McIver v. Ragan
15 U.S. 25 (1817)

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U.S. Supreme Court

McIver v. Ragan, 15 U.S. 2 Wheat. 25 25 (1817)

McIver v. Ragan

15 U.S. (2 Wheat.) 25

Syllabus

Where the plaintiffs in ejectment claimed under a grant from the State of North Carolina comprehending the lands for which the suit was brought, and the defendants claimed under a junior patent and a possession of seven years, which by the statutes of that state and Tennessee, constitutes a bar to the action if the possession be under color of title, to repel this defense, the plaintiffs proved that no corner or course of the grant under which they claimed was marked except the beginning corner; that the beginning and nearly the whole land and all the corners except one were within the Cherokee Indian boundary, not having been ceded to the United States until the year 1806, within seven years from which time the suit was brought, but the land in the defendant's possession and for which the suit was brought did not lie within the Indian boundary, it was held that notwithstanding the laws of the United States prohibited all persons from surveying or marking any lands within the Indian territory, and the plaintiffs could not, therefore, survey the land granted to them, the defendants were entitled to hold the part possessed by them far the period of seven years under color of title.

The plaintiffs in error brought an ejectment in that court for 5,000 acres of land in possession of the defendant, Ragan, and on the trial gave in evidence a grant from the State of North Carolina of 40,000 acres, comprehending the lands for which the suit was instituted.

The defendants claimed under a junior patent to Mabane and a possession of seven years held by Ragan which, by the statutes of North Carolina and

Page 15 U. S. 26

Tennessee constitutes a bar to the action if the possession be under color of title.

To repel this defense the plaintiffs proved that no corner or course of the grant under which they claimed was marked except the beginning corner. That the beginning and nearly the whole land and all the corners except one were within the Indian boundary, being part of the lands reserved by treaty for the Cherokee Indians. These lands were not ceded to the United States until the year 1806, within seven years from which time this suit was instituted. But the land in possession of the defendant Ragan and for which this ejectment was brought did not lie within the Indian boundary.

The laws of the United States prohibited all persons from surveying or marking any lands within the country reserved by treaty for the Indians.

Upon this testimony, the counsel for the plaintiffs requested the court to instruct the jury that

"the act of limitations would not run against the plaintiffs for any part of the said tract, although such part should be out of the Indian boundary, until the Indian title was extinguished to that part of the tract which includes the beginning corner, and the lines running from it, so as to enable them to survey their land, and prove the defendant to be within their grant."

But the judge instructed the jury that,

"although the Indian boundary included the beginning corner, and part of the lines of the said tract, yet, if the defendants had actual possession of part of the said tract not so included within the said Indian boundary, and retained possession thereof for seven

Page 15 U. S. 27

years without any suit's being commenced, the plaintiff would thereby be barred from a recovery."

To this opinion the plaintiffs by their counsel excepted.

The jury found a verdict for the defendants, or which a judgment was rendered, and the cause was brought before this Court by writ of error.

Page 15 U. S. 28

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