
    
      Hardy v. Jones.
    
    The lessor of the plaintiff claims title to the land in question, under a grant from the State, bearing date 10th July, 1788, which land is described and conveyed in said grant as the confiscated property of a Governor White. The lessor of the plaintiff has been in possession of part of the land, claimed ,in ,said grant, from the date thereof up to the present time, but as to that in dispute, remained in possession, of part, up to the 23d November, 1793, and as to the remaining part in dispute, has never been in actual possession.— There was no evidence, except the above grant, to prove the land confiscated, as described in said grant. The defendant offered in evidence, as color of title, the last will and testament of Edward Buncombe, who died — 1778, in actual possession of that part of the land in dispute, which has never been in the actual possession of the lessor of the plaintiff. Edward Buncombe, in, and by his last will and testament, makes the following devise to his son, Thomas Buncombe, viz. “ I give and devise all those, my freehold, lands, tenements and hereditaments, which I hold in fee simple, situate and lying on Kindrick’s Creek, in Tyrrell County, North-Carolina, with the rents, issues, and profits of all, and singular, the said premises, unto my son Thomas Buncombe, a minor, to have, and to hold, the said tenements, lands, and hereditaments, and premises, to him, the said Thomas Buncombe, and his heirs forever, on the proviso of his paying to Elizabeth Buncombe and Hester Buncombe, his sisters, one thousand pounds proc. cash, on their days of marriage, or attaining to twenty one years of age. My intention in this devise of lands, to my son Thomas, proceeds from my disinclination to dismember any part of the estate, and that he shall fulfil the bequeath of one thousand pounds proc. to each of his sisters, on their arrival to the age of twenty-one years, or days of marriage ; and further, if either of my abovementioned daughters, should die before her marriage, or arriving at twenty-one years of age 5 in such case, the legacy appertaining to her, by my bequeath, to revert to my son Thomas ; and further, in case of my son Thomas’s death, without legitimate children, that my said lands, &c. before recited, shall descend to my two daughters, Elizabeth and Hester, as to heirs, to them and their children forever.
    Thomas Buncombe went into actual possession of that part of the land in dispute, possessed by his father at his death, and died in possession, intestate, and without issue ; after Thomas Buncombe’s death, on the 23d November, 1793, a division of the lands of Thomas Buncombe was made between Elizabeth and Hester aforesaid, the former, at that time, the wife of John Goelet, and the latter the wife of John Clark, which division was made by an order of the County Court of Pleas and Quarter Sessions for the County of Tyrrell, at October Term, 1793. The Surveyor and five freeholders, appointed to divide the aforesaid land, returned the said division at January Term, 1794, of Tyrrell County Court, which was approved of by said Court, and ordered to be registered, which was done, agreeably to said order, on 2d April, 1794, all which appears upon said division as above stated. The defendant, James Jones, is the tenant in possession under the heirs of the above John Clark, and Hester his wife, which heirs set up title to the land in dispute under the above last will and testament of Edward Buncombe, and the above division, as colour of title ; and as to that part of the land in dispute, which Edward Buncombe died actually seized and possessed of, the possession, of the same has been transmitted to said heirs, uninterrupted, as above stated, from the death of Edward Buncombe to this time : As to the other part in dispute, the same has remained in the actual adverse possession of the said John Clark and his wife, and their heirs as above, from the 23d November, 1793, the date of the above division, to this time. The above possession of the defendants extends up to the line made by the above commissioners, which line includes the land in dispute.
    1st....Is not the lessor of the plaintiff bound to prove the land mentioned in his grant, to be confiscated, as described in his grant ?
    
      2nd....If the lessor of the plaintiff should not be bound to prove the land confiscated, as described in his grant, does the said grant convey in itself absolute title, or colour of title ?
    3d....Is the above last will and testament of Edward Buncombe, and the above division; or either of them, color of title, no petition for partition having been exhibited, on the above trial ?
    
   Taylor, C. J.

delivered the opinion of the Court.

Upon the first question submitted to the Court, in this case, a majority are of opinion, that the lessor of the plaintiff is bound to prove the land to have been confiscated; and, consequently, that a new trial ought to be granted.

Entries could be made of such lands only, under the authority of the act of 1777, as had not been granted by the Crown of Great-Britain, or the Lords Proprietors, before the 4th July, 1776, or which accrue to the state by treaty or compact.

The land now claimed was not the subject of entry under this law ; because it had been granted previously, either by the Crown of Great-Britain, or the Lords Proprietors, as appears from the grant itself.

But by the confiscation law of 1782, the Governor is authorized to issue grants to the purchasers of confiscated lands, upon the return of certain proceedings being made to him. The grant states the land to have been sold as the confiscated property of Governor White, but no proof has been adduced, that it ever was so confiscated ; which might easily be made if the fact were so, since the proceedings required by the act must have been returned to the Governor previous to his issuing the grant.

The seisin of Governor White could not be divested out of him and vested in the State, without office found, or some matter of record. This is a principle of the common law, so clear as to require no authority; and so conformable to the principles of our government as to merit quite as much respect as it receives in England, where it is considered as one of the principal barriers, placed around the liberty of the subject, that the King cannot seize any man’s possessions upon bare surmise without the intervention of a jury.

Vacant lands, the State may grant, and a title so derived in the common form, would, in this Court, be deemed conclusive. But when the plaintiff, who must rely Upon the strength of his own title, and not on the weakness of the defendant’s, shews that the lands were not vacant, he must trace his title still higher than the grant, and prove the authority on which it issued.  