State v. Bevers

• Decision Date: 28 February 1882
• Citation: 86 N.C. 588
• Court: North Carolina Supreme Court
• Parties: STATE OF NORTH CAROLINA v. FENDAL BEVERS.

86 N.C. 588

STATE OF NORTH CAROLINA

v.FENDAL BEVERS.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Fall Term, 1880, of WAKE Superior Court, before Graves, J.

The plaintiff asked that defendant be declared trustee, and be decreed to convey title to plaintiff of a certain tract of land (situate near the city of Raleigh) in his possession, and the cause was submitted upon the following “““case agreed:” In the year 1862, John Devereux, as quarter-master for certain military forces known as “State Troops,” acting under orders issued by James G. Martin, as adjutant general of the state, agreed to purchase from Miss Temperance Lane the land in dispute, for the purpose of using the same as a camp of instruction, in order to render the said troops more efficient in carrying on a war then waged against the United States. The said Temperance Lane thereupon executed a certain paper writing, purporting to be a deed, conveying said land in fee simple to Z. B. Vance, governor of the state, which paper writing had the formal requisites of a deed, and expressed a consideration of $2500, the same being paid her in certain other paper writings, purporting to be bonds of the Confederate States. The land was immediately taken into possession and used as a camp of instruction for about the space of ______ months, when such use was discontinued, and at no time since has it been used by the state for any purpose. The instrument executed by Temperance Lane was never registered, and it is now lost. In February, 1871, the defendant entered the land, as vacant land, and after paying all fees and charges procured a grant of it in 1872, which grant has been properly registered. In 1872, the defendant procured from said Lane, for a nominal consideration, a deed to himself for the same land, which has also been duly registered. At the time of his procuring the grant, the defendant had notice of the circumstances connected with the purchase and use of the land, as herein stated. He took possession at once after the delivery of the grant to him, and has retained the same ever since.

The prayer of the complaint is that the defendant may be decreed to convey whatever title he may have acquired in the land, to the state; and also a general prayer for relief.

For the defendant it was insisted: 1. That the quartermaster, acting merely under the orders of the adjutant-general, had no authority to purchase the land for the state, and his attempted purchase was therefore void. 2. That the contract of purchase was made, and so understood by the parties, for a purpose inconsistent with the duty which the state owed to the national government, and therefore no court would lend its aid to either for its enforcement. 3. That when the state ceased to occupy the land, or use it for any purpose, it again became subject to entry, and was properly granted to the defendant in 1872. 4. That the state is estopped by her grant to defendant to deny his title.

The court below gave judgment for defendant, and the plaintiff appealed.

Attorney General and D. G. Fowle, for plaintiff .

Messrs. Battle & Mordecai, Hinsdale & Devereux and Mason & Devereux, for defendant .

RUFFIN, J.

If the land in dispute was really the subject of entry and grant, that of course puts an end to the case, and renders it needless to consider any of the other points made. We will therefore consider that branch of the case first.

To be the subject of entry under the statute, lands must be such as belong to the state, and such as are vacant and unappropriated. Bat. Rev., ch. 41, § 1. If then any one of the many grave objections, urged by defendant against the validity of the state's title under the contract of 1862, be well founded, so that the land did not, in fact, “belong to the state,” that very circumstance placed it beyond the reach of the statute, and forbade its being acquired by the defendant in the manner attempted. And besides, lands that have been once granted by the state to individual citizens, that is, cut off from the undefined public domain and appropriated to private uses, do not become vacant, within the meaning of the statute, simply because the state may in some way again acquire them, and fail to put them to any special use; or, as in this case, after having used them for a time, should wholly abandon them.

This was the reasoning of the court in Hoover v. Thomas, Phil., 184, with reference to lands that had been confiscated, and with still greater force does it apply to lands actually purchased by the state, and paid for at improved values.

It is not to be supposed that the legislature intended that lands, under such circumstances as these, should be subject to private appropriation and entry, at any moment when their actual use might be discontinued, and at the insignificant price fixed by law for the vacant and unimproved lands of the state.

The lands of delinquent tax-payers, bid in for the state, did become immediately subject to entry, and so continued to be, until the act of 1872, which ceded them to the board of education. But this was by virtue of the express provision of the statute of 1798, and the very fact that any necessity for such a statute, at all existed, tends strongly to confirm us in the opinion that the construction given to the one now under consideration, is the true one.

Our conclusion therefore is, that in no point of view could the land in controversy be the subject of lawful entry, at the date of defendant's grant; and being for land not thus subject, that instrument is void, and may be objected to in the pending action.

The rule is well established, that where the land entered is both vacant and subject to entry, objection can only be taken to the grant in some direct proceeding looking to that end; for in that case, it is not void, but only irregular and voidable. But if the land be not vacant, or, if vacant, not the subject of lawful entry, then the grant is void, and advantage may be taken of it in any action, in which the title to the land becomes involved. Hoover v. Thomas, supra.; Harshaw v. Taylor, 3 Jones, 513; Lovinggood v. Burgess, Busb., 407.

As to the estoppel insisted on: It is notorious that grants are always issued at the instance of the grantee, and upon his suggestion that the land is vacant. The state does not warrant it to be so, or the liability of the land to entry. Nor is it any fraud in the state to grant land which is not so liable; on the contrary, the statute on the subject declares it to be a fraud on her to procure a grant from her under such circumstances. And moreover, the state being a sovereign, is never estopped, but may always show the truth of any transaction undertaken in her name.

It cannot be denied, and we do not understand it to be denied in the argument, that the contract entered into in 1862,...