United States v. 7,405.3 Acres of Land

• Decision Date: 06 June 1938
• Docket Number: No. 4284.,4284.
• Citation: 97 F.2d 417
• Parties: UNITED STATES v. 7,405.3 ACRES OF LAND IN MACON, CLAY, AND SWAIN COUNTIES, N. C., et al.
• Court: U.S. Court of Appeals — Fourth Circuit

97 F.2d 417 (1938)

UNITED STATES v. 7,405.3 ACRES OF LAND IN MACON, CLAY, AND SWAIN COUNTIES, N. C., et al.

No. 4284.

Circuit Court of Appeals, Fourth Circuit.

June 6, 1938.

William D. Donnelly, Atty. Department of Justice, of Washington, D. C., (Julius Martin II, Sp. Atty., Department of Justice, of Asheville, N. C. and C. W. Leaphart, Atty., Department of Justice of Washington, D. C., on the brief), for appellant.

Stanley W. Black, of Bryson City, N. C., and William M. Hendren, of Winston-Salem, N. C. (Black & Whitaker, of Bryson City, N. C., on the brief), for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and HAYES, District Judge.

PARKER, Circuit Judge.

This is a controversy over the right to a fund paid into court in a condemnation proceeding, the question being as to the ownership of 55.9 acres of land in Macon County, North Carolina, claimed on the one hand by the United States as trustee for the Eastern Band of Cherokee Indians, and on the other by the Nantahala Power & Light Company. While the amount involved in this particular case is not large, as the land was valued at only $3 per acre, the questions at issue are important because of their bearing on other titles. The court below held that, although the United States, as trustee for the Indians, claimed under an older grant than the Power Company, the latter had the superior title because of adverse possession. Whether such adverse possession can avail the company under the circumstances of the case is the principal question presented by the appeal, although affirmance is asked on the additional grounds that the grant relied upon by the United States is void because not registered in the county where the land lies within the time prescribed by statute, Code N.C.1935, § 7579, and that neither the grant nor subsequent conveyances were admissible in evidence to establish title because not registered in that county prior to the institution of suit.

A preliminary question arises upon appellee's motion to dismiss the appeal, based upon the fact that no bill of exceptions was signed, nor order entered extending the time for signing bill, within forty days of the judgment, as required by rule of court. It appears, however, that order extending the time was entered during the term and that the bill of exceptions was signed within the time as thus extended; and, as the judge had complete jurisdiction over the cause as long as the term continued, he had power therein to enter the order of extension, notwithstanding the limitation of the rule. While the term continues, the rule is a "guide for the exercise of discretion, not a limitation upon the court's power". United States v. Tucker, 4 Cir., 65 F.2d 661, 663; Hunnicutt v. Peyton, 102 U.S. 333, 353, 26 L.Ed. 113; Russo-Chinese Bank v. National Bank of Commerce, 9 Cir., 187 F. 80, 86; Czizek v. Western Union Tel. Co., 9 Cir., 272 F. 223, 226. Our conclusion would, of course, be different if the term had expired prior to the entry of the order extending the period. Harris v. United States, 4 Cir., 70 F.2d 897.

The claim of the United States as trustee for the Indians is based upon a grant from the State of North Carolina to William H. Thomas, dated June 9, 1875, and registered in Swain County on May 2, 1879. The land covered by the grant lies in Macon County, which adjoins Swain, but the grant was not registered in that county until March 31, 1936, after the United States had filed answer in this proceeding. The tract here in controversy, together with 67 others, was included in the following mesne conveyances, viz.: Deed from Commissioners of the United States Circuit Court for the Western District of North Carolina and the Guardians, Commissioners and Attorneys of William H. Thomas to the Commissioner of Indian Affairs of the United States, known as the Sibbald deed and dated August 14, 1880; deed from the Commissioner of Indian Affairs to the Eastern Band of Cherokee Indians, a North Carolina corporation, dated March 26, 1902; and deed from the Eastern Band of Cherokee Indians, the corporation, to the United States as trustee, dated July 21, 1925. No possession by Thomas or the Indians was shown. The claim of the Power Company is based upon a grant from the State of North Carolina to A. P. Munday and others, dated August 31, 1887, and duly registered in Macon County on November 23, 1887. The Company connected itself with this grant by mesne conveyances and showed actual possession of the land extending over a period of twenty years following the grant.

