
    W. W. FRAZIER v. EASTERN BAND OF CHEROKEE INDIANS.
    
    (Filed 18 December, 1907).
    1. State’s Lands — Cherokee Indians — Incorporating Act — Deeds and Conveyances — Grant.
    Where a deed has been executed to the Eastern Band of Cherokee Indians prior to the enactment of chapter 211, Private Laws 1889, the provisions of section 4 thereof have the full effect of a legislative grant.
    2. State's Lands — Enterer—Vendor and Vendee — Limitation of Actions.
    An enterer upon the State’s vacant and unappropriated lands has an equity by virtue thereof, and, by the payment of the purchase money, the right to call for a grant to perfect his claim of legal title; and the relation of vendor and vendee, with all the incident rights and equities, is thereby established; but a failure of the enterer, or those claiming under him, to call for the grant within ten years after entry, would presume an abandonment in favor of those claiming under and by virtue of a junior grant. Revisal, sec. 309.
    3. Same — Enterer—-Equities—Grant-—Abandonment—Unreasonable Delay.
    Deed was made to defendant corporation, under which it claimed, and registered S July, 1S80; title was confirmed by chapter 211, Private Laws 1889. Plaintiff, claiming under a senior grant, took no step to recover or assert title to the land in question, embraced in defendant’s deed, for more than twenty-three years after his equity had been acquired, for nearly twenty years after payment of purchase price, for more than fourteen years after the enactment of chapter 211, Private Laws 1889, and for more than eleven years after he had taken out his grant: Held, his right was barred by unreasonable delay.
    Hoke, J., concurring in result; Brown, J., dissenting.
    Civil actioN, tried before O. II. Allen, J., and a jury, at March Term, 1907, of the Superior Court of SwaiN County.
    Judgment for defendant. Plaintiff appealed.
    The facts sufficiently appear in the opinion.
    
      A. M. Fry and Shepherd & Shepherd for plaintiff.
    
      Bryson & Blach and George II. Smathers for defendant.
    
      
       Note by Clark, C. J., upon history of Indians in this State.
    
   Ct.aR.tt, C. J.

Action for recovery of land of tbe defendant, the “Eastern Band of Cherokee Indians.” Besides other claim of title (the controversy ns to which we do not find it necessary to consider), the defendant set np a deed from William Johnson, 9 October, 1876, to the Eastern Band of Cherokee Indians for the Qualla boundary of land, which, it is admitted, covers the land in controversy, which deed was executed in pursuance of a decree of the United States Circuit Court for the Western District of North Carolina, entered at November Term, 1874, in a cause therein pending, entitled “Eastern Band of Cherokee Indians v. W. H. Thomas and others"

Section 4, chapter 211, Private Laws of 1889, entitled “An act incorporating the Eastern Band of Cherokee Indians,” reads as follows:

“In all cases where titles or deeds have been executed to the said 'Eastern Band of Cherokee Indians,’ or any person or persons in any capacity in trust for them under that name and style, hy person or persons, either collectively, individually, officially or in any capacity whatever, such deeds or titles are hereby declared valid against the State and all persons or any person claiming by, through or under the State by virtue of any grant dated or issued subsequently to the aforesaid deeds or titles to the said 'Eastern Band of Cherokee Indians.’ ”

The plaintiff claims title under eight grants issued to D. Lester, assignee of S. Everett, 4 November, 1891, based on entries made 15 March, 1880, surveyed 18 May, 1880, and purchase money paid 27 June, 1883. The grants under which plaintiff claims were issued subsequently to the above act, which was, in effect, a legislative grant, passing to the defendant the legal title as fully as the State could have conveyed it, if the statute had directed the Secretary of State to issue a grant to defendant and this had been done.

This act did not impair, it is true, any rights of Lester, under whom the plaintiff claims. He had an equity, by virtue of bis entry and payment of -the purchase money, to call for a grant to perfect his claim by the legal title. The relation was that of “vendor and vendee, with all the rights and equities incident thereto.” Frasier v. Gibson, 140 N. C., 278, in which it is further held by Connor, J., that a delay to call for the grant within ten years after the entry would presume an abandonment. As the entry under which the plaintiff claims was made 15 March, 1880, and the grant was not issued till 4 November, 1891, it would seem that the plaintiffs assignor was then barred of the right to call for a grant, especially in view of the legislative grant by chapter 211, Private Laws 1889, of the land to, the defendant.

