
    A. I. ANDERSON v. EMLUS MEADOWS AND ED. BYRD.
    (Filed 28 May, 1912.)
    1. instructions, Confusing — Appeal and Error.
    When tlie instructions of the court to tlie jury are erroneous in part, and so blended with those that are proper that the Court cannot tell how the jury was influenced by them in rendering their verdict against the appellant, a new trial will be awarded.
    2. State’s Lands — Cherokee Indian Treaties — Entry—Vacant Lands —Interpretation of Statutes.
    The lands acquired by the State by the treaties with the Cherokee Indians in 1S1T and 1819 were made subject to entry by the not of 1852 only when vacant, or not previously sold under the Cherokee land statutes; and lienee an eutry made of lands required by the act of 1819, chap. 997, to be sold is invalid, and a subsequent purchaser of the same lands under the provisions of the act acquires the title.
    3. Same-Instructions.
    The lands in disiiute in this action were a part of the Cherokee Indian lands acquired.by the State under the treaties of 1817 and 1819. The defendant deraigned his title through one who purchased them in 1820, under the act of 1819, and obtained his grant in 1804. The plaintiff claimed under a grant made in 18(52 on an entry made in 1859: Held, an instruction which made the controversy to rest upon the question of the seniority of the grants was erroneous, the land not being vacant and subject to entry at the time of the entry made by the plaintiff.
    4. State’s Lands — Cherokee Indian Treaties — Vendor and Vendee— Interpretation of Statutes.
    One who acquired a part of the Cherokee Indian lands under the act of 1810 did so by purchase, establishing the relationship of vendor and vendee between tlie State and himself.
    5. State’s Lands — Void Entry — Collateral Attack.
    An entry upon t-lie State’s lands which are not vacant at the time is void, and may be attacked collaterally.
    6. State’s Lands — Entry—Limitation of Actions.
    It appearing in this case that a part of the Cherokee Indian lands, the subject of the controversy, had been sold under the act of 1819, prior to the time of entry and grant under which the plaintiff claimed, it is Held, that the plaintiff’s right is not barred by the statute of limitation pleaded. Ritchie r. Fowler, 132 N. C., 788, distinguished.
    Appeal by defendants from Webb, J., at the Fall Term, 1911, of MacoN.
    The facts are sufficiently stated in the opinion of the Court by Mr. Justice Wcdlcer.
    
    
      Robertson. & Benbow for plaintiff.
    
    
      Johnston & Horn for defendants.
    
   Walker, J.

This is an action for the recovery of land. Plaintiff claimed title under a grant (No. 2596) issued to Jacpb Sliope in 1862, upon an ehtry made by him in 1859, and the will of Jacob Sbope devising the land to her. Defendants claimed under a purchase made by Clark Byrd from the State, under the act of 1819, providing for the sale of the lands acquired by treaties with the Cherokee Indians of 1817 and 1819. They connected themselves with Byrd by mesne conveyances. A grant was issued by the State to Clark Byrd, as purchaser, in 1864, and recites the fact that the tract is a part of the land acquired by treaty from the Cherokee Indians and sold under the provisions of the act of the General ^Assembly to Clark Byrd, who had paid the purchase money. The grant of Jacob Shope recites the fact that the tract therein described is a part of the land acquired by treaty from the Cherokee Indians and sold under the act of the General Assembly aforesaid, but it does not state that it was bought by Jacob Shope, but that he entered it. Both grants were duly registered, and it was admitted that they covered the land in dispute. It was also, admitted that the land described in the grant to Clark Byrd, No. 2934, was Section No. 11, District No. 17, in Macon County, acquired by treaty from the Cherokee Indians, surveyed by the State in 1820 and bought at a sale made by the commissioner for the State, by Clark Byrd, to whom the said grant issued in accordance with the statute concerning the sale of Cherokee lands. And the grant which was issued to Jacob Shope in 1859 upon his entry was for the same land as that described in the grant issued to Clark Byrd.

