MacNeil v. Lewis, 4 N.C. 80, 1 Taylor 80 (1817)

Jan. 1817 · Supreme Court of North Carolina

4 N.C. 80, 1 Taylor 80

MACNEIL against LEWIS.

No cases in relation to the entry of va cant land are bv theicS" 1779, except those which arose from the ance°ofthe land offices, In all other enterérraust*" prevail.

THIS wás a motion to award a venire facias de novo. on verc^ct of a Jury, in a case of caveat, made before Hall, J. at Bladen Superior Court. The Court ordered the venire to issue ; from which the Defendant appealed to ⅛⅛ Court;—and the question discussed here was, 1 ’ Whether the Verdict contained such certainty as would authorize the Court to pronounce judgment for either party ; or whether a venire ought not to issue. 1 J ⅛

The material part of the verdict wás, “ We were enabled to collect that McNeil had been in possession, for more ^an twenty years, of the land in dispute, by known and visible boundaries; and if there is any vacant land embraced therein, we are of opinion, that MiNeil is entitled to a preference as respects entry.” ,

Limitation3 °f whether with lour of titIeC° can have no influence m such cases, for those Acts are founded upon apresumption once existed, lost^butTn a fcaveat, both parties admit. the land to be Vacant, and the question shall a titfobe made? An or-(lei* ior ii *L;@YLh~ re facia* de no-tbct'which^61 stated caveator bada preference, as trv'°wBs -bet a sale, and Sred'onVuch verdict m fa-vour of the enterer

M'Kay, for the Appellant,

Enough appears upon the verdict to Warrant the judge ment of the Court in favour of Lewis, who alone made an entI7 °f the land, which was vacant. The only question that can arise upon a caveat is, Who made the‘first entry.^*

If a Jury, after finding a’fact, specially take upon themselves to draw a conclusion not warranted by Law, the Court, in giving Judgment, will disregard it.^† So if the issue be, whether there isa seisin, and the Jury, after some fact specially, conclude with saying that this to seisin, the Court will not regard such conclu- . , , , r , . . . sion, but wdl judge wftether the tact do amount to a seisin.^‡ l'rorn the fact °*' twerct'17 years’ possession, the Jury have concluded, that McNeil has a preference, as respects entry ’ ^ut sUc^ ls not a legal conclusion, and will therefore be disregarded.

31i Mill an, for the Appellee.

The Court will not determine a question of Law upen d verdict, unless every proper fact be found by the Jury.^* The verdict cannot be amended, although thé Counsel for both parties consent to it : for that would be to make a new verdict as to the fact not found. But the proper course in such a case is, to award a venire facias ae novo. ^† It may be admitted, that judgment cannot be rendered for M'-Neil on this finding; because it is not stated that he made an entry. But, for the same reason, it ought not to be rendered for Lewis ; for neither is it stated that he made an entry. That should have been found expressly, “■ ■andcannot be implied.^‡

* Acts 1777 & 1779.

† Priddles case, 11 Rep 110.

‡ Bro. Verd. Pl. 41.

* Lodge v. Jennings, Gil E. Rep. 255-6.

† 2 Lill. Abr. 791, B.

‡ Smith v. Foeves, Noy's Rep. 147.

Seawell, J.

delivered the Opinion of the Court:

When the Land Offices were opened, after the Revolution, every citizen of the State, by the. express words of the Act, had permission to enter vacant lands; and the only preference as to the right of entry, is specified in the 6th section of the Act, and this right grew out of the Revolution, which shut up the different offices before the bona jide settlers had an opportunity of perfecting their titles. .The Legislature, with a view of preventing a new enterer from turning out one who had entered and improved lands that he had had an opportunity of patenting, or who had seated himself with intention of entering, bnt had been disappointed by the discontinuance of the offices, enacted, that such disputes should be decided by a Jury on the premises ; but the same Act declared, that» this preference from prior entry or prior occupancy, should cease, unless such enterer or occupant should perfect his title by January, 1779. In 1779, the Legislature per-, ceiving that a difficulty had arisen in construing the Act of 1777, inasmuch as it was not declared by that Act, which should be preferred, a prior occupancy or a prior entry, an Act of that session declares, that an occupancy of seven years shall be preferred. Every other case, therefore, but those, which sprang from the discontinuance of the land-offices, remains unoperated upon by the Act; and in all others, the first enterer must prevail.

None of our Acts of Limitation can have any influence, whether with or without colour of title; for they are bottomed upon á presumption that a grant once existed, but has been lost; but in the case of a caveat, both parties admit the lands to be vacant, but are disputing as to whom a title shall be made.

The awarding the venire facias de novo, was therefore wrong, and should beset aside, and Judgment rendered in favour of the enterer.