But, however that may be, the Johnson deed to the defendant was registered in Swain County, where the land lies, 8 July, 1880, the title thereto was confirmed by the aforesaid act, 11 March, 1889, and the plaintiff took no steps to recover the land or otherwise assert his equity till the summons was issued in this action, 13 July, 1903, more than twenty-three years after his equity had been acquired by the entry made by Everett, 15 March, 1880, nearly,twenty years after the payment of the purchase money, 27 June, 1883, more than fourteen years after the legislative grant of the land, 11 March, 1889, and even more than eleven years after the plaintiff took out his grant, 4 November, 1891.

The plaintiff has the junior grant and not the legal title. In no view has he had any other right than an equity to call for the title, and, in any aspect, he is barred from now asserting this, by unreasonable delay, as well as by the lapse of ten years. Eevisal, sec. 399, which statute is duly pleaded. Leges subveniunt vigilantibus non dormieniibus.

What good reason caused the plaintiff, and those whose rights he has acquired, not to take steps to assert them during all those years, we know not. The law conclusively presumes that they were good and sufficient, and that those reasons could have been shown by the defendant, if the plaintiff had taken action in tbe reasonable time contemplated by tbe law, for men are not usually slow to assert claim to property, if well founded. In tbe lapse of time witnesses die or move away, evidence is lost, facts are forgotten, documents are destroyed or mislaid. Therefore, tbe law places time itself in place of that wbicb it bas destroyed. If Time carries in one band tbe scytbe to destroy tbe muniment's of our titles, be carries in tbe other tbe hourglass to measure out tbe period of our protection.

In McAden v. Palmer, 140 N. C., 258, tbe defendant not only made tbe senior entry, but had the land surveyed and paid tbe purchase price before the plaintiff even made bis entry, but, as tbe latter obtained bis grant and registered it first, it was held by Brown, J., that tbe delay of tbe defendant to assert bis equitable right to have plaintiff declared a trustee for bis benefit, for ten years after tbe registration, of plaintiff’s grant bad vested tbe legal title in him, was a complete bar, by virtue of Tbe Code, sec. 158 (now Revisal, sec. 399), to tbe assertion of such equity, citing Ritchie v. Fowler, 132 N. C., 190. To tbe same effect, Johnson v. Lumber Co., 144 N. C., 717.

Tbe defendant’s deed from Johnson, covering tbe locus in quo, was registered in Swain County, 8 July, 1880, and was validated by tbe act of tbe General Assembly, 11 March, 1889, and tbe plaintiff is barred by_ failure to assert bis rights within ten years from tbe latter date. Tbe plaintiff has at no time been in. possession of the premises.

No Error.

Note. — As a matter of both legal and historical interest as well, it may not be amiss to note here tbe uniform kindly treatment by this State of the Oherokees in her borders, of which the above act of 11 March, 1889, in confirming their titles, is in keeping. Long before tbe treaty-making power was surrendered by the States to the General Government by tbe Constitution of tbe United States, North Carolina set apart to tbe Indians a large territory as a bunting ground, and forbade tbe entry and grant of tbe same. In 1777 tbe Blue Nidge was made tbeir boundary line.

Then, in 1783, tbe territory described in tbe act, brought forward as section 2346 of Tbe Code of 1883, was set apart to tbe Cherokees. This territory originally included a very large part of what is now tbe State of Tennessee. Tbe next section of tbe act of 1783 forbade tbe entry and grant of these lands. Section 2347 of Tbe Code of 1883. Tbe courts held this reservation sacred to tbe Indians until tbe Indian title was extinguished by treaty with tbe United States. Strother v. Cathey, 5 N. C., 162. In En-che-lah v. Welsh, 10 N. C., 155, it was held that Indians in possession under treaty need not take out any grant from tbe State. In Belk v. Love, 18 N. C., 65, it was held that tbe treaty of 1819 did not require perpetual residence by tbe Indians on tbe lands reserved to them.

