fore or hereafter to be made or obtained, &c." by any person upon lands previously or first entered by any other person, shall be, and the same are hereby declared to be void and utterly of no effect." So fearful and cautious were the Legislature, that they would not make a law to extend any farther, than as respected her western land, which was not held in very high estimation, or she would not have ceded it to the United States a few years afterwards, (1789). But she had shown the slight estimation in which she held her Western Territory, by a cession to Congress in the year 1784, which was not accepted. When we consider, too, the time this act was passed, there had recently been a strongly marked misunderstanding, between the eastern and western citizens of North Carolina (vide Acts 1785, c. 46. Ird. 566, 1786, c. 23. Iid. 597) which made the State much less attentive to her western citizens, or lands. These ideas are preliminary to a remark on the wording of the act, in one particular, which is singular, and shows the probability, that the act was drawn without attending to the previous laws on the subject. The act speaks of "persons having caused lands to be surveyed, and plats to be returned," &c. This is contrary to the express provisions of antecedent acts, in which it is made the duty of surveyors, as public officers, to survey lands, and return the plats, without any regard to the claimant, or others, and this was so determined by the Superior Court at Nashville, in the case of Blakemore vs Chambless, when the case was fully discussed and considered; vide also the case of Dickey vs Hoodenpile, 1 Hey. Rep. 358,

The recital in this preamble cannot repeal the well known and established law, that the survey and return of the works, under the laws of North Carolina were entirely the acts of the surveyor, in which, in contemplation of law, the claimant could have no agency: The intention of the Legislature however, is clear, that grants obtained upon younger entries, to the prejudice of elder ones, should be void; but whether absolutely void, or only voidable, will be presently considered.

:

The act of 1787, c. 23, need not come into view it is the same in substance, with the last act, extending the remedy to older en

tries, in every part of the state, which was not done by the Act of 1786.

It is insisted, that wherever an act declares a deed void, or utterly void, the matter dehors, producing the avoidance, may be given in evidence, without pleading, in all cases, as being absolutely void, and not merely voidable. This is certainly not the law, as the authorities will show, particularly Whildale's case, 5 Co. 119, and the note in Ba. Ab. 68.

Thegeneral principle seems to exist in these cases, and adverted to in Gilb. L. E. 43, where the great lawyer observes, that "what shall constitute the solemnities of a contract, is matter of law, and so it is how these solemnities ought to be defeated, and destroyed; and again," it were preposterous that the law should require that the contract should be offered to the Court, that it might appear to be legally made, and yet, that it should not be offered to the Court how it is defeated; both certainly must be determined by the same judicature; for it is absurd to say, that the Court should determine, that the contract was lawfully made, and that the jury should determine that it was lawfully determined." From hence, and other ancient regulations, we see so many special verdicts, in lord Coke, and other reporters. But our juries, seldom render them, though sometimes suggested by the Court-They determine intricate points of law, which was rarely the case anciently. It must be recollected, however, that this general principle, is subject to exceptions in the case of fraud, the king's prerogative, and other instances which have been mentioned,

*"The most remarkable feature of the laws of England, is an antipathy to fraud and deceit. The robust temperament of our early progenitors, while it qualified them to repel violence by violence, afforded them no protection against artifice and circuity. Their first esays in legislation, were directed by their prevailing anxieties. The article of Cavin was therefore the principal title of their conservative jurisprudence, and their abhorrence of subtilty carried them at once beyond the object of punishment to the method of prevention. In the first rudiments of our law was comprized this notable aphorism, "that fraud and Covin vitiate every title; and even right itself is turned into wrong by circumventing to obtain it." Roberts on Frauds, Preface xxi. And again, the same elegant and judicious writer, when speaking of the reception of parol evidence, in relation to specialties or deeds,

The land

and

The principal case it is believed, lies without the limits of the exceptions to the general rnle. The only ground on which a court of law can receive the evidence of the entry, with its con. comitant parol proof to ascertain its locality, is fraud in the patentce, which is not warranted by the statutes, or facts. law as before remarked, supports the position, that the return of the plat, are acts of the officer, and not of the party. The secretary then issues the grant without application. In this transaction there is no ground to suppose fraud in the party. If he obtain an elder grant, it is owing to the acts of the officers of government, over which he had no control.

survey

The emanation of a grant to the prejudice of an older enterer, is owing, either to a mistake in the surveyor, in surveying and returning a younger enterer's claim, before an older; or in the secretary, in issuing a grant upon a younger entry, and return, before issuing on an older one.

