Wool v. Saunders

Shepherd, J.: Two questions must be determined before we enter upon the consideration of the facts of this particular case. 1. Whether the Secretary of State has a right to receive and act upon testimony outside of the papers filed by a claimant for the purpose of obtaining a grant for vacant and unappropriated land belonging to .the State? We are of the opinion that the question must be answered in the negative. The law has carefully prescribed how vacant lands may be entered and in what cases'the Secretary of State may issue grants. Chap. 17, vol. 2 of The Code. The entry takers and surveyors of the several counties are sworn officers charged with important duties in respect to the subject, and if it appears from the warrant and survey that they have discharged these duties, and if the claimant has in all other respects complied with the law, the Secretary has no discretion and must issue the grant. To permit or require the Secretary to go behind the prima facie right of the claimant and determine whether the land is subject to entry, would necessarily involve an inquiry into the legal or equitable rights of other parties claiming under prior entries or grants, or by adverse possession, and thus a new tribunal, unknown to the Constitution and laws, would be erected for the investigation of titles to real estate, the prac [736] tical workings of which would Be productive of inestimable conflict, uncertainty and confusion. The trial of such questions is wisely left to the Courts after the grant is issued, the grant being voidable if irregularly issued, and void if the land is not subject to entry. Strother v. Cathey, 1 Murphy, 102; Harshaw v. Taylor, 3 Jones, 514; State v. Bevers, 86 N. C., 591; Brem v. Houck, 101 N. C., 627. 2. The second question is, whether the Secretary of State may refuse to issue a grant when upon the face of the claimant’s papers (that is, the warrant and survey) it clearly appears that the land is not subject to entry, or subject to entry only upon certain conditions which are not shown to exist. The power of the Secretary as to issuing grants is a limited one, and extends only to those lands which by statute are subject to entry. When, therefore, he issues a grant of lands which are not subject to entry, the grant is void in a Court of law because he has exceeded the authority delegated to him, and his act has no more validity than that of any private citizen. Strother v. Cathey, supra. This being so, it would seem exceedingly plain that no Court ought to compel him to perform such an unauthorized act where the want of authority appears upon the face of the claimant’s papers. 3. The application of these principles to the case before us is free from difficulty. Excluding from our view, for the foregoing reasons, the communication of' Mr. Bond and its accompanying exhibits, and looking only at the papers of the claimant, we find, upon an examination of entry No. 39, that the land described is covered by navigable water and in front of am incorporated town. Such- land - is not the subject of entry except-under the conditions prescribed in The Code, § 2751 (subsection 1), one of which is that “ the town corporation shall [737] regulate the line on deep water to which entries may be made.” It seems to be conceded (and we think very properly) that until the town authorities,have acted, the land is not the subject of entry. The language of the statute clearly implies this, and there are obvious reasons why it should be so. If, as suggested, the towu authorities refuse to act, the Courts may compel them to discharge their duty in this respect, and in no event can our construction result in one party’s getting an undue priority over the other by any possible collusion with the town authorities, since only one person (the owner of the adjacent land) has a right to make such an entry. It affirmatively appearing, then, that the land is covered by water in front of an incorporated town, and such land not being subject to entry until the town authorities have acted, and this not being shown, we are of the opinion that the Secretary of State had a right to decline issuing a grant for the same. As to entry No. 38, we think it sufficiently appears from the face of the papers presented by the claimant that the town authorities had designated the line on deep water to which the entry could be made, and that the boundaries indicated are in conformity therewith. We conclude, therefore, that as to this entry a grant should be issued by the Secretary. It has been suggested that, although upon the face of the papers the claimant has a right to have a grant issued, and although the Secretary cannot consider the communication of Mr. Bond and its exhibits, still, the Court being possessed of this information, we should not require the defendant to do a vain thing. To this it may be answered that the Court cannot act upon such information, as it may be incorrect or susceptible of explanation) and the claimant ought not to be precluded in this “short-hand” way of asserting his alleged rights in “ a due and orderly course of procedure.” The judgment must be modified to conform to this opinion.