Smythe v. Henry

Decision Date11 February 1890
Citation41 F. 705
PartiesSMYTHE v. HENRY et al.
CourtU.S. Court of Appeals — Fourth Circuit

W. H Malone and Theo. F. Davidson, for complainant.

Cobb &amp Merrimon, Jones & Shuford, and Henry Hardwick, for defendants.


When the pleadings and proofs in this case were read at the hearing, I was so well satisfied that the complainant was entitled to the relief that he prayed for that I declined to hear any arguments from his counsel. The argument of the counsel for the defendants was so learned, able, and logically arranged, and was urged with such earnest confidence, that I concluded to postpone my decision until I had time to examine the authorities cited, and give the case my most mature consideration. The counsel on both sides have furnished me elaborate arguments and briefs, but, from the views which I take of the questions of law and fact involved I think that I can properly determine the rights of parties upon the pleadings, the documentary proofs, and the uncontroverted evidence, without attempting to ascertain the preponderance in the conflict of testimony, or considering fully the many questions of law discussed in the arguments of counsel.

The first defense insisted upon by the counsel of the defendants is that the bill of complainant does not show such a case as to entitle him to equitable relief; for, as to the matters alleged, he has a complete and adequate remedy in a court of law. I am of the opinion that the allegations in the bill, and the facts and circumstances developed by the proof, made a resort to a court of equity highly expedient and proper. I will give my reasons for so believing in a subsequent part of this opinion, when I have decided the questions of law involved, and stated my conclusions as to the uncontroverted matters of facts presented in the evidence.

Both parties claim to have derived title to the land in controversy under a grant of the state to the Cherokee chief Junaluska, and I will first consider the nature and purpose of such grant. An act of the state legislature, entitled 'An act in favor of the Cherokee chief Junaluska,' was duly enacted and ratified on the 2d day of January, 1847. The first section conferred upon him all the rights, privileges, and immunities of a citizen of the state. The second section enacted 'that the secretary of state be authorized and directed to convey unto the said Junaluska in fee-simple the tract of land in Cherokee county, in district No. 9, tract No. 19, containing three hundred and thirty-seven acres; which said land the said Junaluska shall be empowered to hold and enjoy, without the power to sell or convey the same, except for the term of two years, from time to time: provided, nevertheless, that he shall have full power to dispose of the same by devise only. ' The third section directed the treasurer of the state to pay the said Junaluska the sum of $100. The fourth section gave the act full force and effect from and after its passage.

This was clearly a donation act, and from its passage vested in Junaluska a title to the land specifically described, and directed to be conveyed by a grant to be executed by the secretary of state. The grant was duly executed on the day of the passage of the donation act. The execution of the grant was a mere ministerial act of the officer charged with the duty to be performed as directed by the legislature. The grant was additional and convenient evidence of the title to the land previously conveyed by the donation act, and related back to the inception of the rights of the grantee, and could not change the title as originally conferred. A legislative grant that proceeds more immediately from the source of title is entitled to greater weight and dignity than a grant executed by a ministerial officer acting under the provisions of the statute. Morrow v. Whitney, 95 U.S. 551; Barney v. Dolph, 97 U.S. 652; Whitney v. Morrow, 112 U.S. 693, 5 S.Ct. 333.

The inducement, object, and purpose of the legislature in bestowing the land upon Junaluska was clearly expressed in the explanatory clause that preceded the first section of the act. He had rendered important military service to the United States in the last war with Great Britain. He had returned from the Indian country beyond the Mississippi, and had expressed a wish to become a resident and citizen of his native state. The benignant purpose of the legislature in the bestowal of its bounty was to provide a permanent home and farm for its old and worthy beneficiary, and to guard his inexperience in business matters against the designs and crafts of shrewd and selfish white men, and protect him from temptations which might induce him to make an improvident disposition of his property, and thereby reduce himself and family to indigence and want. We may well infer that the gift of $100 was intended to meet necessities that might arise before he could make a crop the ensuing year.

