Doe ex dem. Lovinggood v. Burgess, 44 N.C. 407, 1 Busb. 407 (1853)

Aug. 1853 · Supreme Court of North Carolina

44 N.C. 407, 1 Busb. 407

DOE ex dem. DRURY LOVINGGOOD vs. JOHN BURGESS.

A grant for vacant land, issued upon the certificate of commissioners authorised by law to act in the premises, cannot, in an action of ejectment, he impeached for fraud, mistake or any irregularity in the proceedings before the commissioners.

(The cases of Reynolds v. Flinn,rl Hay. 106; University v. Sawyer, 2 Hay. 98; Strother v. Cathy, 1 Mur., 162; Stanmire v. Powell, 13 Ire. 312, cited and approved.)

Ejectment for a tract of land situate in Cherokee county, tried before his Honor, Judge Ellis, at Spring- Term, 1853, of the Superior Court of that county. The lessor of the plaintiff having exhibited a grant from the State for the premises in question, and offered evidence that the defendant was in possession, the defendant thereupon proposed to show that the grant to the ■plaintiff’s lessor, was issued upon a certificate awarded by certain commissioners, appointed by law to issue certificates to actual occupants of land belonging to the State in Cherokee county — that said certificate was procured by a fraud and false oath on the plaintiff’s lessor — that the defendant was, under the statute upon the subject, entitled to the certificate of the commissioners — -that he had no notice of the proceedings of the board, when plaintiff’s lessor procured his said certificate, and therefore that the whole proceedings of the commissioners were void : — that the lands under the act were not subject to entry or grant, unless upon such certificate fairly obtained, and therefore the grant in evidence conveyed no title to the premises in question.

His Honor rejected the evidence, and there was a verdict and judgment for the plaintiff, from which the defendant appealed to the Supreme Court.

J. W. Woodfin, for the defendant.

J. Baxter, for the plaintiff.

Battle, J.

It was decided as early as the year 1794, in the case of Reynolds v. Flinn, 1 Hay. Rep., 106, and has been adhered to ever since, that a grant, founded on an entry made of vacant land subject to entry, cannot be collaterally impeached for fraud or defects in the entry, or irregularity in any preliminary proceeding. But when the lands are not in fact vacant and unappropriated, or when the law forbids the entry of vacant land in a particular tract of country, a grant for a part of such land is absolutely void ; and that may be shown on the trial in an action of ejectment. University v. Sawyer, 2 Hay. Rep., 98 ; Strother v. Cathey, 1 Mur. Rep., 162. On this distinction, Stanmire v. Powell, 3 Ire. Rep., 312, was decided. That was the case of a grant issuing in pursuance of a resolution of the General As-sémbly, passed at its session in 1848, authorising its location upon “ 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 was for a tract of land lying in the Cherokee country, where the lands were, prior to the year 1850, prohibited from entry by the general law; and on that account it was held in an action of ejectment to be void. But by the Act of 1850, chap. 23 and 25, grants may, under certain circumstances, be issued for lands lying in the Cherokee country, and as the grant under which the lessor of the plaintiff claims, was issued under the operation of this statute, it cannot be impeached collaterally in the manner proposed by the defendant. His Honor, therefore, properly rejected the testimony which was offered by the defendant, for the purpose of showing that it had been obtained by fraudulent meáns. The judgment must be affirmed.

PeR Cueiam. Judgment affirmed.