Barnett v. . Woods ( 1860 )

The General Assembly of this State, at its session of 1850, passed an act entitled "An act to authorize the sale of the refused land owned by the State in the counties of Cherokee and Macon," which, in section 7, enacts as follows: "Whereas many poor persons being destitute of homes have settled upon the unsurveyed lands in the county of Cherokee, etc., all persons who, prior to 1 January, 1851, resided on said lands, or had made any improvements thereon which add value to the land, shall be entitled to a preexemption privilege to one hundred acres, to include their improvements, etc.; and upon making satisfactory proof to the agent of the Cherokee lands that he or she is entitled to the preexemption privilege, within the meaning of this section of the act, it shall be his duty to issue a certificate to such person claiming the preexemption privilege, setting forth the location of the one hundred acres claimed; and upon such certificate, it shall be competent for the persons entitled to the prexemption privilege to have the said lands surveyed at his or her own expense, etc., and to include his or her improvements, etc., and upon payment being made to the agent of Cherokee lands of one-fourth of the price of the land, and upon entering into bonds with two or more sureties, to be approved of by the agent, payable to the State in three annual installments for the remaining three-fourths, to issue to the said purchasers certificates of the purchase, setting forth the number of the tract, the district in which situated, the number of acres, and the price sold for."

Under this act of Assembly, the defendant Woods made an improvement on a portion of the land described in the said act of Assembly. He, at the time of making this improvement, resided in the State of Georgia near the State line, and the place improved was so near his residence as to be very conveniently used with his home plantation. He continued this improvement for several years, and had it in his possession in 1850, when the above-mentioned act of Assembly was passed. He soon afterwards applied to Jacob Siler, the agent of the Cherokee lands, for a certificate of his preexemption right, stating the circumstances of (430) the case. It appears that Mr. Siler had his attention directed to the question whether, being a citizen of Georgia and not having actually resided on the improvement, the defendant was entitled to the benefit of the act of Assembly, and finally decided that he was so entitled; and he, having complied with the other terms of the act, received from the said agent a certificate of his purchase, describing the location of his improvement. The plaintiff also made an improvement near that made by the defendant, and made application for a certificate according to the same provisions. This application was opposed by the defendant, and after hearing the parties, the agent awarded to the plaintiff a certificate for a preexemption right, including his improvement; and having complied with the further provisions of the act by paying one-fourth of the purchase money and giving security for the remainder, he obtained a certificate of purchase, which he had returned to the office of the Secretary of State.

The defendant, proceeding on his certificate, had his 100 acres surveyed so as to include the improvement of the plaintiff, and having otherwise complied with the provisions of the act, applied to the office of the Secretary of State and obtained a grant.

The bill charges that this location of the defendant's right was fraudulently made so as to deprive him of the benefit of his certificate; that it did not comply with another requisite of said act, which is, that such surveys should not be more than twice as long as they are broad; that the defendant had enough room to have located his right without intruding upon the improvement of plaintiff. Secondly, the plaintiff insists that, being a citizen of the State of Georgia, and never having resided on the land, and never having intended to reside on it, or to become a citizen of the State, he was not entitled to any preexemption right at all under the act referred to, and that it is unconscientious for him to insist upon a title given to him under a mistaken view of the act by the State's agent; that having been excluded by this defeasible title of the defendant, he has a right to have him declared a trustee for him as to so much of his survey as is covered by the grant of the (431) defendant.

It appeared that by running up the side of the mountain, and taking in less eligible land, the defendant might have obtained his 100 acres without taking in the improvement of the plaintiff.

The proofs as to the fraud charged by the bill are sufficiently noticed by the Court.

The prayer of the bill is for a conveyance of the land in question and for an account. Rejecting the general charges of fraud made by the bill as surplusage, the equity of the plaintiff is put upon two grounds:

1. The defendant, in locating his grant, did not observe the directions of the statute, which requires that it should be in a square or an oblong parallelogram, so as not to be more than twice as long as it is broad, but fraudulently located it in such a form as to include the plaintiff's improvement, whereas, by running up the mountain, the defendant could and ought to have located his 100 acres so as not to interfere with the plaintiff's improvement and prevent the location of the 100 acres to which he was also entitled under the certificate of preexemption which he had obtained.

It appears by the survey and plat filed as an exhibit and evidence in the cause that the allegation that the defendant located his grant so as to be more than twice as long as it was broad is not true, for in fact it is nearly an exact square, and we have this question: Admit that the defendant, by running up the mountain, could have located his grant so as not to interfere with the plaintiff, was he bound to do so? We can see no principle, either in law or equity, by which the defendant was restricted in the location of his grant, except by the requirements (432) of the statute. If he did not violate them, although he located so as to cover the improvement of the plaintiff, it was, in respect to him, damnum absque injuria. It was his folly or misfortune to have made his improvement within two or three hundred yards of the defendant, and thereby put himself; at the defendant's mercy, without making some arrangement beforehand in regard to the manner in which their respective preexemption rights should be located, for, in the absence of such an arrangement, the defendant was at liberty to locate his grant so as best to suit himself; and, provided he did not violate the requirements of the statute, he was at liberty, so far as the rules of law and equity are involved, without reference to the rules of good neighborship or the golden rule, "do unto others," etc., to locate his grant as his interest dictated, and was not obliged to run up the side of the mountain to accommodate his neighbor.

