Den on Demise of Strother vs. Cathey, 1 Mur. 162

Locke — determine the questiosis arising in this case, it is necessary to consider the titles under which each party claims the land in dispute. The legislature of this state in the year 1783, passed

an act, declaring “that all the lands comprehended within a line described in the Sth sec. of said act, shall be,.and are hereby reserved unto the Cherokee Indians and their nation forever,” and in the 6ih sec. of said act, further declaring “ that no person shall enter and survey any lands within the bounds set apart for the Cherokee Indians-under the penalty of .fifty pounds; ©nd all such entries and grants thereupon (if any such should be made) shall be utterly void.” The defendant claims title to this land under a grant issued by the state of North Carolina to John Carson, bearing date on the Sth day of December, 1787, whilst the above recited act was in full force, and before any treaty was made with the Cherokee Indians by which they surrendered or relinquish, ed any of the rights reserved to them by the act of 1783. xt has been determined by this Court in the case of Sira* ther vs.

Avery:, that a grant obtained under circumstances the present, is utterly void, and can convey no title to the grantee, upon two grounds: first, because the words the act are imperative and declare the grant to be utterly void : and secondly, because the officers of state were not authorised to issue grants for lands of this description ; the state having by the act of 1788, divested itself of all title to the saíne, But it is contended'thal although the grant Jbe void, yet a Court of law will not receive parol evidence on a trial in ejectment to shew the grant void, but recourse must be had to a Court of Equity, or to the mode of pro» ceeding prescribed by the act of 1798, ch. 7, establishing the court of patents, This court entertains the opinion that it has always been competent for a court of law to receive parol evidence of the location of each tract of land described in a grant, and that in many cases it is only by such kind of testimony a grantee can shew the situation of the land mentioned In the plaintiff’s declaration or in defendant’s grant: and wherever it is shewn that the land claimed by the defendant is situate within the bounds allotted to the Indian nation, then the grant becomes ipso.facto void : it requires no act to be done, no ceremony to be performed to avoid it, hut it is of itself a mere nullity.

Besides it is competent for a Court of Law at all times to receive parol evidence to shew that the officers of state, who have signed and attested the grant, were not authorised or empowered to issue a grant for lands of a particular description ; for. if they exceed the authority delegated to them by law, their acts have no force nor validity: and would it not be absurd to say, that a grant issued by an individual not known as an officer of the government;, and clothed with no authority, could not be declared void in a Court of Law, but that recourse must be had to a Court of Equity ?

Grants of this description differ essentially from those where the officers had the power and authority by law to issue the grant, bu$ which grant may have been obtained irregularly and without conforming to the requisites prescribed by the act 1777, which irregularity and want of conformity might render the grant voidable by the. person injured thereby. Upon this difference Courts of Law have heretofore founded their decisions. In the first class of cases they have received parol evidence and declared the grants void : 1 Hay » wood, 376, The trustees of the University vs. Johnson.

Butin the second class of cases where the grant has- been irregularly issued, they have said that the party wishing to avoid it, must apply to a Court of Equity ; that it would be productive of the most dangerous consequences to avoid it by parol testimony. Reynolds vs. Flinn, 1 Haywood 107.

The present case falls within the description of the first class of cases, and it is sufficient to say that in this case and be. tween these parties, and on a title like the defendant’s, a Court ol Law will receive parol evidence and declare such a grant void, without deciding the general question or. any pther than the one submitted. Having declared the power of the Court, upon a trial at law, to receive evidence to show the defendant’s grant to be void, we are next to determine how far the title of the lessor of the Plaintiff will enable him to recover.

He claims title under a grant from the state of North Carolina having date the 19th day of May, ISOS, and founded on an entry made in the year 1781.

To ascertain the validity of flus grant, it may be necessary to take into view some proceedings of the general government as well as of the legislature of tisis state relative to the lands allotted to the Cherokee Indians by the act of 1783. — The first and most important is the treaty made by William Blount with, ths Cherokee Indians, on the 2d day of July, 1791, William Blount then being governor of the territory of the United States south of the River Ohio, and superintendant of Indian affairs for the southern district.

