
    WEAKLY’S LESSEE vs. WILSON AND SIMMONS.
    The plaintiff claimed under a military grant for 640 acres to Thomas Hogg No. 1271, dated Nov. 16th, 1790, and registered April 29th, 1807 ; upon an entry dated January the 10th, 1786, in the following words, “Thomas Hogg assignee of Robert Mann, 640 acres, on yellow creek four, or five miles below the chickasaw trace, running so as to include a black oak tree marked W. B. for complement.
    The defendant claimed under a military grant to William Allen, dated, May the 20th 1793, registered Nov. 30th 1795, upon an entry in these words. December the 7th, 1785. William Allen assignee of John Grave, 640 acres, on the first big fork, on the west side of yellow creek ; to adjoin Mills Ramsays’s claim on the west, running as the law directs.
    
      A grant not registered within the time required by law,is only voidable by the state. Construction of entries, and what certainty required.
    Mills Ramsays entry, was dated August the 2nd, 1784, on yellow creek, and to adjoin Israel Harmon’s upper line, running up the creek for quantity.
    The counsel for the plaintiff,objected to the asking where Mills Ramseys, claim was reputed to lie. It was insisted that the calls of an entry ought to speak for themselves. That the defendants ought to shew by record, where Harmons claim lay ; then Ramsays, and then shew, that their survey adjoined in the manner called for in the entry.
    Powel, j. Thought the question improper. Reputation could not be resorted to : Suppose Harmons entry vague ; the other two dependent entries, would of course be so, as he was inclined to think at this time. It is certain however, that common reputation alone cannot be the ground of a claim.
    Overton j. Said, he wished to know the true ground of difference. If the fact was, that Harmons entry was special, which is the presumption, until the contrary appear,he should desire to know how it was surveyed, whether comformably to the entry, or not. If an entry be made to adjoin another special entry ; and the latter is not surveyed conformably to the entry, the adjoining enterer is not obliged to follow the mistake ; but should survey, as was originally intended.
    It appeared in testimony, that yellow creek headed to the south, and ran nearly north. That Harmons claim was surveyed and granted about three miles lower down the creek, than William Allens, which the defendants claim; that Ramsays survey adjoined Harmon above, and lay about two and an half miles lower down than Allens.
    
