Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-04-08
DECISIONS or THE sUPRGmE oOURT.
OFFICIAL
Opinions Of the supreme Court Of the
STATE of Tennessee at JacisOns April
Terms 1859.

kogg and others g. Hill & Wilians.
This bill was fled to enjoin the defendants from
prosecuting an action Of ejectment brought by them
against the complainant Upton, who claims under
Fogg-for the recovery of tract Of land of I75
acres lying IN Dyer county; and 70 have the legal
title to said land Invested out Of the defendants, and
vested in the compliments.
The Chancellor, on the hearing, dismissed the
bill, and the case is brought to this Court by an
appeal
The decision depends entirely upon the question
Of title.
The complainant, Fogg, as assignee claims under
an entry made by John Newer on the zOt1o March;
1921 founded certificate lcayTdnt No. 1872, issued
by the Register of West Tennessee, for l15 acres
entered in the Office of the 18th Surveyors District
which entry was surveyed on the LIST Of January,
1881 and the plat and certificate of survey were re-
turned and recorded in said surveyors office on the
18th Of February, 1881. But grant loas eUeissled
on said entry.
The defendants on the first day of September,
1851 made entry of said land in the Entry Tax
er's Office of Dyer county, and procured grant
thereon on the first day Of October, 1852, with
constructive notice. and as is necessarily 10 be IN
ferred, with actual knowledge that the land had
been previously appropriated by Viewers entry,
in satisfaction of a valid North Carolina land
claim.
Tie defendants insist that BY said entry and
grant they acquired valid title, and the ground on
which they rest their claim is: that by the failure Of
complainant to obtain a grant before the lst day
of September, IS5l-the time limited by the act
of IS49-50-"for making surveys, and obtaining
grants all entries heretofore made IN any OF the
land offices in this State his entry became void,
and the land was subject 10 entry as other va
cant land And Of this opinion was the Chancel-
lor Upon careful consideration Of the principles
involved in the case we are led to different con-
clusion.
/ North Carolina land-claims, recognized and pro
vided for by the cesSiOR act stand very different
ground from entries deriving their entire efficacy
! from the acts of the General Assembly of Ten
| nessee.
The right of the claimant to the land appropri-
ated under a North Carolina land warrant is not
derived fl ON Tennessee. but from North Carolina
under the provisions Of the cessiOn act By sol
emn act Of legislation prior to the cession act
| North Carolina had constituted herself trustee
/ for the officers and soldiers of her continental
Srmy, for the quantity of land to which they were
respectively entitled. Pinson vs.. Ivy, l Yerg. 297,
] 800
! By the provisions Of the eession act, the lands
ceded to remain subject to the satisfaction Of
all bona Jde claims of every description which had
been derived, before the cession, from the laws OF
North Carolina. The trust was devolVed upon Ten
! nessee, and was solemnly recognized by the com
pact with North Carolina, ratified by the act OF
1904 cb A. and by the act of Congress of 1906, CHI
| 81 and other acts of Congress, up to the act OF
| 1916. whereby the right and title OF the United
States under the cessiOn act to all lands south and
west of the congressional reservation line, Johich
| then remained llRdDprOpriGted surrendered to
Tennessee but upon the express condition, that the
lands thus released, and the proceeds thereof were
/ to remain subject to all the Claims membranes
and liabilities in relation to North Carolina land
warrants or other claims of North Car0linaas if the
land still remained in the hands of the United States
1t has been settled by repeated decisions of this
Court that the relation between the State of Ten
nessee and the owners of North Carolina land war
| rants or other claims, was that of trustee and
cestinque trust The State is regarded having be-
come bound to give the owner complete legal title
vesting him with estate in fee SIMPLE in the guam
tity Of land to which he is entitled. The claimant
Is considered having acquired absolute vested
right to the specific land appropriated by his war
rant and the State, as trustee, cannot dvest him OF
this right either directly OF indirectly. And tins
trust became so Incorporated with the claim, and
the land appropriated by it, to effect all subSe
ouent enterers of the same land upon the familiar
principle of equity, that where purchaser has no.
tice Of the trust though he pay a valuable consid
Grafton he shall be subject to the trust See PinsOu
VS.. Ivy, l Yer 800, 324, 359; Yer 100, 1913.
| The validity of these North Carolina land claims
is emphatcally recognized by the constitution OF
Tennessee, art /, sec. 81. 1t Is IN substance de-
clared that the sovereignty and right OF soil of
Tennessee are subject to the conditions and prOvis-
ions Of the cessiOn act and shall not extend to a
feet the claim claims of individuals to any part Of
the soil which is recognised to them, by the afore
! said cessiOn act"
| The right to the land appropriated by these
| claims" as before remarked is derived, not from
Tennessee, but from North Carolina. The former
was merely invested with the naked power of is.
suing a grant to the bona tide claimant And even
the power to issue the grant is a delegated power
not emanatng from her own independent sovereign
/ ", but from the sovereignty of North Carolina
! Haywood ll3, III.
! Independent Of the exercise Of any power or au-
tOrity in Tennessee the owner Of the land apprOpri
l. h.
regarded invested. with an estate in fee SIMPLE
merely by force Of the cessOn act and the acts OF
Congress, and of the General Assembly of Tennes-
| see, PASSED in pursuance thereof.
If these principles be correct tfOllows that the Lee
gisature does not possess the power TO annex sub
seouent condition BY which the failure of the claim
ant TO apply for grant within limited period shall
work a forfeiture Of his estate.
Tennessee voluntarily took upon herself the pos
tive active obligation TO perfect the titles, by the
issuance of grants upon all bona tide claims Origi-
mating under the provisions Of the cession act This
duty could have been easily discharged, consistently
with her obligations and the rights of the claim
ants by causing the gransto be in fact issued and
if they thought proper, making the necessary eX-
penses incident to their issuance, charge upon the
lands Of the respective owners But clearly, the
Legislature-by merely providing for the Issuance
of a grant, on the application of the owner Of
the land within a limited time-cOuld not, on the
ground of his neglect to demand grant within the
this is a right which Tennessee did not give, and
could nos. in this manner, take away.
This point is, perhaps, now, directly decided for
the first time in this State 1t might have been rails
ed upon the facts of the Of Sampson Taylor,
Sneed GOO but neither in that case, nor in any 9TH
er known to US The question presented tor de-
termination
We do not deem 1t proper, at present, to discuss
the question as to the power Of the Legislature to
annex subsequent conditions and limitations, in
gard to the time within which the enterers of land
deriving their right from the exclusive sovereignty
and right of sale in Tennessee, shall perfect their
titles The question, in this aspect is not before US,
and we intimate no opinion upon it.
We likewise pass by the position assumed for the
compliments that their entry being prior to the act
of 1928 ch 3d. the case does not tall within the pro-
vision of the 9th section of that act choosing rather
TO rest the determination of the case on the more
general ground before stated.
The result is, that the defendant must be regard
ed as holding the legal title acquired by their grant
in trust for the compliments; and will be so de-
creed.
Decree reversed. MCKINNEY
Test: NJ. d. WEIGH, Clerk.
Williams vs. DAVell and Others.