever there is want of property in the grantor, or want of power in the officers appointed by the Governor to receive the entries or issue the grants. The principles of this decision have been recognized by the Supreme Court of this state in the cases of Fentress' Lessee v. Western, decided at Charlotte in 1820, not reported, and in the case of McLemore's Lessee v. Wright, decided at Reynoldsburgh in 1829, and reported in 2 Yerg. 326. In the case now under consideration, the lands in dispute, constituting a part of the Hiawassee district, were not included by the lines of the Ocoee district. The surveyor, then, in extending the lines so as to embrace it, was acting out of the sphere of the authority invested in him, and his act was void. Being void, the act cannot be construed to have made these lands a part of the Ocoee district. Not being such, the entry taker had no power to receive entries therefor, as his power las limited to the reception of entries of land in the Ocoee district; he having no power to issue grants except upon valid entries. The lessor of the plaintiff, then, had no title to the premises in dispute, and the judgment of the circuit court must be affirmed.' This case was followed in Roach v. Boyd, cited above, where it was held that an entry made in an entry office which had been closed was a nullity and 'that the grant founded upon it was void.'

'Crutchfield v. Hammock and Roach v. Boyd were affirmed and applied in Woodfolk's Lessee v. Nall, cited above. Woodfolk's Lessee v. Nall was an action of ejectment. Each party claimed the land in dispute under conflicting grants. The plaintiff's entry and grant were junior to the entry and grant of the defendant. But plaintiff claimed that, although his entry and grant were junior, they constituted the only valid entry and grant, and that defendant's grant was void. This claim was rested upon the fact that at the date of the defendant's entry there was an interval of a short time during which there was no authority of law for making an entry within that portion of the state where this land was, and that the law closing the entry office had required all claims to be presented and entries made thereon on or by a date named, or be 'forever thereafter barred.' The office was again opened. But during the interval defendant's entry was made and spread upon the entry book, and so remained after the office was again opened. Defendant's grant issued after the reopening of the office. The court, after holding that the entry did not become a good entry by remaining upon the entry taker's book, having been originally placed there in violation of official duty, and that 'nothing short of an express legislative enactment could have had the effect of legalizing the pretended entry, or making it operative for any purpose,' said: 'It is clear, therefore, that the entry in question is utterly void; and of necessity the grant founded upon it must be held void likewise. The case before us is free from all the supposed difficulties that have embarrassed the question in regard to the jurisdiction of a court of law to declare a grant void. It clearly falls within a principle long recognized in our jurisprudence as an exception to the general rule upon this subject. The case of an entry attempted to be made without or against the authority of positive law is obviously distinguishable from those cases where the entries were authorized by law, but errors or inequalities intervene in the course of proceeding. See Crutchfield v. Hammock, 4 Humph. 203; Roach v. Boyd, 1 Sneed, 135.'

'The cases of Craig's Lessee v. Vance, 1 Overt. 183; Wood v. Elledge, 11 Heisk, 611; Webb b. Haley, 7 Baxt. 602, 603, and Berry v. Wagner, 13 Lea, 594 598, have been cited as holding that an entry is not essential to the issuance or validity of grant. Craig's Lessee v. Vance seems to have been an obiter by a single judge at nisi prius. But if Judge Overton had in mind grants upon military warrants prior to the act of April 12, 1784, he was right, for it was not until the act last mentioned that there was any provision of law requiring an entry book in respect of locations under military warrants. It was, before that act, 'agreeable to law' that the surveyor should indorse upon the back of the warrant the location made by the...