By the fourth arts* cle of this treafy9 it is declarad 45 that the chiefs and war-°f the Cherokee Nation, for themselves and the whole Cherokee Nation» their heirs and descendants, for a consideration therein expressed, release, quit claim, relinquish sfnd cede all the land to the right of the line therein described.”- — .And within the bounds thus ceded is the tract of Sand in question. In the year 1791, the legislature of N» Carolina, passed

an act declaring 55 that a part of Rutherford and Burke Counties should forra a 'separate & distinct «county by th® name of Buncombe,” and particularly describes the boundary lines of said county, which lines include the land covered by‘the plaintiff’s grant.

It is further declared by the said act45 that the Justices of Buncombe shall have the same powers and jurisdiction as the Justices of the peace have in any other county in this State.” — By the provisions of the act of 1777 — Iredell 292, it is made *« the duty of the Justices of the peace of each qounty to elect an entry taker, who shall receive entries for any lands lying in such county, which have not been granted by the crown of Great Britain or the |*ords proprietors of Carolina or any of them in fee before the 4th day of July 1776, or which accrued or shall accrue to the state by treaty or conquest.*5 —Under these provisions the lessor of the plaintiff after the county of Buncombe was formed and the Indian claim extinguished by Blount’s treaty, entered with the entry taker of Buncombe Cou nty the land in question, & on thel9th of May, 1803, obtained a grant for the same.

The validity of this grant is now to be decided, for the plaintiff in this action must recover by the strength of his own title and nof through the weakness of his adversary’s. To the title thus adduced, two objections are made by the defendant’s counsel: first, that the act of i783 remains unrepealed and full force, and that the sixth

section of that act attaches this grant with the same force as to the grant set up by defendant: and secondly, that by the treaty these lands xvere ceded to the general government and not to the state-of‘North Carolina. As to the first objection, the answer is, that although the act of 1783 has not been expressly repealed by the legislature, yet it is effectually and stantially repealed by the treaty.

The act of 1783, was evidently made to preserve peace with that tribe of Indians, who by the extension of frontier settlements had become near neighbors to the inhabitants of the western part of Burke County, which peace would probably be broken, & the advantages contemplated by the legislature in this donation entirely frustrated, if any individual was suffered to interfere with the rights secured to the tribe by the act of1783»

But when that tribe of Indians voluntarily and for a valuable consideration surrendered up their claim, no injury could ensue to the Indians by entering those lands : for whether they were occupied or remained vacant was to the Indians a matter of indifference, from the moment of the ¡ratification of the treaty. The reason and policy of the prohibition contained in the act of 1783, ceased, and with it the prohibition itself,; The second objection seems to be equally unfounded.

These lands having once belonged to the state of North Carolina and having been granted by that state to the use of the Indian Nation revested in the state when that use expired, and the Indians release all claim to the same.

No expression is used in the treaty to convey these lands to the general government: and altho” the Indian title was extinguished by the general govern^ ment it does not follow that the title rests in them, for since" the adoption of the federal constitution the power of making treaties, is surrendered by each state to the general government and through them alone Indian claims are to he extinguished; and these lands lying within the boundary of this state, acknowledged by the federal government when received into the Union, must remain the lands of this stale until she cedes them away; judgment must therefore be entered for .the plaintiff, Stone — defendant has certainly acquired no title by the grant to him from the state; & without entering ifito the consideration of the general question, whether pa-evidence may be introduced to invalidate a grant on all occasions, this case may be decided upon its own special circumstances.

For the evidence which locates and points out a subject for the operation of the grant, at the same time proves that the land which it purports to convey was not, at the time it has date, subject to be so granted.

Upon the second point it may be observed that neither the European governments, nor the government of the United States^ nor that of North Carolina, have considered the Indian title other than a mere possessory right; and the government of the United States as well as the governments of the several slates have claimed and respected in each other the claim to exclusive jurisdiction and title to territory occupied by the Indian tribes. The treaty of 4791, with the Cherokee?, cannot be considered, therefore, as conveying a title to the soil of this land to the United States.

It can only be received as a relinquishment of that possessory right which alone had been yielded to the Indians. This right did of course vest according to the precedent claims of North Carolina, known and admitted by the United States themselves. It is true the treaty was made by the United States ; because by the federal constitution the general government had been made the agent of North Carolina for that purpose. JLet judgment be entered for the plaintiff.