Under tbe terms of tbe treaty of New Ecbota, of 29 December, 1835, purporting to have been made between commissioners appointed by tbe United States and tbe chiefs and bead men of tbe Cherokee Nation (though it is now generally believed that, in fact, there was no treaty at all, but it was enforced by tbe United States to avert war between tbe State of Georgia and tbe Cherokees in Georgia), tbe bulk of tbe Cherokee Indians east of tbe Mississippi were forced to move west, under display of arms made by Gen. Winfield Scott. Tbe history of this treaty is given by John W. Powell, Director of Smithsonian Institute, in a volume'issued by tbe Government.

There was a remnant of tbe Cherokees, however, left in North Carolina without any organization. North Carolina, realizing tbe helpless and dependent condition of this remnant of a once powerful tribe, enacted legislation for tbeir benefit.

Among others was tbe enactment which avoided all contracts made since 18 Hay, 1838, for an amount equal to $10 or more, between Indians and white persons, unless reduced to writing and signed in the presence of two witnesses. This is now Eevisal, sec. 975, and was cited in Rollins v. Cherokees, 87 N. C., 248. The North Carolina Cherokees'were entitled to certain moneys, after the war, which the United States refused to pay over to them unless they moved to the Indian Territory, or secured an act of the Legislature of North Carolina allowing them to remain permanently in this State.

Such act was promptly passed by the Legislature. Laws of 1866, ch. 54. During the year 1868 the North Carolina Cherokees endeavored to effect a tribal organization or constitution to live under. This w'as held invalid by the decision of the Supreme Court of the United States, in the case of Eastern Band of Cherokee Indians v. United States and Cherokee Nation, West, 117 U. S., 288. The Court held in this case that the North Carolina Cherokees who refused to go west with the tribe were not a nation, in whole or in part, and could not have a tribal organization, as they were citizens of North Carolina and bound by her laws. State v. Ta-cha-na-tah, 64 N. C., 614. This has been cited in State v. Wolf, at this term.

About that time it was found that a great many of the title papers of the Indians to the Qualla boundary and other lands had been lost or destroyed, without having been recorded. Under the decision of the United States Supreme Court, supra, it was doubtful whether these Indians had any capacity as an organization to sue and be sued or to hold lands conveyed to them as such. The Legislature of North Carolina again came to their relief and passed the act (Private Laws of 1889, ch. 211) above quoted. See, also, chapter 166, Private Laws of 1895, and chapter 207, Private Laws of 1897, amend-atory of chapter 211, Private Laws of 1889, supra.

There is much in the history of the Cherokee Indians and tbeir conduct since tbeir treaties with tbis State wliicb deserves preservation. Junahishdh, tbe great Oberokee warrior, distinguished bimself at tbe battle of tbe “Horseshoe,” and General Jackson largely attributed to him tbe victory. In recognition, the Legislature of North Carolina bestowed on him tbe beautiful tract of land adjoining Eobbinsville, in Graham County, now tbe property of George Walker, Esq. Tbe Legislature has, of recent years, directed a monument to be erected over bis grave.

It will also be recalled that, when Tecumseh came south to organize a general confederacy of tbe Indians, be bad swept tbe Oberokees into tbe movement bad not Yeonaguskeh, by bis earnest eloquence, recalled tbe warriors to fidelity to tbeir treaty obligations with tbe whites.

Hoke, J.,

concurring in tbe result: I concur in tbe disposition made of tbis case, and for tbe reason that, in a trial free from error, both in tbe charge of tbe court and its rulings on questions of evidence, it has evidently been shown that, at tbe time tbe plaintiff’s entries were made and bis grants issued, there were older grants of tbe State outstanding, covering tbe land in controversy and rendering same no longer tbe subject of entry.

As the opinion of tbe Court decides tbe case on other grounds in defendant’s favor, I do not care to make further statement concerning it, and concur in tbe result.  