Stanmire v. Powell

• Decision Date: 30 June 1852
• Citation: 13 Ired. 312,35 N.C. 312
• Court: North Carolina Supreme Court
• Parties: STANMIRE v. POWELL.

13 Ired. 312

35 N.C. 312

STANMIRE

v.POWELL.

Supreme Court of North Carolina.

June Term, 1852.

A grant, founded on an entry, made on land subject to entry, cannot be collaterally impeached, for defects in the entry, or irregularity in any preliminary proceeding.

But when the law forbids the entry of the vacant land, in a particular tract of country, a grant for a part of such land is absolutely void; and that may be shown in ejectment.

The General Assembly, in 1849, passed the following resolution: Resolved, That the Secretary of State be, and he is hereby authorized and require, to issue to Ailsey Medlin, or her heirs or assigns, for the services of he father, &c.; or his heirs or assigns, a grant or grants, for a quantity of land, not exceeding 640 acres, to be located in one body, or in quarter sections of not less than 160 acres, on any of the lands of this State, now subject to entry by law; said grant or grants to be issued on the application of the said Ailsey Medlin, her heirs or assigns, as she or they may prefer in one or four grants. 2 that the said warrant or warrants shall or may be laid, so as to include any lands now belonging to the State, for which the State is not bound for title; provided that this act does not extend to any of the Swamp lands in this State. The grant under this resolution issued for land lying in the Cherokee Country.

Held, that the grant was void, having issued for land lying in the Cherokee Country, where the lands are prohibited from entry by the general law, and where, indeed, no entry taker's office is established.

The cases of Avery v. Strother, Conf. Rep. 434, Strother v. Cathey, 1 Mur. 102 and University v. Sawyer, 2 Hay. 98, cited and approved.

Appeal from the Superior Court of Law of Cherokee County, at the Fall Term 1851, his Honor Judge SETTLE presiding.

RUFFIN C. J.

The premises lie in Cherokee County, and contain 140 acres. The lessor of the plaintiff claims title in the following manner: The General Assembly of 1848 passed a Resolution, which was ratified on the 26th of January 1849, in these words: 1. “ Resolved, that the Secretary of State be, and he is hereby authorised and required to issue to Ailsey Medlin, for the services of her father, Benjamin Schoolfield, in the continental line of the State in the war of the Revolution, or her heirs or assignee, a grant or grants, for a quantity of land not exceeding 640 acres; to be located in one body, or in quarter sections of not less than 160 acres, on any of the lands of this State, now subject to entry by law; said grant or grants to be issued on the application of the said Ailsey Medlin, her heirs, or assignee, as she or they may prefer, in one or four grants: 2. That the said warrant or warrants shall or may be laid, so as to include any lands now belonging to the State, for which the State is not bound for title: provided, that this act does not extend to any of the swamp lands of this State.” On the 25th of September 1849 a grant for the premises was issued to the lessor of the plaintiff, wherein is recited the above resolution in favor of Ailsey Medlin, and that Stanmire is her assignee, and the land is described as lying in Cherokee County, by metes and bounds, set forth in the patent and in the plat annexed thereto, and the quantity stated to be 640 acres.

The defendants admitted themselves into possession of 400 acres, part of the land granted to the lessor of the plaintiff, and they claimed title thereto as follows: It is tract No. 71, in district 6, of the Cherokee lands, surveyed for the State for sale on the 29th of May 1837, and was purchased from the Commissioners, Samuel F. Patterson and Charles L. Hinton, at the sales of the Cherokee lands on the 2nd of November 1838, at the price of eight thousand dollars, by the defendant John A. Powell; who then paid one thousand dollars of the purchase money, and gave his bond for the residue, according to the Statute. He took from the Commissioners a certificate of his purchase, endorsed on the survey, describing the land, and in 1841 he paid into the treasury the sum of $400, in part of his bond. Immediately on his purchase he entered into possession of the land, and he, and the other defendants under him, have been in possession of that parish ever since, claiming it under the purchase. By consent a verdict was taken for the plaintiff, subject to the opinion of the Court on the foregoing facts. Afterwards, his Honor being of opinion with the defendants, set the verdict aside, and, according to the agreement, gave judgment of nonsuit, but allowed the plaintiff an appeal.

No counsel on either side.

RUFFIN, C. J.

The question is, as to the validity of the grant to the lessor of the plaintiff. It is settled in this State, that a grant, founded on an entry made, where vacant land is subject to appropriation, by entry, cannot be collaterally impeached for defects in the entry or irregularity in any preliminary proceeding. But a distinction is equally well established, that, when the law forbids the entry of the vacantland, in a particular tract of country, a grant for a part of such land is absolutely void; and that may be shown in ejectment. Thus, entries within the Cherokee boundary were forbidden by the acts of 1778 and 178S, and, consequently, the grants were held to be void. Avery v. Strother Conf. Rep. 434. Strother v. Cathey, 1 Murp. 102. So, the confiscated lands were grantable only on sales by the commissioners, certified to the officers of State; and, therefore, an entry and grant thereof was held void in a suit for the land. University v. Sawyer, 2 Hay. 98. In these instances, the subjects, if one may so speak, were not within the jurisdiction or capacity of the executive officers; who were held to have transcended their powers in issuing the grants?? As the entry laws were never extended to the lands in Cherokee, but, by the acts of 1783, 1819, and 1836, the entry of those lands was forbidden, and other modes provided for the disposition of them by public sales by commissioners, the counsel for the plaintiff admitted, that this grant would be void by the general law, and relied on the resolution of 1848, as the authority for the location in...