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,
Page 14 U. S. 116
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
Page 14 U. S. 117
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
Page 14 U. S. 118
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.
Page 14 U. S. 121
TODD, J., delivered the opinion of the Court, and after stating
the facts, proceeded as follows:
The question now to be decided by the Court is whether the
charge and instructions required by the plaintiff's counsel ought
to have been given, and whether the one given was correct.
In the construction of the statutory or local laws of a state,
it is frequently necessary to recur to the history and situation of
the country in order to ascertain the reason, as well as the
meaning, of many of the provisions in them, to enable a court to
apply, with propriety, the different rules for construing statutes.
It will be found, by a recurrence to the history of North Carolina,
at the time of passing this act, that she had, but a short time
before, shaken off her colonial government, and assumed a sovereign
independent one of her own choice; that during the colonial system,
by instructions and proclamations of the governor, the citizens
were restrained and prohibited from extending their settlements to
the westward, so as to encroach on lands set apart for the Indian
tribes; that these encroachments had produced hostilities; and that
on 20 July, 1777, a treaty of peace had been concluded at Fort
Henry, on Holston River, near the Long Island, between
commissioners from the State of North Carolina and the chiefs of
that part of the Cherokee nation called the Overhill Indians, and
that a boundary between the state and the said Indians was
Page 14 U. S. 122
established. When the Legislature of North Carolina were passing
the Act of November, 1777, establishing offices for receiving
entries of claims for lands in the several counties within the
state, it is improbable that the foregoing circumstances were not
contemplated by them, and hence must have arisen the restriction in
the act, as to lands "which have accrued, or shall accrue, to this
state, by treaty or conquest." If this be not the ground or reason
of the provision, it will be difficult to find one on which it can
operate. It may be asked where was the land which was to accrue by
treaty or conquest if not within the chartered limits of that
state? If it was in a foreign country or from a sister state, the
restriction was unnecessary because in either case it was not
within the limits of any county within that state, and of course
not subject to be entered for. The restriction must apply, then, to
lands within the chartered limits of the state, which it
contemplated would be acquired, by treaty or conquest, from the
Indian tribes, for none other can be imagined. It is not to be
presumed that the legislature intended, so shortly after making the
treaty, to violate it by permitting entries to be made west of the
line fixed by the treaty. From the preamble of the act as well as
other parts of it, it is clearly discernible that the legislature
intended
"to parcel out their vacant lands to industrious people, for the
settlement thereof, and increasing the strength and number of the
people of the country, and affording a comfortable and easy
subsistence for families."
Would these objects be attained by permitting settlements
encroaching
Page 14 U. S. 123
on the lands lately set apart by treaty for the use of the
Indian tribes by provoking hostilities with these tribes, and
diminishing the strength of the country by a cruel, unnecessary,
and unprofitable warfare with them? Surely not. However broad and
extensive the words of the act may be authorizing the entry takers
of any county to receive claims for any lands lying in such county
under certain restrictions, yet from the whole context of the act,
the legislative intention to prohibit and restrict entries from
being made on lands reserved for Indian tribes may be discerned.
And this construction is fortified and supported by the Act of
April, 1778, passed to amend and explain the Act of November, 1777;
the 5th section of which expressly forbids the entering or
surveying any lands within the Indian hunting grounds, recognizes
the western boundary as fixed by the above-mentioned treaty, and
declares void all entries and surveys which have been, or shall
thereafter be made within the Indian boundary.
It is objected, that the act of April, 1778, so far as it
relates to entries made before its passage, is unconstitutional and
void.
If the reasoning in the previous part of this opinion be
correct, that objection is not well founded. That reasoning is
founded upon the act of 1777 and the history and situation of the
country at that time. The act of 1778 is referred to as a
legislative declaration explaining and amending the act of 1777. It
is argued that there is no recital in the act of 1778 declaring
that the act of 1777 had been misconstrued
Page 14 U. S. 124
or mistaken by the citizens of the state, or that entries had
been made on lands, contrary to the meaning and intention of that
act, and that the 5th section is an exercise of legislative will
declaring null and void rights which had been acquired under a
previous law. Although the legislature may not have made the
recital and declaration in the precise terms mentioned, nor used
the most appropriate expressions to communicate their meaning, yet
it will be seen by a careful perusal of the act that they profess
to explain, as well as to amend, the act of 1777. Upon a full
review of all the acts of the Legislature of North Carolina,
respecting the manner of appropriating their vacant lands, and
construing them
in pari materia, there is a uniform
intention manifested to prohibit and restrict entries from being
made on lands included within the Indian boundaries. Therefore this
Court unanimously affirms the decision of the circuit court with
costs.
Judgment affirmed.