      Anthony Foster, surveyed Hoggs, Harmons, and Ramseys claims. The defendants claim lies on a creek latterly galled the town fork, which issues from a large spring, about three quarters of a mile from the creek, where it empties itself in. Allens, claim takes in the head of the fork, lying on both sides of it, near the mouth. A number of witnesses were produced, on the part of the defendant, shewing that about the time AllensEntry was made; before, and for some time after, what is now called the town fork, was called the first large fork from the mouth of the creek, and except two branches called Indian creek, and Racoon creek, this was the first large run coming in on the west side, in going up the creek. It was proved on the part of the plaintiff, that these runs were now and for a considerable time past, called creeks. Mr. Hawkins went to that part of the country when it was first settled; in the year 1793, when he did not hear of any name for these runs; they obtained names after he went there. It was also proved that the chickasaw trace refered to in the plaintiffs entry, lay about seven and three fourth miles, from the land in dispute.
    Dickenson for the plaintiff ;
    we have the oldest grant‘ and must hold unless the defendants entry be sufficiently descriptive of the place he has surveyed, and we insist it is not. We do not rely on our entry. The defendants entry does not give any name to the creek, but describes it incorrectly, viz. that it is the first large creek, on the west side. Now this is not the case: because a fork could not be made by a spring not more than three quarters of a mile from the mouth—such a thing never was heard of. Beside, there are two runs below this, which are not very large, but they are nearly as large as the one on which they claim. The expression, first large creek, is not relative, therefore, they ought to shew, without any kind of doubt, that it is the first large creek. It is clear, this entry was intended to be on Indian creek, at the mouth of which, Ramsey’s claim is surveyed. Had it been surveyed there, it would have joined Ramsey’s, exactly as the entry calls for, provided Harmon and Ramsey had surveyed in a square, which by law they ought to have done. No difficulty can occur in relation to registration. The case of Merit’s lessee, vs. Hendrick, in the federal court, some years past, decides this question. In that case the grant never had been registered. The registration of our grant surely can put it in no worse situation ; if good without registration, it cannot be any worse afterwards.
    Grundy and Haywood for the defendants.—
    There are two grounds upon which we rest our case:
    1st. The time for registering grants had expired before the plaintiff's was registered, and no subsequent act could give validity to a grant which had become void. Such an act would be retrospective had unconstitutional.
    2d. Our entry is special, and the survey conformable thereto. The act of November, 1777, declares, that all grants shall be, registered within twelve months from their dates, otherwise to be void; and a clause to this effect, is inserted in every grant from the state of North-Carolina. The time allowed fer registering grants had been extended from time to time until the 27th of October, 1799, and was not renewed until the 6th of April, 1801; therefore, by the very words of a grant, all that were in existence on the 28th of October, 1799, which were not registered, are void in the language of the grant, which declares them so. The grant of the plaintiff, is therefore as a blank piece of paper. It is the more important that this should be the case, because registration in the county, is the only notice that a person can have. A survey is not notice, because there is no record kept of it, except a plat filed in the secretary’s office, Neither that, nor the recording of the grant there, was ever by our law intended as notice ; It is the registration of the grant in the county.
    After the grant becomes void, the constitution forbids its being revived so as to affect our claim.—Such an act would be retrospective, art. 11, s. 20. It may be contended, that upon the passage of a subsequent law giving further time to register, the registration, after being made, would operate by relation to the date of the grant. Relation is intended to avoid an estate obtained by wrong, and not by right.(1)
    2d. In relation to our entry, we must insist their grant is void under the act of 1786, c. 20. Ours is oldest entry, and ought to have been first surveyed and granted.
    No doubt can be entertained respecting the specialty of the entry, nor that the most substantial call of it was complied with. We could not comply with both calls—adjoin Ramsey’s, and be on the first big creek too; the creek is only three quarters of a mile long, and our survey might have included the whole of it. As we could, by beginning at the mouth of the creek, include, agreeably to our entry, the land in dispute ; it can be no objection in the mouth of the plaintiff, that we did not. The manner in which we have surveyed, has been a benefit instead of a prejudice to him. We could have included the land in dispute, by beginning at the mouth of the creek, and surveying in a square ; but we insist we had a right to survey in an oblong, not exceeding in length, twice its breadth.
    That this is the creek called for, many circumstances prove. We have produced a copy of a grant to Archibald Allen, the entry of which was made about the same time with ours. This tract was surveyed on the next creek above, on the west side; in the entry it is called the second creek on the west side. Robert Nelson appears from the entries to have been the locator of both the plaintiffs and defendants entries. He surveyed ours, and there is a strong probability, that the entries were by him intended not to clash. We have no proof of the marks called for in the, plaintiff's entry, nor do we know it was surveyed at the place Nelson intended, leaving its vagueness entirely out of view.
    Whiteside in reply.
    It has often been determined that an unregistered grant is not void. It is too late to disturb this point now; though we have no account of the reasons which induced this opinion, it must remain at rest. In North-Carolina, the legislature frequently prolonged the time for registering, as in Ird. 640. In page 664, the cession act gives time for all North-Carolina grants to be registered. Upon examination, we shall find the time never did expire till 1794. All the acts giving further time, say, that the grants shall, to all intents and purposes, be as good and valid, as if registered within time.—These acts shew, the legislature did not think the grant void. If considered void, they would speak of them in such case as lapsed lands, as they have done in other cases. No third person can take advantage of a want of registration. We all agree, that an entry was intended to give notice ; now Allen’s entry never could be construed to give notice that it lay here ; it calls to join Ramsey’s, and that is the most special call in it. The legislature were not satisfied in requiring that entries should be so special, that others might know how to adjoin, but they have declared what the enterer shall do, Ird. 293, s. 5.—Take away the call for Mills Ramsey, and all is vague and uncertain.
    Their entry does not state how it is to lie above the mouth of the creek, whether in a square or oblong of particular length ; all is in a state of uncertainty. Whether a creek be one or ten miles in length, cannot be material as to locations. Admitting that this was the creek for a moment, the survey should have begun at the mouth of it, and run in a square. Every entry should possess so much certainty, that every person could see it lay at a particular place, and no other, and know how to enter adjoining it in safety.
    Haywood begged permission of the court to state, that the act of 1789, c. 3, commonly called the cession act, had no view of prolonging the time of registration ; it had but one object in view, the cession to the United States.
    Whiteside answered, that by the cession act, North-Carolina retained the power of legislating respecting the land claims of this country ; and they did so, until we had a legislature in 1794. Having that power, they continued the term for registering from time to time, so that there never was a lapse until our own government took place.
   Per Curiam.

