Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-11-03
DECISIONS OF THE sUPREmE CoUnr.
Opinions Of the Supreme Court OF the
ssate Ot Tennessee, al Jackson, April


OpAM1Ons OF the supreme Court OF the
Term.
Scott and wife. ct all vs.. Price Bell.
Thisis action Of objections for the recovery Of
two tracts Of land in WeakIey county, one for I7O
acres and the other for 55f acres.
The plaintiffs concede they have no title to the lat
ter tract aud the contest here is as 70 the title Of
The Circuit Judge held that tho defendants had
the better title also to this tract In this we think
he erred We are satisfied thatOne Howard. under
the act Of 1922 C. 22, and prior to the wear 1881.
had occupant right 10 this land and that in Feb
ruary OF that year. he entered the same IN the pro-
per Office by Especial occupant. entry as required
BY that act, and the act Of 1926 Ch 4 that said oc
cupant's right was preserved BY said Howard and
his assigners until the year 1858. when James H.
Norm, the ancestor Of the plaintiffs, became the
owner thereof by assignment; and that upon his
DEATH the same came by descent to the plaintiffs,
who are his heirs at law; and that they caused the
said tract Of land to be granted to them by the State
Of Tennessee, on the lst Of May, 1854.
The defendants claim uEGer a general entry made
the 10th of October. 1852, and grant thereon by
the State of date the lst Of February 1885, and il
il were not for the existence of the occupant right
of the plaintiff, wCud have the better title But we
think the grant and entry uder which the defendants
claim, so far as they conflict with the entry of How
ard, absolutely void, because made in violation Of
the occupant right
The act of 1851 ch S26 gave to the enterers Of
land in any of the land offices IN this State and to
their assigrees, time until the lst day of March,
1854, TO have their entries surveyed and granted
and made il unlawful for any person to enter any
previously entered, until such person had given in
writing, at least 80 days previous notice to the per-
son residing on or cutiVating such land, or to the
previous entereP. or his their assigns of his in
tentiOn to enter the same, and any entry made. or
grant obtained contrary to the provisions Of the act
is declared void. Etheridge' who made the entry
and obtained the grant, relied BY the defendants,
did not give any notice to the assgnees Of the pre-
yious enterer.
And it is now assumed for the defendants. that
this act of the Assembly has no application to an
entry founded upon 0ccspd1R right. and which
could never be the foundation of grant but was
only intended TO protect general entries founded on
military warrants entries made after the vacant
lands in Tennessee eeded to the State by Con-
gress in l84l, by payment of the fees Of office, or
such other consideration as the Legslature-in the
disposition of those landshad, from time to time,
required, that q grant could issue upon no other
class of entries and none other could have been in
tended We do not assent 70 this argument The
language of the act is general and embraces all
land which had been previously entered under au-
thOFity of laW-no matter when ;-and without any
distinction to the origin, nature of the right of
entry and we satisfied it applied TO an occupant
enter and protects him as fully as it does the gem
eral enterer. 1t embraces all entries. And unless
it can be shown, that the location made BY Howard
is not, in any legal sense entry, the plaintiffs
rights are secured.
The act of 1926, ch. Z, sees provides that where
any of said Occupants may wish to have their lands
laid down on the ground plan directed in the act
they shall file with the surveyor location in legal
form tor the same, and it shall be the duty Of the
surveyor to record the same in book to be kept by
him for that purpose. And what is a location thus
fled received and recorded but an entry! Meigs
Digest 1863, 67o II was recognized by the Court at
an rlv de- eona aufr va X
Yer. 44S
It's true that prior to the cession act of ls4I,
grant could net issue unless based upon warrant;
and since that act upon the payment of the fees Of
Office, OF such other considerations as had heen pro
Vided by law But this does not prove that new
or second entry is necessary any more than that an
additional survey is required, sufficient one has al
ready been made. Act Of 1929, ch. %, sec Is. Why
such an addition. or second entry upon the Sdme
land when one already made is special and valid7
But if the second entry be necessary, the case is
still within the act because it gives further time to
procure grants upon all entries, and OF necessity IN
cludes every thing proper requisite to be done in
order to obtain The grant,
We are to observe also, that the act not only pro-
hibits an entry and grant upon lands appropriated
By precious entry but alsO upon land on which
another resides, or which is cultivated by another.
This provision is to be found in the act of 1924 eh-
22 sec. G. and is noticed in Dew VS.. Nixon 10 Yer.
SIS; and there can be no question that the drafts
of legislation and decision in the State upon this
subject This being so it can hardly be supposed
that occupant entry was not TO share in the pro-
lection afforded by the act These rights have al
ways been guarded, by the Legislature, with much
care. They included some of the most valuable
property in the State; and since the year 1919 at
least it has hen unlawful for general enterer to
interfere with them unless it be during some hiatus
in the law by which they were secured.
It is obvious that these considerations are not
fbo bas-g
of James H. Norm, uponthe payment of the fees Of
Office, for the purpose of procuring these grants,
the 22d Of October, 1858, caused second entry to
be made of this land. And they fortified by the
fact that in 1885, the survey then made of this land
recites, that it was made for the plaintiffs the
heirs Of James H. NORM assignee Of Littleton How
ard as their occupant claim; and this survey is
cited in tile plaintiff grant Kelly vs.. Hare Hum
163, l66.
The provisions of the act of 1851 are extended in
the act Of 1858 to the lst of April, 1854 and the
protection has been continued by subsequent legis-
latOn so that, time since the 18th Of August
1851, could said Etheridge have made an entry, or
have obtained grant for the land. The plaintiff 5
grant, therefore, in 1854 gave them perfect legal
title-the entry and grant of Etheridge being void
Kelly vs.. Hare 1st Hum. 1876, Patterson ct al
vs.. McCutchen ct al, 5 Hump. 222-328,
The right of James II. NORM and his heirs to this
occupant was protected without actual residence
he being the assignee Of the original occupant Acts
Neither is there anything in the argument that
James II. NORM had such interest in this land,
that 1t could be transmitted by Inheritance 70 his
heirs. There can, we appTehend, be no question
that the public lands were Felinqpished to
this State BY Congress, the occupant laws previous
" enacted, conferred upon those who had complied
with their provisions inherisabe interest in the
land. Knox vs.. Thomas, Hump 573
1t has been decided, since that act in unrepor-
ted case. by predecessors to be such an sqiEd-
I. .t,le
The case of Brown Nancy, Hum. 40. arose
before the REIMBURSEMENT. But if this not so
an inheritable quality impaired to these lands
by the act of lS45. eh. g. sec. T. And there can be
no doubt think that the plaintiffs stood in the
shoes of their ancestor and were as fully secured
and protected he was.
The judgment of the Circuit Court reversed and
a new trial granted. WRTaHT
Test: NJ. d. WELCH, Clerk,