Hill v. Jackson, 31 N.C. 333, 9 Ired. 333 (1849)

June 1849 · Supreme Court of North Carolina

31 N.C. 333, 9 Ired. 333

James Hill vs. Henry Jackson.

The passage of the several Acts of Assemby, enlarging the time, within which grants shall be registered, makes them good and available by relation back, from the time when they are dated, as much so as if they had been registered within two years.

The ease of Scales v. Fewell, 3 Hawks 16, cited and approved.

Appeal from the Superior Court of Law of Randolph County, at the Spring Term 1849, his Honor Judge Dick presiding.

This is an action of trespass quare clausum fregit. The plaintiff claimed to hold the land in question under a grant, issued in 1843, to Jesse Walker and Marsh Dor-, sett. The defendant claimed to hold under a grant issued in 1783 to Absalom Tatum and William Moore, which also covered the land in dispute ; and, to sustain his allegation, offered in evidence the copy of a grant issued by the Secretary of State to Tatum and Moore* which was registered by the Register of Randolph County during the trial. This evidence was objected to by the plaintiff’s counsel, because the copy offered did not appear to be full and complete ; and, if complete, it had not been registered within the time prescribed by law ; and, if valid after registration, it could not by relation extend back, so as to defeat the plaintiff’s title under Walker and Dor-sett. The Court admitted the evidence, and instructed the jury, that the copy, read in evidence, from the office of the Secretary of State, did relate back so as to defeat any title in Walker and Dorsett, derived under their grant. ■

The defendant further introduced evidence, showing that he entered upon the land under a lease from the de-visees of William Moore and the heirs of the other deceased devisees. The plaintiff entered into a vacant house upon the lands in question, but no evidence was offered, tending to show, that he entered as the tenant of Walker and Dorsett, or, in any manner, claimed under their authority ; and the Court so instructed the jury.

The presiding Judge instructed the jury, that, inasmuch as no connection was shown between the plaintiff and Walker and Dorsett, the former would not in law be in possession of all the lands contained in the Walker and Dorsett grant, but only of the house and land in his enclosures ; and, if they believed, that no trespass was committed on these, the defendant was not guilty. A verdict was rendered for the defendant.

Rule for a new trial — first, because the Judge erred in receiving as evidence the copy of the grant from the Secretary’s office.

Secondly — Because of error in instructing the jury, that the registry of the copy of the grant from the Secretary’s office related back, so as to defeat any title derived by Walker and Dorsett under t-heir grant.

Thirdly — Because of error in instructing the jury, that' there was no evidence that the plaintiff entered, under Walker and Dorsett, inasmuch as it had been proved, that an angry altercation took place between the defendant and Marsh Dorsett, at which the plaintiff was not present, in which Dorsett was complaining of the ‘defendant’s conduct and threatened him with a suit.

Rule discharged — judgment for the defendant, and appeal.

./. T. Morehead, for the plaintiff.

No counsel for the defendant.

Nash, J.

The first objection is, that the copy of the grant to Tatum and Moore, which was offered in evidence by the defendant, was incomplete, and had not been registered in the County of Randolph, within the time prescribed by law. The first branch of the objection is not true in point of fact — the copy is complete. As to the second branch, the facts were, that the copy was not registered until the sitting of the Court. The grant is dated in 1783, and ought by the terms of the act of 1783 to have been registered within twelve months from its date. But the Legislature has uniformly, with one omission, passed laws at every session to enlarge the time. The omission alluded to, was at the session of 1819, but it was supplied at the session of 182t, and care has been taken, that there should be no such failure since.. The copy of the grant, offered in evidence, was registered in Randolph County, in the month of March, 1849 ; and at the preceding session of the Legislature, held in 1848, the usual act for prolonging the time for registering grants was passed ; so that, in truth, the grant was reg» istered in Randolph County within the time prescribed bylaw; and, when.so registered, the'act of 1836, eh* 42, sec. 24, makes it evidence.

The second objection cannot avail the plaintiff. The passage of the acts, to which reference has been made, prolonging the time, within which grants shall be registered in the County, has practically the effect of rendering nugatory that clause in them ; and must continue to have that effect, as long as the Legislature shall continue to pass them. I mean that it renders nugatory the effect, that the neglect to register the grant, within a limited ■time, might have. The grant then may be registered at a.iiy time, if, at that time, there be any law authorising the act, which is not denied in this case. If the registration of the grant was legal, then it must have the 'effect of relating back; this is a necessary consequence» and daily recognized in our practice. Scales v. Fewel, 3 Hawks. 16. There is scarcely one grant in a hundred, which is registered within two years from its date. Nor is it even thought necessary to examine into the date of its registration. It can make no difference, that the grant in this case was not registered before the action was brought. If the intention of the registry acts is to give notice to the citizens of the County, what lands are vacant, and if it be desirable, that such notice should be given, the policy of the continuing acts may be well questioned, but our duty is to execute the layv as we find it.

The third objection is not sustained. There was no evidence, that the plaintiff entered as the tenant of Walker and Dorsett, or, in any manner, claimed under their authority. The altercation between the defendant and Dorsett was entirely irrelevant.

We see no error in the opinion of his Honor on the points brought here.

Per Curiam. Judgment affirmed.