The court charged the jury that if they found as a fact that the plaintiff, Mrs. Anderson, is the same person to- whom the land was devised by Jacob Shope, the plaintiff would be entitled to recover the locus m quo, as the grant to Jacob Shope was issued more than two years before the grant was issued to Clark Byrd, under whom the defendants claim. The court, therefore, made the plaintiff’s right to recover depend solely upon the seniority of the grant to her father, who devised it to her. All of the charge is not set out, but whatever else the judge may have said to the jury, and however correct it may have been, if there was error in the instruction as to the grants, there must be a new trial, as the instructions were so blended that we cannot tell which one influenced the jury to give their verdict for the plaintiff. Tillett v. R. R., 115 N. C., 663; Edwards v. R. R., 129 N. C., 80. The instruction as to the grants was erroneous. It appeared upon tbe face of both that the land which plaintiff’s father had entered, and upon which his grant was issued, was not the subject of entry, as the act of 1852 only authorized the entry of those Cherokee lands which were then vacant, and lands which had been sold by the State no longer belonged to it, and were not, therefore, vacant and subject to entry. By his purchase at the sale which was made pursuant to the statute, the grantee, Clark Byrd, acquired, not a mere option, such as an enterer under the general law would get by his entry, but the right or interest of a purchaser, the relation being that -of vendor and vendee. The act of 1852, under which Jacob Shope made his entry, permitted an entry only of those lands when vacant or which had not been previously sold under the Cherokee land statutes. Frasier v. Gibson, 140 N. C., 275; Acts of 1852, chap. 119; Code, chap. 11. As it appears that the land in dispute had already been sold, it was not the subject of entry, and any grant issuing upon such an entry is void. The case cannot be distinguished from Harshaw v. Taylor, 48 N. C., 513. In that case the facts were that plaintiff made an entry of the locus in quo in 1852. The defendant purchased the same from the Indian land commissioners, raider the acts of 1836-7, it being Cherokee land.

■ Referring to the right to attack a grant collaterally, and staU ing ihat it depends upon whether the jurisdiction of the officer to issue it is general or special, Judge Pearson said: “Upon these two distinctions our case is easily disposed of. The act of 1852 confers a general authority. It extends to all unsold land at a fixed price per acre. But it was properly admitted by the plaintiff’s counsel that the grant to him could not be supported by the aid of that statute (act of 1852) ; (because) the statute only authorizes the entry and grant of vacant and unsold land, whereas the land in controversy had been previously surveyed and sold according to the provisions of- the statutes in reference to land lying in the county of Cherokee.” Speaking to a like question, Justice Connor said in Janney v. Blackwell, 138 N. C., 437 : “The statutes in force in this State for more than a century have permitted 'all vacant and unappropriated lands belonging to tbe State/ with certain well-defined exceptions, to be entered and grants taken therefor. Code, sec. 2151. ‘To be subject to entry under the statute, lands must be such as belong to the State and such as are vacant and unappropriated.’ Hall v. Hollifield, 76 N. C., 476; S. v. Bevers, 86 N. C., 588. By. making the entry as jorescribed by law, the enterer does not acquire any title to the land, but only a ‘preemption right/ or, as it is sometimes called, an ‘inchoate equity’ or right to call for a grant upon compliance with the statute. The grant, when issued, relates to the entry and vests the title in the grantee. The land when granted is no longer subject to entry as ‘vacant and unappropriated lands.’ Featherstone v. Mills, 15 N. C., 596; Hoover v. Thomas, 61 N. C., 184; S. v. Bevers, supra; Newton v. Brown, 134 N. C., 439. It follows, therefore, that if one lay an entry upon and procure a grant for land covered by a grant, he acquires no title thereto, for the reason that the State has by the senior grant parted with its title. Stanmire v. Powell, 35 N. C., 312. If the land be open to entry,-and a grant be issued therefor, such grant may not be attacked collaterally for fraud, irregularity, or other cause. This can be done only by the State or by pursuing the provisions of section 2786 of The Code. But if the land be not subject to entry, the grant is void, and may be attacked collaterally.”

"We think, therefore, that the instruction of the court was erroneous.

There were questions discussed as to the statute of limitations, with special reference to the bearing of Ritchie v. Fowler, 132 N. C., 788; Frasier v. Gihson, supra, upon the case; but the facts of those cases and this one are not alike. In the two former eases there was a conflict between entries made under the act of 1852 and subsequent modifying statutes, while in this case the land had been sold under the act of 1819 and subse.quent enabling statutes, and was, therefore, not the subject of entry under the other acts mentioned. Whether Clark Byrd complied with the statute is a question not presented. He paid the purchase money, though it does not appear when it was paid, if that be material. Kimsey v. Munday, 112 N. C., at p. 830, citing Gilchrist v. Middleton, 108 N. C., 705.

With the facts now before us, we are of the opinion that there was error in the instruction given to the jury.

New trial.  