Doe on the demise of Cooper v. Gibson, 51 N.C. 512, 6 Jones 512 (1859)

Aug. 1859 · Supreme Court of North Carolina

51 N.C. 512, 6 Jones 512

Doe on the demise of CORNELIUS COOPER v. SARAH GIBSON.

The title to the unsold Cherokee lands, in the county of Haywood was, by the act of 1835, vested in the justices of that county, and where their commissioner, whose duties and powers were limited, by the resolution of the Court appointing him, to three months, executed a deed for a portion of said lands, at the end of three years, it was Held to be inoperative and void.

Ejectment, tried before Manly, J., at the last Term of Jackson Superior Court.

Thé General Assembly, at its session of 1835, by an act duly passed, made it, the duty of the Governor to convey to the Justices of Haywood county, certain lands therein described, commonly called the Cherokee lands, remaining unsold within the limits of the county; they, the said justices, complying with certain terms therein required. With a further provision, that the said justices should dispose of said lands for the use and benefit of said county, and the mode of doing so.

On the 10th of January, 1837, his Excellency, Edward B. Dudley, the Governor of the State, by deed reciting this act of Assembly, and reciting also, that it had been made to appear to him by the certificate of the public Treasurer, that the conditions required by the act had been complied with, did “give and grant unto the said Justices of Haywood county in trust for the said county, any tracts of land, commonly called Cherokee land's, remaining unsold within-the limits of the said' county.”

At a County Court of Haywood county, held on 19th of' October, 1836, a majority of the' justices being present, several orders and resolutions were adopted relative to the sale- and disposition of the lauds granted by the said act, among-others, was one appointing “a commissioner with power to-dispose of said lands according to the act of Assembly on the* subject of Cherokee lands,” and further, as follows:

“ Kesol/ued, That the commissioner shall close all his business, in three months from the date of his commission, and that his appointment shall cease at that time.”

Another resolution of the Court at the same time provided? as follows:

“ Kesolved, That at the expiration of three months, the commissioner shall pay over to the clerk of the county court, or-county trustee, or to one appointed for that purpose, all money in his hands, received for said lands,”

The Court then proceeded tO' appoint “ Uinia-n Edmonston commissioner, to dispose of the Cherokee lands, who- gave bond and security for his performance in- office.”

Mr. Edmonston proceeded to act under this authority, and having sold to Isaac Sellars, the land in question, gave him this certificate: “I certify, that agreeably to-an act of the General Assembly of the State, entitled “An act prescribing the mode of surveying- and' selling the lands lately acquired by purchase from the Cherokee Indians,” Isaac Sellars was the purchaser of section Ho. 19, in district 2, bounded-as follows : (describing it,) containing sixty-two acres, represented by the above plat. Witness my band, this 22cl of- December, 1836. (Signed) U. Edmojststojs, Commissioner.”

On the 19th day of February, 1840, Uinian Edmonston and John Killian, reciting the act of 1835, and the grant of the Governor to the Justices of Haywood, and reciting “whereas, the justices of the said county, &c., did “at the October session, 1836, appoint Hinian Edmonston and John Killian, commissioners to sell and convey said lands,” and that they two did make public auction thereof, and that Isaac Sellars became the highest bidder for the land in question, and did pay the said purchase money, they as commissioners did make and deliver to the said Isaac Sellars, a deed in fee-simple, for the said land.

Sellars entered, and conveyed to the lessor of the plaintiff, and the question is whether the deed to him is sufficient to pass the land. His Honor intimated an opinion that it was not sufficient, whereupon, the plaintiff submitted to a nonsuit and appealed.

Shi/pp and Merriman, for the plaintiff.

Gaither, for the defendant.

Pearson, O. J.

We concur with his Honor in the conclusion that the plaintiff failed to show title in his lessor. The grant executed by the Governor, in pursuance of the act of Assembly, passed in 1835, vested the title of the land in the justices of the county of Haywood ; and if we supposed that the deed of the commissioner, provided it had been executed within the three months, to which his authority was limited, would have had the effect, in law, to pass the title out of them, still, there is no ground upon which such effect can he given to a deed, executed by him three yea/rs after his authority and powers, as commissioner, had expired. So, his deed under which the plaintiff claims, was inoperative for the want of power. The title is still in the justices of the county of Haywood ; and we may be at liberty to suggest that the defects of title of this, and other like cases, can only be cured by an act of the Legislature, providing some mode in which the title may be passed.

Per Curiam, Judgment affirmed.