The wording of the acts, shows, that it was owing to the surveyors, improperly surveying younger, before older entries, that the injury arose which they meant to redress. They do not say any thing respecting an entry, being improperly made, nor will the state of things permit us to attach fraud to a person making it. And if fraud had mingled itself with the transaction, we

under the head "of the admissibility of extrinsic evidence to prevent fraud, correct mistakes, and to protest against the consequences of loss or accident, he observes, "there are three branches of doctrine still remaining to be considered with relation to this intricate learning, which arise principally out of the particular jurisdiction, and relief of Courts of Equity, viz. Fraud, aceident, and mistake. Fraud is a subject of relief in equity, and a bar at law, to which no solemnities of authentication can be opposed, and the anxiety of our courts of judicature to prevent its success, has, where its existence is the object of proof, made extrinsic and parol evidence admissible. And, indeed, the steps by which the Courts have progressively proceeded, in subjecting written instruments to the control of parol evidence, are said to have had their commencement in the cases of fraud. Though the Statute of frauds and perjuries may have increased the jealousy of parol evidence, yet it raises no barrier against its admission, where it professes and tends to support a charge of fraud, page 78. Vide the act to prevent frauds and perjuries, Ten. Laws, 1891, c. 25.

have the authority of an eminent lawyer, that the evidence ought not to be received.*

It is manifest then, from this view of the subject, that the legislature designed to avoid the patent, for being irregularly issued, and not on the grounds of fraud, in the patentee, which was not, nor could not, be presumed from the construction of the statutes, or otherwise, 1 co. 52 b. 10 co. 56. co. lit. 232. 273.

3 Tucker's Black. 261. Note 10, perTucker, and the opinion of the Court of Appeals in Virginia in the case of Witherington vs M'Donald, in Eject. ment, June 1807. Mum. and Hen. Rep. 306.

In this, the case of Hamilton et alias, vs. Wells, was commented on, in which the same Court, in June 1791, decided, that fraud might be given in evidence in a Court of Law, in avoidance of a patent. It is here said, that the point in the last case was decided by three judges against two, and that the law, even on that ground, was considered as not settled. Judge Tucker professed himself never to have been satisfied with the decision. Roane J. said, as there was no question of fraud, an argument was unnecessary. Lyons J. said, his opinion in the case of Hamilton et al. vs Wells, was, and still is, that at law, no evidence can be adduced to impeach a patent. After these observations, of which the above is the substance, Judge Tucker delivered the following opinion: "There being no suggestion of fraud on the part of the plaintiff in obtaining his patent in this case, we are relieved from the necessity of discussing the decision of this Court, in the case of Hamilton et al. vs Wells, June Term, 1791, in which the defendant offered to prove, the plaintiff to have him guilty of fraud, in obtaining his patent, by procuring a plat to be returned to the register's office; knowing that an actual survey had not been made. By a note of that case, yesterday read in Court by one of the Judges, who copied it from a note of the late president, Mr. Pendleton, it appears that other extraneous evidence was offered and rejected by the Court, on the trial of that cause."

The three points of testimony rejected, are there stated, and the judge proceeds "all which testimony this Court appears to have considered as properly rejected. The evidence offered in the present case appears to me to stand on the same footing. It might perhaps, have availed upon a caveat, a proceeding calculated to prevent the emanation of a patent, where the party applying for it, does not proceed in the manner which the law requires ; but a patent being the highest evidence of a complete legal title, and a matter of record, no evidence not in itself sufficient to avoid it, ought to be admitted to go to a jury on the trial of an ejectment.

If the law does not presume there was fraud in obtaining the oldest grant, nor any actually shown, the grant cannot be absolutely void, but voidable only, on the ground of irregularity, or mistake in surveying and issuing the grant. We cannot suppose that the legislature intended to make a grant absolutely and ab initio void, for a mistake or irregularity in their officers, because it might happen to interfere in part with another claim. In this way it would happen that an elder enterer, might not interfere more than ten acres in a thousand, and the grant of the younger enterer for 990 acres, to which no claim existed, would, according to the position insisted on by the plaintiff's counsel, be utterly void.

The uniform opinion of our courts and universal sense of society, are adverse to this proposition.

Besides, the legislature of North Carolina by their act of 1796, c. 9, respecting the lands of this country, have given us their opinion, by allowing younger grantees, in all cases to locate such part of their lands as may be covered by older grants elsewhere.

Now if they had conceived such a grant void ab initio, they would have made some provision respecting the part not interfered with,which, being a loss,would equally require relief. The case too, put by one of the counsel for the defendant, also shows that such a grant was not designed by the legislature to be rendered absolutely invalid. The case put supposes two entries, an older and younger; the younger gets the oldest grant; then according to the position contended for by the plaintiff, the act would operate upon it, by making it an absolute nullity. The elder enterer removes his entry or claim; and thus the act would operate a destruction of the younger enterer's grant, when after the removal there would not be any claim to contend with; for being absolutely void in its commencement, it could not be confirmed as a voidable grant could. 3 Rep. 64. b. Doug. 52.3. 1Str. 94. Co. tit. 259. b. If absolutely void, it would stand in the same situation as a patent in England after being repealed, or cancelled, 4. In. 88, which would go to the whole patent, and not to a part, unless there were independent elauses, 17 Vin. 118. The evident meaning of the legislature was,

* Vide Cross.vs. Faustenditch Cro. Jac. 180. No. XIII.

E