#### University of North-Carolina v. Johnston.

Haywood, Judge, was o'1 opinion, that a S<aie grant of lands which had been granted by Lord Granville, nd which had escheated to the State, was void as not being unappropriated lands, -<nd that this fact might be shown in the action of ejectment. But he reserved the question. A claimant by escheat may enter, and therefore may sustain ejectment. A corporation must make its leases under seal, but the loase which is staged in an ejectment by a corporation is not to be proved, and will be presumed a legal one.

Ejectment. The counsel for the. University produced the registered copy of a grant from Lord Granville, ñateé sometime in the year 1 - 63. to our Mucldehenny. and proved that he left this country within a year or two after the dale of the grant, intending to go to Ireland ; and that he has not since been heard of, nor any heir of his. He also produced the act of 1789, c. 21, s. 2, “ That all the property that lias heretofore, or shall hereafter escheat to the State, shall be, and is hereby vested in the said trustees for the use and benefit of the said University.” On the other side was produced, a grant from the State for the same binds, dated in the year 1780. it «as argued for the University, that it would probably be objected oh the part of ihe Defendant, that there were no escheat lands in North-Carolina. Escheat being a consequence of feudal tenure, one of the conditions of which wa*, that when the heritable blood of the, tenant, failed through want of relations, or by corruption of blood, that the feud should fall back to the lord. It must he admitted that was the correct idea of escheat — yet it is, Jo be observed, that this word hating been used by the Legislature so late as the year 1789, where they speak , too of lands thereafter to escheat, must have been understood by them to represent some other idea than that of escheat according to its strict technical meaning. They intended the act .should have some effect — and one sense in which this word is sometimes used even in the old books, is this, the accidental atid unexpected falling of lands to the lord for want of heirs. Another sense is, when those who held of the King (or public) die leaving no heir, arid the lands relapse infisemn. Co. Litt, 13, a. In this sense it is used in the act, and signifies that the University shall be entitled to all such lands as have heed once appropriated, hut by some accident; have been left without any legal proprietor — no matter by \v,hat *430means they came into this situation, whether by a dy ing will out heirs, or by becoming an alien to the govern-inet;>, as was the case wish many upon the adoption of a new torn;. If this interpre'aiion be correct, it will lead ns to et'Otheu question, whether Ji/ncJdehevny be dead without heirs, or became an alien upon the delaration of independence. There is m> poMtiie evidence with resp- n to the first o.‘ these points, but she presumptive evidence is stroi g enough to warrant the jury in drawing such a conclusion. Where a teen is absent a long time from the country, after going from it with an intention of n turning, as if ' e go to sea and is not heard of in Hie course of six <>; seven years — i< is usual in such cases to take probate of his wiil. grant letters of administration upon his p'tan. &c. lie may he (bad. and yet in such cases it may he utterly' impossible to adduce any direct proof of bis death, as suppose the who'e crew' to be sKp-Wt -eked and drowned in die ocean, in (he present case, the owner has been absent upwards of thirty yews, ami no person claiming to be heir has appeared in all that lime — this also is presumptive evidence sufficiently strong upon which to infer the fact that there are no heirs. It is proper here to remark, lhat he was absent nine years or thereabout, from this country, before the commence-m> lit of the war ; and if a space of six or seven years will raise these presumptions, then prior to the year 1776, when tli> declaration of independence took place, he win (lead without heirs, and the land bad escheated to lend Granville, all whose proprietory rights came to this State by the State Constitution, in this view of the case it is opparént, that the State was entitle'! to the laud in question immediately upon the formation of the State Constitution, not as vacant lands, but as lands once appropriated, and of course never since subject to the. laws and regulations respecting unappropriated land; and though the State may have granted these lands in the year 1780, to the Defendants, yet that was a grant in which die State was deceived or more properly .speaking, a grant issued by the officers of government, w inch the;, were not empowered, by any lew to issue. The *.ffi-ccr* a¡e but the servants of the public, appointed for special ends, whose acts are only binding when within the limits nrespribed to them by raw — the grant is therefore void, it will be contended that die Defe-daut has b‘-en in possession ever since the year 1780, a space of more *431than seven years, and Ihis "mast be admitted — but does it not follow from tlienee that <he Jus possessions which the State liad, was barred?. Nullum tempus occur-rit populo, has been a good general rule, without exception tiil the act of 1791. c. 15. "From 1780 then, to the time of grant to the University in 1789, this act had not run ; and since 1789, when the title of the University accrued, until the commencement of this action, seven years have not elapsed. So that there is no bar, and as the. State grant of 1780, is void, there is nothing to binder the Plaintiff's recovery.

