#### PHELPS *v.*CHESSON.

Ünder the Act of Ii>49-’3, ch. 36,'sec. I, the Literary Board can acquire no title to land, alleged to be forfeited by a grantee from the State, for non payment of taxes, unless some proceeding 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 shew, that the arrearages of the taxes had in fact heen paid within the year.

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 Segal import as the Words “ *ipso facto*void.”

The case of *Houston*v. *Bogle,*10 Ire. 496, cited and approved. •

Appeal from the Superior Court of Law of Washington County, at the Spring Term 1849, his Honor Judge Manly presiding.

This was an -action of trespass *m et ramis, quare dausum 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 plain-. *195tiff 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 the 8th of August 1846, for the same pre' mises; and also a deed from a tenant in common with the plaintiff, who was not joined in the suit, dated 8th of 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 defen' dant 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 defen' dant on the questions reserved, set aside the verdict, and entered a judgment of non suit; from which the plaintiff appealed.

*196*Heath,*for the plaintiff, submitted the following argument:

Assuming the act of 1842-3 to be Constitutional, which may well be doubted, as I hope to show, it is believed, it is against all the analogies of the Law to permit Chesson, the defendant, to set up the inchoate title of the Literary Board, as a defence to the plaintiff's action. The defendant does not claim under the Literary Board; has shown no proceedings, either by suit or entry, 10 divest the plaintiff’s title under the Davidson and Frazier grant, nor has he shown even an election, on the part of the Board, to hold or to take the premises, for trespassing on which suit is brought./ As the act alluded to, and under which the attempted defence is made, provides that the owners of Swamp Lands, their heirs or assigns, who have not listed, or have not paid taxes on the same, shall *forfeit*them, it is submitted, that, as in other cases *oí forfeiture,*before the title is transferred *from*the original owner, and perfected *in*the Literary Board, a recovery or entry, or at least an election to hold, by the Board, must be shown; and until one of them is shown, such inchoate and imperfect title cannot be set up by a mere stranger, or a trespasser. This doctrine is familiar to the profession, as applicable to Leases, and forfeitures by Aliens; in the one case, the Alien holds until the sovereign acts to displace him: in the other, though the estate be forfeited, and the lease by its terms be declared null and void^ still the interest of the lessee continues, until the lessor divests it by actual entry. These principles are too familiar to require support from authorities : tested by them, the defence fails, and there is consequently error in the judgment of his Honor, who tried the cause.

2d. The defendant is estopped to’deny the plaintiff’s title. The defendant showed in evidence, in defence, a deed for an interest in the premises trespassed on, from a tenant in common with the plaintiff, bearing date 8th of August, *1971848, *after*the defendant had committed the trespass sued for. It does not appear, nor is it even suggested, that the plaintiff had any other title, than that derived under the Davidson and Frazier grant, and it is submitted there is error in this : that the Judge should have charged the jury, that the defendant was not only estopped, to deny the plaintiffs title, *ah ovo, after*the taking of a deed from a co-tenant of the plaintiffs ; but, *as no other tenancy in common was shown than that derived from the grant aforesaid,*the es-toppel extended back, anterior to the trespasses, and even up to the date of that grant. The grant from the *State;*given in evidence by the defendant, cannot aid him, for the reason that it is younger than the Davidson and Frazier grant; and moreover, the act of 1842-’3, if it transfer the title *at*all, transfers it to the Literary Board, and not to the State. In this view of the case, he should have procured a grant from the Literary Board and not from the State.

3d. But does the act of lS42-’3 transfer the title even an *inchoate*or *imperfect*title, which the Board may perfect by entry, suit, or election? Is not that act unconstitutional and void? Is it a “Law of the Land,” in the sense recognized by the Constitution ? or does it not violate the express provisions of the Constitution? It is contended it does; and, without multiplying authorities, it is perhaps sufficient to refer to the opinion in *Hoke*v *Henderson,*4 Devereux, Law, page 1: an opinion, that has received the distinction of being highly complimented by Chanceller Kent, in his Commentaries, for its ability and sound Constitutional doctrine : and which, with the cases therein, cited,, may be said to exhaust the subject. I refer also to the published remarks of Chanceller Kent, relative to laws of this description, to be found in the first volume of the last edition of his Commentaries, pages 454, 455.

If this law be permitted to stand, its operations will be singular indeed. Without any knowledge on the part of the heir, that heir will be deprived of his freehold, for the *198alleged default of his ancestor, of which he will know, arid and could know, nothing. The vendee, in like ignorance, will be deprived of the fruits of his purchase, by the default of his vendor, immediate or remote, and against which such vendee has no covenant. The devisee will, in like manner, be ousted from the enjoyment of the bounty of his testator, while, as if to complete the absurdity, the title is thrust on the Literary Board, an entire stranger, equally unknowing of his newly acquired rights ; while, as in the present case, its practical benefits will be reaped by him only, who uses it as a defence,-to protect him in his wanton and unjust depredations on the rights of others. A law so injurious in its operations, so repugnant to all notions of natural right, it is submitted, cannot stand the Constitutional test: but must be declared null and void.

*W: H. Haywood*and *E. W.*Jones. fqr the defendant.

PcARsoy, J.

The defence 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 fii-st 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 *199grantee, his heirs, or assigns have not regularly listed the same for taxation and 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 arreare-ges 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*lig-*atur.”*

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 aqt on the part of the grantor *200or his heirs, by which to take 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 t& and be vested in the State, there is the qualification, *“unless,*such grantee, his heirs, or assigns shall within twelve months pay the taxes &c.”

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 Funds had taken any proceedings or in any way signified an election to defeat the estate of the. plaintiff, the estate was still m 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; Ch. 52 Sec. 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*10 Ire. 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.— There is error.

Per Curiam. Judgment reversed, and a *venire de novo.*