Thompson v. England, 8 N.C. 137, 1 Hawks 137 (1820)

June 1820 · Supreme Court of North Carolina

8 N.C. 137, 1 Hawks 137

Thompson v. England.

From Burke.

IN EQUITY.

D. entered a tract of land in 1777, which T. claimed in virtue of an-improvement and occupancy: T. could not caveat the entry, because he would not take the 'oath of allegiance to the State, and, for that reason, he assigned his right to M. who was to enter the caveat at the expense of T. and in trust tor him. M. caveated and finally obtained a grant, and T. filed his hill for a conveyance. The bill is dismissed, because the acts of April, 1777, and November, 1777, ' expressly require the oath to'be taken by all persons who enter land, and T. could not, therefore, have made the entry or paveat himself; and the agreement between him and M. was an evasion of those acts, and a fraud upon the State.

The bill charged, that in 1775, one Killian was entitled to four hundred acres of land in Burke, then Rowan county, by virtue of an improvement thereon of a cabin, orchard, and ten acres of cleared and cultivated land, and sold it to Complainant for 551. paid to him, who took possession in 1776. That soon after the land-office opened in 1777, one Duckworth entered two hundred acres, part thereof, and that Complainant “not then “ having taken the oath of allegiance to this State, could “ not caveat the entry but, to prevent Duckworth from getting a grant, he applied to one M* Kenny to befriend him, and it was agreed between them, that M'Kenny should caveat the land in his own name, and at the charges of Complainant, and that the grant should issue to M* Kenny in trust for Complainant: and, “ in order to give M*Kenny the apparent right,” Complainant assigned to him the right of entry for the land, and took his bond for 250/. as the purchase money, though the same was never to be paid, and never had been paid, and was now ready to be surrendered. The bill further charged, that M( Kenny did caveat Duckworth's entry, and obtained a verdict in his favor, and judgment for a warrant to issue *‘*s name, and that Complainant paid all the expense : —That Complainant “ afterwards became a citizen of e( g^^,, an[| thereby became entitled to the land— but that M* Kenny, about the year 1780, sold or assigned his entry to one Alexander, who obtained a grant, vand sold or assigned the land to the Defendant, and that each of them had notice of the trust, and paid no valuable consideration : — and prayed for a conveyance and account, and to be let into possession.

The answer admitted the caveat and the transaction between Complainant and Kenny, but insisted that it was an absolute sale, and that Me Kenny had offered to pay the purchase money in 1778, but that Complainant refused to receive it, on account of the depreciation of the paper money. It was also insisted, that the sales to Alexander, and by him to the Defendant, were bona fide, for a valuable consideration, and without notice of any equity in Complainant, and that they had been in possession from 1781, to the time of filing the bill, which was in September, 1799.

The case was transferred to this Court under the act of 1818, and now came on for a final hearing.

Wilson appeared for the Complainant; and A. Henderson and Gaston for the Defendant.

IlAiii, Judge,

delivered the opinion of the Court:

An act of Assembly passed in April, 1777, prescribes an oath of allegiance to be taken to the State by all persons living therein. Another act, passed in November of the same year, established offices for receiving entries for claims of land in the several counties in the State, and declares, “ that it shall and may be lawful for any person, who is or hereafter may become a citizen of this State, and performs the requisites by this act required, to enter with the entry-taker of any county, a claim for any vacant lands lying in such county: — and, by the fourth section, “ every person but a guardian for an orphan, or 6i a person absent in the military service, before he shall i( enter lands, shall take and subscribe the oath of alie- “ giance and abjuration prescribed by the laws of the “ State which oath the entry-taker is to administer. It appears from Complainant’s own shewing, that at the time when the entry was made under which he claims, he had not taken the oath of allegiance prescribed by law, and which wras indispensibly necessary, before he could make an entry. This he knew very well — He was fully sensible of his own incapacity, when he applied to .M‘Kenny to caveat Duckworth’s entry, and when he clothed him with power to do so successfully, by conveying to him Killian’s improvement, which he had before purchased. ,

I am of opinion, that if he was not qualified to make entries and hold titles to land himself, he could not do it by the agency of another person. The sound policy of the times forbad it. It was entirely against the spirit and meaning of the laws. It matters not that he has since taken the oath of allegiance' — if his claim was originally invalid, that circumstance will not make it good. He will not be allowed to take his chances and then side with the strongest. For these reasons, the bill must be dismissed with costs.