2. The defendant is a citizen of the State of Georgia, and was then, and still is, a resident of that State, so as not to be entitled, under the statute, to a preexemption right, the provisions of which statute were intended for the benefit of, and is confined to, "poor persons who are destitute of homes and have settled upon the unsurveyed lands in the county of Cherokee;" but, availing himself of a mistake on the part of the agent of Cherokee lands, in respect to the persons who fell within the meaning of the law and were entitled to preexemption rights, he procured a certificate from the said agent, under which he had the land surveyed and obtained a grant whereby the plaintiff was excluded and deprived of his preexemption right, and the equity is that it is against conscience for the defendant to take advantage of a mistake and claim the land to which he is not entitled, to the injury and exclusion of the plaintiff, who would otherwise have been enabled to locate his preexemption right and have obtained a grant for the land now in controversy.

The defendant attempts to meet the alleged equity by assuming two alternative positions, so as to put the plaintiff upon one or the other of two horns of a dilemma; that is, if the agent for the Cherokee lands had no power to issue the certificate to the defendant, then (433) the grant to him is void and the title is still in the State, so that the plaintiff has a clear legal remedy, and there is no equity involved in the case; but if the agent had power to issue the certificate to the defendant, then his action in regard to the person entitled to the certificate, being an adjudication of the question, is conclusive.

Our attention was called to this subject at August Term, 1855, when this case was before us on a demurrer. See Barnett v. Woods, 55 N.C. 199. We then gave to it some consideration, but did not come to a definite conclusion. We are now satisfied that, although the dilemma is very ingeniously put by the defendant's counsel, yet there is a fallacy in it, and the plaintiff's equity does not fall on either horn, but has a safe resting place between them.

It does not fall under the first position, for the agent of the State had power over the subject-matter — that is, "the land" — and in this particular, our case differs from the class of cases in which it is held that grants issued for land in respect to which the agents of the State had no authority to act are void; for instance, a grant issued under the ordinary entry laws for confiscated land which was not subject to entry, or for land in Cherokee County, or for land covered by navigable water, or for land in one county entered in another. See Avery v. Strother,1 N.C. 558; Strother v. Cathey, 5 N.C. 102; University v.Sawyer, 3 N.C. 98; Stanmire v. Powell, 35 N.C. 313;Ward v. Willis, 51 N.C. 185, and falls under the principle established by Edwards v. University, 21 N.C. 325, where, as the agents of the State had authority to act in respect to the land, or subject-matter, it was held that a grant, although issued to a person who was not entitled was not void, but passed the title out of the State, and the remedy of the person truly entitled was to convert the party who had wrongfully obtained it into a trustee and call for a conveyance. Nor does the plaintiff's case fall under the second position, for although the subject-matter was embraced by the authority of the State's agent and in respect to matters of detail and mere questions of fact, such as whether any improvements were made, and if (434) so, by what person, and who of several making claim to be the occupant was in fact the occupant, the decision of the agent was intended to be final, yet in regard to the proper construction of the statute and the description of persons intended to be embraced by its provisions as objects of the bounty of the State in disposing of this portion of the public domain, there is nothing to show that it was the intention of the Legislature to confer upon the agent this high judicial power so as to make his adjudication conclusive. And, indeed, if the Legislature had in express terms conferred this power, their authority so to do might well have been questioned, for the Constitution of the State recognizes and establishes this Court as a coordinate department of the government having "supreme judicial power," whose right and duty it is to decide, in the last resort, all questions of law, among which is embraced the construction of all acts of the General Assembly. In discharge of the duty thus confided and imposed upon it by the Constitution, this Court declares its opinion to be that the provisions of the statute in question confine the bounty of the State to actual occupants — i. e., persons who have settled on these refused and unsurveyed lands in the county of Cherokee. It follows that the agent of the State erred upon a question of law in awarding a certificate of preexemption right to the defendant, who was then, and still is, a citizen of Georgia, and who had no intention or expectation of becoming a citizen of this State, by reason whereof injustice was done to the plaintiff, who was then, and is now, a citizen of this State entitled to a preexemption right to the land, including his improvements, according to the certificate of the agent of the State, and is wrongfully excluded therefrom by the certificate given to the defendant and the grant which he obtained by virtue thereof, whereby the title of the State was divested. And to remedy this wrong and injustice, there will be a decree that the defendant convey to the plaintiff (435) in fee simple so much of the land embraced by the grant issued to him as is covered by and embraced in the certificate awarded to the plaintiff.

PER CURIAM. Decree accordingly.