The acts respecting the registration of grants have been previously considered. There was not a regular continuance of these acts in North Carolina, before the expiration of others, as has been stated at the bar. Their legislature were in the habit of making subsequent laws authorising registration, and confirming grants which had not been registered in time. A short review from the commencement of that government will shew it.

The first act was in November, 1715, allowing twelve months ; their confirmatory acts in the order in which they were made, are those of April, 1741, December, 1756, April, 1760, January, 1764, November, 1766, December, 1770, 18 months allowed. January, 1793, April, 1777, April, 1780, 2 years allowed ; thence continued every two years, until November, 1788, and when the cession act passed, but one year of this term had elapsed.

The first act under our own government, was 1794, c. 22, two years as usual. The next, 1797, c. 42, 1801, c. 20, 1803, c. 57, 1805, c. 16, twelve months allowed ; and the act of 1807, c. 85, allows one year where the time had expired, and two years for all others. After this view of the subject of the registration, is it probable that North-Carolina considered grants not registered within time,as void? surely not: nor in fact could they upon principles of law. The condition of registration expressed in the grant, is a subsequent, and not a precedent one. The first part of the grant absolutely vests the estate ; after which,it cannot be divested or revested without some act of the grantor; and none but the grantor or his heirs can take advantage of the breach of this condition. No stranger can do it. The grant, by a breach of condition absoquent, is not void, it is only voidable by those who made it, and no others, and remains in full force until it is thus avoided. Littleton, s. 350. Co. Lit. 217, b, 218, a, 206, a and b, 179, a, 214, a and b.

As the state cannot enter for a breach of condition, they must avoid their unregistered grants by a legislative act ; they are incapable of doing it in any other way. When legislating on the subject, they speak of such lands as lapsed. There being no legislative act declaring the revestment of this land in the state, on account of the plaintiff‘s grant not having been registered, we are bound to say, that the title never was out of Hogg, and those claiming under him.

The entry, and the manner in which it was surveyed, are the next considerations which present themselves.

The calls in all entries seem divisible into two classes :

1st. Prominent.

2d. Subordinate.

Entries should be so certain, that the surveyor and others, may, by reasonable exertion, ascertain the spot. After it is ascertained, the surveyor has an option to run it (so that he complies with the calls) in an oblong or square, unless where the lines of older claims interfere, when it may be run in any shape adjoining those lines, where an entry calls to adjoin a particular tract, or to include a particular spot, the latitude of surveying, so as to include the spot in any part of the tract, and to run in an oblong or square, is left to the surveyor.

Calls for natural objects, such as rivers, creeks, branches, springs, &c. are generally prominent calls when compared with artificial ones, such as letters on trees, lines of others, &c. It is a rule of reason, as well as of law, that if all the calls of an entry cannot be complied with, those which are subordinate in point of notoriety, may be rejected by the court, and abandoned by the party, and the claim shall be valid notwithstanding ut res magis valeat quam pereat. See Hughes Reports, 3, 14, 45, 168, 194.

The jury will enquire, whether, what is now called the Town fork, was, when Allen’s entry was made, generally known by the description of the first big creek (from the mouth in going up) that empties in Yellow creek on the west side. When we say generally known, we mean by those persons who had opportunities of knowing the creek, and conversing with those who did. A few individuals, compared with the number of others who knew the creek, calling it the first creek, would not be sufficient, when the majority of persons acquainted with it, called it by another name.

The length of this creek is an important enquiry with the jury. If a whole creek would be included in a survey of the size of the defendants, or Allen’s, by running in an oblong, not more in length than twice its breadth, the entry is sufficiently certain, and it does not lie in the mouth of the plaintiff to say, you ought to have run to the mouth of the creek, and thus injured me more than you have done ; nor that you had no right to run upon other lands than those I claim. The simple question is, could the surveyor, by running the tract in any manner the law allowed, include the present interference in Allen’s survey ? If he could, and the defendants grant covers it, they must hold. If the jury should be of opinion, that Allen’s survey could not join Ramsey, and lie on this creek too, the surveyor was correct in surveying it on this creek, provided it is the one called for in the entry.

Verdict for the defendants.  