it was argued, e contra, that the State grant of 1780,. was good, and had been so decided in a great number of cases, though granted for lands not strictly vacant within the. meaning of the entry laws ; for the State having once granted, shall not he permitted in ejectment, to say, nor shall any one claiming under the State he permitted to say, the grant issued erroneously, or fraudulently or surreptitiously, arid is therefore void.

Judge Haywood

(V/iijjams absent) — I am of opinion for.the University as to all the points agitated at the bar, and for the' reasons stated in the argument of the Plaintiff’s counsel. As to the grant of 1780, there have been many decisions that such grants shall be good until avoided,in a Court of Equity. I am of opinion for my own part, that the grant is absolutely void ab-initio, and that its invalidity may he shown upon a trial in ejectment. It was issued by the Officers of the State, without. any authority for so doing ; and is no more binding upon the State than if issued by any other person or persons not called Governor and Secretary — but let this point undergo further consideration and a decision that may settle the law — Í will not, oppose my opinion to that of adjudged cases.

The Jury found for the University, subject to the opinion of the court upon the question, whether the grant of 1780, under the circumstances above stated, was a valid deed or not.

Note. — Upon the trial of this cause, it was objected that the action was licit maintainable by the University, for two reasons ; First, because the Plaintiff in the Ejectment must have the right of possession or right of entry, which is tlie same thing, and he who claims by es-cheat has not tile jusintrantli. The keeping of possession by the Defendant, is a deforcement, 3 Bl. Com. 173, and is not to be overturned *432by the mere entry of another, but only by the? demandant’s shewing a better right in a course of law. 3 Bl. Com. 179, and in snch case he shall have a writ of escheat. 3 Bl. Com. 179 2d, the University being a corporation, can make no lease to try the title, but under their corporate seal, by deed duly executed,,; and here, there is no such lease.

IlArwoon J. (Wmiists absent) — The same objections were made a few terms ago at Mewbern, in a cause tried there. The objections as I understood, were made by Mr. Wood, and the court doubted, and took time till the next term, and.then overruled them ; and I concur with them in tile propriety of doing so. The lord by escheat, recording to circumstances, might sometimes enter, and sometimes was compelled to bring his writ of escheat : he was not always driven to a writ of escheat, as may bo seen in 2 Bl Com 245. When the possession was vacant, he might enter ; but when the deceased had leased ' for life or otherwise, or conveyid in fee tail, and the reversion only escheated, then lie could not enter, fur the right of possession was in another, hut must bring his writ of escheat. This observation reconciles all the books, and seems to me to be the tiue doctrine , and then there is no giound for the objection, as this case is circumstanced.— Vide 3 Burr. 1301, 1303. As to the second objection, the general rule of law is, that every lease by a corporation, must be under seal, and must be set forth to bo so ; but then when a corporation hrings an Kjectment in its corporate capacity, and its lessee sets (ortii a demise, an ouster, &c. we will M-eaume that lease to have been legally made, and no proof of it is necessary any more than in common cases ; and that presumption extends to its being done by deed under seal, anti therefore good — so that that objection fails also. Vide 1 Ray. 136, Partridge v. Ball. Carth. 390. Esp. Term Rep. 199, Farley, on the demise of the Mayor &c. of Canterbury v. Wood.

Note. — Upon the point of the grant sue Beynoldsv. Plum, and the note thereto, ante 106. The cases oiled to show that it is unnecessary for a coporation to make a deed under the seal of the corporation to try title in the action of ejectment, are supported by the modern practice. Adams on Ejectment, 194.