It is insisted that the restriction imposed upon the rights of alienation by the second section of the act is inconsistent with the spirit and purpose of the first section, which conferred upon Junaluska all the rights, privileges, and immunities of citizenship. When a state conveys land as a bounty, it can impose any restriction deemed proper upon the grantee. When we consider the condition of that new citizen we may well conclude that the restriction was not unreasonable, but was rather just, wise, and beneficent. Junaluska belonged to a subordinate race. He had spent most of his life with untutored Indian tribes beyond the Mississippi, and had returned in his old age to the former hunting grounds of his fathers. He had little experience in the ways and transactions of civilization, and might well regard the white man as his superior in intelligence, wisdom, and power. He knew comparatively nothing of the value of land for agricultural purposes, and of the benefits and pleasures of a permanent home. Subsequent events soon manifested the wisdom of the legislature in placing restriction upon the alienation of its bounty; for, in 20 days after the date of the grant, Junaluska was induced to execute a deed to S. P. Sherrell for the land, upon the fictitious consideration of $1,500 expressed in the deed; and under that deed the defendant herein claimed title, and instituted an action to recover possession from a bona fide purchaser for full value.

The counsel of defendants further insist that the condition of non-alienation imposed upon the fee-simple conveyed in the donation act is repugnant to the nature of the estate, and is therefore void. That old and well-settled rule of the common law does not apply to this legislative grant. The sovereign power of the legislature is superior to the immemorial rules and usages of the common law. The legislative power of the state is restricted only by the state and federal constitutions, and it may change the rules of the common law whenever such alterations are deemed best for the general welfare, and do not conflict with the constitutional rights of citizens. Munn v. Illinois, 94 U.S. 113. Such restricted operation of the common law was expressly declared by statute in 1715, which is still incorporated in the statute law of this state. 1 Code N.C. Sec. 641.

I am of opinion that the manifest intent of the legislature was to keep the title to the land conveyed by grant in Junaluska during his life, so that it could not be divested by his own act, or by any of the presumptions or rules of law that usually apply in cases of laches, forfeiture, reverter, estoppel, and color of title. Junaluska had a fee-simple that could not pass from him in any way, except by devise or descent. He could transfer the possession of the lands by a lease, from time to time, of two years. The power of alienation regulated by statute must be strictly complied with, so that the policy and object of the statute may not be defeated. 1 Story, Eq.Jur.Secs. 96, 178.

With this view of the law, it is unnecessary for me to consider the evidence as to whether the Sherrell deed was fraudulent on account of the gross inadequacy of the real consideration, concealed under the false consideration expressed in the deed, or the constructive fraud arising from long concealment, and failure to register the instrument, and his non-claim for more than 25 years while living in the vicinity. This evidence will be referred to when I come to consider the question of equitable jurisdiction, founded upon alleged actual and constructive fraud.

I will now consider the Sherrell deed in the light of an honest transaction. This deed of bargain and sale conveyed only the interest in the land which the bargainer had a right to convey. It gave rise to no cause of forfeiture, and did not entitle the state to enter for the breach of any condition, express or implied. No such provision was made in the donation act or the grant. Ruch v. Rock Island, 97 U.S. 693; Grinnell v. Railroad Co., 103 U.S. 739. We will now suppose that this lease by bargain and sale conferred a term of two years upon Sherrell, and transferred possession without entry. Sherrell was lessee, and Junaluska was lessor with a reversion in fee. When Sherrell made Junaluska a lessee for the whole term, it amounted to an assignment of the term to Junaluska, and at once became merged in the fee, and Sherrell was only entitled to the rent reserved. This was the result, as there was no expressed intent that there should be no merger. But suppose there was no merger, then, when Sherrell's term of two years expired by effluxion of time, Junaluska having the reversion in fee and the actual possession, no entry was necessary to reinvest him with the unincumbered fee.

It is insisted that, as the deed to Sherrell purported to...

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    • U.S. Court of Appeals — Fourth Circuit
    • November 22, 1907
    ...McCreery (Judges Goff and Jackson sitting together) 66 F. 834, at pages 842, 843, and in Miller v. Ahrens, 150 F. 644. See, also, Smythe v. Henry, 41 F. 705. conclusion follows that this bill of review cannot be maintained for the alleged errors of law. As to the supplemental matter, it is ......
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