Preston v. BrowderAnnotate this Case
14 U.S. 115 (1816)
U.S. Supreme Court
Preston v. Browder, 14 U.S. 1 Wheat. 115 115 (1816)
Preston v. Browder
14 U.S. (1 Wheat.) 115
The Act of Assembly of North Carolina passed November, 1777, establishing offices for receiving entries of claims for lands in the several counties of the state, did not authorize entries for lands within the Indian Boundary, as defined by the Treaty of the Long Island, of Holston, of July, 1777. The act of April, 1778, is a legislative declaration, explaining and amending the former act, and no title is acquired by an entry contrary to those laws.
This was an action of ejectment commenced by the plaintiff in error in that court. On the trial of the cause, the plaintiff produced and read in evidence an entry made on 25 February,
1778, in the name of Ephraim Dunlap, for 400 acres of land in the point between Tennessee and Holston Rivers. Also a grant to said Dunlap, issued in virtue of and founded upon said entry, under the great seal of the State of North Carolina, dated 29 July, 1793, which grant was duly registered. The plaintiff also produced and read in evidence a deed of conveyance, with the certificates of probate and registration endorsed, from Dunlap, the grantee, to John Rhea. Also a deed of conveyance from said Rhea to the lessor of the plaintiff. It was also proved that the land lies within the boundaries of what was the State of North Carolina at the time of making said entry, and within the County of Washington; likewise within the territory ceded by the State of North Carolina to the United States in 1789, and within the now County of Blount, in the District of East Tennessee; that it lies on the south side of Holston River, and between Big Pigeon and Tennessee River, and west of a line described in the 5th section of the Act of the General Assembly of North Carolina passed in April, 1778, chap. 3. Also within the tract of country secured to the Indians in 1791 by the Treaty of Holston, and that the Indian title thereto was relinquished in 1798 by the Treaty of Tellico. The defendant produced and gave in evidence a grant from the State of Tennessee to himself, made out and authenticated in the manner prescribed by the laws of Tennessee, and dated 18 May, 1810, which covers and includes the whole of the land in his possession, and for which this suit was brought. The
plaintiff, by his counsel, moved the court to charge and instruct the jury
"That an entry was actually made with the entry taker of Washington County, within which the land lay; that the entry was evidence that the consideration money was paid as required by law; that paying the consideration money, and making the entry, created a contract between the State of North Carolina and the said Dunlap, which vested a right in him to the land in dispute, and that it was not in the power of the legislature, at a subsequent period, to destroy the right thus vested, or rescind said contract, without the consent of the said Dunlap. That having the same land afterwards surveyed and granted, in the manner prescribed by the laws of North Carolina, vested in the said Dunlap and his heirs a complete title both at law and in equity, and that the conveyance from Dunlap to Rhea and from Rhea to the lessor of the plaintiff vested a complete legal title in him, and therefore he was entitled to a verdict."
Which charge and instruction the court refused to give to the jury, but on the contrary charged and instructed them
"That the said entry and grant were both null and void, and vested no title whatever the said Dunlap, because at the time of making said entry and obtaining said grant, the land included therein lay in a part of the country where the laws of North Carolina had not authorized their officers to permit lands to be entered, or to issue grants therefor, and although the entry and grant might have been made in the form required
by law, yet no interest whatever passed from the State of North Carolina to Dunlap thereby, and therefore they ought to find a verdict for the defendant."
A verdict was rendered accordingly, and a judgment pronounced thereon. To which charge and instruction the plaintiff's counsel excepted, and the cause was brought into this Court by writ of error.
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