Opinion
(June Term, 1851.)
1. Under the act of 1842-3, ch. 36, sec. 1, the Literary Board can acquire no title of land alleged to be forfeited by a grantee from the State for nonpayment of taxes, unless some proceedings has been first had on the part of the State or its assignees, the president and directors of the Literary Fund. so as to give to the grantee, his heirs or assigns, "a day in court," an opportunity to show that the arrearages of the taxes had in fact been paid within the year.
2. An estate once vested cannot be defeated by a condition or forfeiture without some act on the part of the grantor or his heirs by which to take advantage of the condition or forfeiture, even when the words of the condition are "the estate shall thereupon be void and of no effect," which words have the same legal import as the words "ipso facto void."
APPEAL from Manly, J., at WASHINGTON Spring Term, 1849.
Trespass vi et armis, quare clausum fregit. The plaintiff claimed under Frazier and Davidson, to whose title he had succeeded, the grant having issued to them in 1797 for the land trespassed upon. The (195) plaintiff proved that the defendant in 1847 and early in 1848 entered upon the lands aforesaid and cut down and made into shingles a large quantity of lumber, and carried them away, and proved their value.
The defendant showed in evidence a grant from the State to himself, dated 8 August, 1846, for the same premises; and also a deed from a tenant in common with the plaintiff, who was not joined in the suit, dated 8 August, 1848, and further proved that the land consisted of above 50 acres of swamp land unfit for cultivation, and valuable for its timber only. He further showed that the lands had not been listed for taxation, nor the taxes paid for many years previous to 1842, nor since. The defendant insisted that the plaintiff could not recover for the reason that the title to the land at the time of the suit brought was vested in the Literary Board by virtue of the provisions of the act of 1842-3.
No proceedings were shown to divest the title derived under the grant to Frazier and Davidson. It was insisted on the part of the plaintiff that no title of the president and directors of the Literary Board or Literary Fund could be set up against their grant, because the defendant did not claim under them, nor has he shown any proceedings, or even an election, on the part of the president and directors aforesaid to divest the title derived under the grant to Frazier and Davidson. It was also insisted that the defendant was estopped to set up any outstanding title against them, because he had shown a deed for an undivided portion of the premises trespassed on from a tenant in common with themselves, and that the effect of the estoppel related back to the trespass in 1847-8.
A verdict was taken on the issues, subject to the questions raised. His Honor being of opinion with the defendant on the questions reserved, set aside the verdict and entered a judgment of nonsuit, from which the plaintiff appealed.
Heath for plaintiff. (196)
W. H. Haywood and E. W. Jones for defendant.
The defense relied on is that the title of the plaintiff derived under Frazier and Davidson, to whom the land was granted in 1797, had been divested by the act of 1842, ch. 36, sec. 1.
To this the plaintiff replies: First, supposing the act of 1842 to be constitutional, no proceeding had been taken, nor had the president and directors of the Literary Fund in any way made an election to divest the plaintiff's title by force of this statute. Second, the statute is unconstitutional.
Our opinion being very clearly with the plaintiff on the first point, we shall not enter into the consideration of the second, for the reason that we deem it disrespectful to the legislative branch of the Government to call in question the constitutionality of the statute unless the decision of the cause make it necessary to do so.
The first section of the act provides "that where a grant of swamp land had been obtained from the State, and the grantee, his heirs or assigns, have not regularly listed the same for taxation and (199) paid the taxes due thereon, they shall forfeit and lose all right, title, and interest in said land, "and the same shall ipso facto revert to and be vested in the State unless such grantee, his heirs or assigns, shall in twelve months from the passage of this act pay to the sheriff of the county in which the land lies all the arrearages of taxes due on the said lands, with lawful interest thereon from the time the said taxes ought to have been paid."
The second section provides that the land to which the State shall become entitled under this act "shall be and hereby is vested in the president and directors of the Literary Fund of North Carolina."
Admit that this act has the force of inserting in the original grant a condition that if the taxes are not paid when due, but shall at any time be in arrear, "the land shall ipso facto revert to and be vested in the State." According to the well-settled principles of law, if the taxes were in arrear at any time, the estate created by the grant would not be defeated and revert to the grantor unless some solemn act was done by which to enforce the condition, for the estate having commenced by a solemn act, viz., a grant, must be defeated by an act equally solemn, upon the maxim of the common law, "eo ligamine quo ligatur."
If a feudal tenant failed to perform the services, his estate was not defeated until the lord had judgment in a writ of cessavit. If a subject incurs a forfeiture by committing treason, his estate is not defeated until "office found." If a feofment is made on condition, and the condition be broken, the estate continues until it is defeated by the entry of the feoffor or his heirs. Coke on Lit., chapter on Conditions.
The law books teem with cases fixing the principle that an estate once vested cannot be defeated by a condition or forfeiture without some act on the part of the grantor or his heirs by which to take (200) advantage of the condition or forfeiture, even when the words of the condition are "the estate shall therefore be void and of no effect," which words have the same legal import as "ipso facto void."
In this act, after the emphatic declaration that the land shall ipso facto revert to and be vested in the State, there is the qualification, "unless such grantee, his heirs or assigns, shall within twelve months pay the taxes," etc.
This shows conclusively that it was contemplated to have some proceeding on the part of the State or its assignees, the president and directors of the Literary Fund, so as to give to the grantee, his heirs or assigns, "a day in court" — an opportunity to show that the arrearages of taxes had in fact been paid within the year.
Our opinion, therefore, is that as neither the State nor its assignees, the president and directors of the Literary Fund, had taken any proceedings or in any way signified an election to defeat the estate of the plaintiff, the estate was still in him and he was well entitled to maintain this action.
This conclusion is confirmed by the fact that the Legislature in 1850 passed an act declaring that the act of 1842 shall be applicable to those swamp lands only which have been surveyed and taken possession of by the president and directors of the Literary Fund, or their agent. Chapter 52, section 2.
Without admitting that the Legislature has the right to say what the law was, or what it is, and supposing its province is to say what shall be the law, see Houston v. Bogle, 32 N.C. 496. We are gratified to find that there is this concurrence of opinion as to the true construction of the act of 1832.
The judge below was of opinion with the defendant.
PER CURIAM. Error.
Cited: Wellons v. Jordan, 83 N.C. 377; Land Co. v. Board of Education, 101 N.C. 35; Parish v. Cedar Co., 133 N.C. 481; Brittain v. Taylor, 168 N.C. 275.
(201)