We think it clear that title was acquired by the Commissioner of Indian Affairs for the benefit of the Eastern Band of Cherokees as a result of the grant to Thomas in 1875 and the Sibbald deed to the Commissioner of Indian Affairs in 1880. It is true that the Thomas grant was not registered in Macon County, where the land lies, until 1936, that registration within two years was required, and that, while the time for registration of grants was extended from time to time, no extension was granted beyond January 1, 1929. It is well settled, however, that under the laws of North Carolina "registration of a grant is not necessary to give it validity for the purpose of passing title". Janney v. Blackwell, 138 N.C. 437, 50 S.E. 857, 858; Pennell v. Brookshire, 193 N.C. 73, 136 S.E. 257; Dew v. Pyke, 145 N.C. 300, 59 S.E. 76; Wyman v. Taylor, 124 N.C. 426, 32 S.E. 740; North Carolina Mining Co. v. Westfeldt, C.C.N. C., 151 F. 290, 303. "Registration is, indeed, necessary to make it evidence of the title which the state has granted." Dew v. Pyke, supra (page 78). But on the admissibility of the grant in evidence, it appears that it was registered in Swain County, a county adjoining Macon, in 1879, within the period of the extension granted by statute for the registration of grants. And provision was specifically made by the North Carolina laws of 1858-1859, c. 18, and by the Revisal of Public Statutes of 1873, c. 35, sec. 11, for the registration in the proper county and use in evidence of certified copy of "any deed or writing required or allowed to be registered" and registered in an adjoining county. See Weston v. Lumber Co., 160 N.C. 263, 75 S.E. 800.¹ The Code of 1883, sec. 1253, generalized this provision and same as generalized has been brought forward in subsequent codifications of the laws. It is now section 3319 of the North Carolina Code of 1935 and is as follows:

"A duly certified copy of any deed or writing required or allowed to be registered may be registered in any county; and the registry or duly certified copy of any deed or writing when registered in the county where the land is situate may be given in evidence in any court of the state."

Little need be said as to the point that the Thomas grant and other instruments under which the United States asserted claim for the Indians were not registered in Macon County until after answer was filed. Under the circumstances here, the only relevancy of the fact of registration in the county was with respect to the admissibility of the instruments in evidence; and it is well settled under the law of North Carolina that, for the purpose of rendering it admissible in evidence, registration of an instrument may be had at any time before it is actually offered. Pennell v. Brookshire, 193 N.C. 73, 136 S.E. 257; Herbert v. Union Development Co., 170 N.C. 622, 87 S.E. 515; Brown v. Hutchinson, 155 N.C. 205, 71 S.E. 302; Hudson v. Jordan, 108 N.C. 10, 12 S.E. 1029, 1030. As said in the case last cited: "The plaintiff had the equitable title without registration, and could introduce the deed as evidence, if registered the very day of the trial."

We come then to the principal question in the case, and the one upon which it was decided in favor of the Power Company by the court below, viz.: Did adverse possession under the junior grant mature title in favor of the adverse claimants as against these Indian wards of the United States claiming under the senior grant? The answer to this question depends upon the status of this band of Indians as wards of the United States, a matter which we considered fully in the recent case of United States v. Wright, 4 Cir., 53 F.2d 300, at pages 302 to 305. After giving a brief history of the origin of the Eastern Band of Cherokees, their acquisition of lands in the State of North Carolina and their recognition as an Indian tribe under the protection of the United States, we summed up their status in the following language (page 304):

"Not only with respect to the acquisition and preservation of the title to this land, but also in practically every other way imaginable, the government of the United States from 1868 to the present day has continuously guarded and protected the interests of this band of Indians, and has done everything possible to promote their progress and development. It has supervised their contracts and instituted suits for the cancellation of contracts which were thought not advantageous to them. U.S. v. Boyd (C.C.) 68 F. 577; Id. (C.C.A. 4 Cir.) 83 F. 547. It has appointed agents to guide them in the management of their affairs. It has built schools, including a large boarding school, and provided teachers for the education of their children. It has provided an experienced farmer to go among them and teach them the arts of agriculture. It has provided a hospital for the care of their sick, and has made provision for the care of their deaf, dumb, blind, and insane. It has provided a physician and a field nurse to go among them and care for the sick in their homes. It has furnished food and clothes for their school children, and has made allowances to members of the tribe to aid in their support. In other words, it has for more than sixty years treated them in all respects as wards of the nation, and has expended in recent years more than $100,000 annually for their support. It appears that for the fiscal year 1930 the appropriation for...