Opinion
(January Term, 1867.)
1. The lands granted to Henry McCulloch in 1745 are not liable to entry under the provisions of the Rev. Code, ch. 42, sec. 1.
2. A grant, under an entry of such lands in 1822, is void, and its invalidity may be shown, upon question made in an action of ejectment.
EJECTMENT, tried before his Honor, Mitchell, J., at Special Term, December, 1866, of the Superior Court of DAVIDSON.
Bragg, Gilmer and T. J. Wilson for plaintiff.
Gorrell for defendant.
The facts necessary to understand the opinion are sufficiently stated therein.
There was a verdict below for the plaintiff, and a rule for a new trial having been obtained and discharged, and a judgment given for the plaintiff, the defendant appealed.
According to the view we take of the case, it is only necessary to notice one of the points made by the exceptions of the defendant, as upon that he is entitled to a venire de novo.
The defendant's counsel requested the court to instruct the jury that by the act of 1779 no land which had been confiscated was after the passage of that act the subject of entry, and that an entry and grant of such land was void.
His Honor refused to give the instruction. In this there is no error.
The instruction asked for assumes that the land in dispute is covered by the two grants by the crown to Henry McCulloch in 1745, and his Honor, in refusing to give the instruction assumed this to be a fact.
So the only question is, was the land granted to McCulloch the subject of entry and grant, and can the grant to the plaintiff be treated as void in an action of ejectment?
By the statute, Rev. Code, ch. 42, sec. 1, no land is the subject (185) of entry and grant except "vacant and unappropriated lands." This land having been granted by the crown in 1745 to Henry McCulloch, was not vacant and unappropriated in 1822, at which time it was entered and granted to the lessor of the plaintiff. It follows, as a matter of course, that it was not the subject of entry.
We presume his Honor fell into the error, by allowing the matter to become confused and complicated by reference to certain old statutes in which, out of abundance of caution, it is declared that confiscated land is not the subject of entry; and a statute by which confiscated land is granted to the University, which statute it afterwards repealed; and the act of 1801, by which commissioners are appointed to sell all such confiscated land as had not been disposed of by the University. All of these statutes are marked in the margin of the Revisal of 1820 "obsolete," for the simple reason that it was supposed there was no longer any subject-matter for the statutes to operate upon. But the truth is, that, apart from these statutes, the land granted to McCulloch was not vacant and unappropriated; the fact of its having been confiscated certainly did not make it vacant and unappropriated, so that it should become the subject of entry and grant.
The other point, that a grant for land which is not the subject of entry is void, and the objection may be taken advantage of in an action of ejectment, is settled by numerous adjudications, the distinction being that when the land is vacant and the subject of entry, the grant is voidable, and must be vacated by scire facias; when the land is vacant, or, if vacant, is not the subject of entry, the grant is void, land advantage may be taken in ejectment. See the cases collected in Battle's Digest, title "Grant."
PER CURIAM. Venire de novo.
Cited: S. v. Bevers, 86 N.C. 591; Janney v. Blackwell, 138 N.C. 439; Berry v. Lumber Co., 141 N.C. 394; Anderson v. Meadows, 159 N.C. 408.
(186)