
    
      Ex parte Richard Williams and Wife and others.
    
      Pscheat — Practice.
    Where land has been declared escheated under legal proceedings, on the ground that the last owner died without heirs, persons claiming to be his heirs may, with a view to demanding compensation from the State, come in within the time prescribed by the Act of 1787, and, on petition, obtain an order from a Judge at Chambers, for leave to make up an issue at law in order to have their right determined ; and it makes no difference in such case, that the Legislature has granted away the right to the land in question..
    BEFORE GLOYER, J., AT CHAMBERS, ORANGEBURG, SEPTEMBER, 1860.
    This was a petition presented to his Honor, of which the following is a copy:
    “The petition of Richard Williams and Nancy his wife, of Rowan County, in the State- of North Carolina, Catharine Hendricks, widow of the late Thomas Hendricks, Thomas Hudson and Mary his wife, of Davie County, in the State of North Carolina, who is the daughter of Charlotte Pickier, the sister of the late Josiak H. Smoot, of the District of Sumter, in the State of South Carolina, Thomas N. Smoot, of Huntington, in the State of Tennessee, Alexander Fraley and Mary his wife, of White County, in the State of Tennessee, the petitioners, sets forth that the said Nancy, the said Catharine, the said Mary Fraley, are the sisters, the said Mary Hudson the niece, and the said Thomas N. the brother, of the late Josiah H. Smoot, of the District of Sumter, in the State of South Carolina; and further showeth that the said Josiah H. Smoot, on or about the 1st day of June, A. D. 1852, died intestate, leaving a considerable real estate, to wit, 450 acres of land, lying and situate in the said District of Sumter. That Amos A. Nettles was nominated and appointed escheator of said district. That the Sumterville Academical Society was incorporated with power to hold property escheated or liable to escheat in said district to an amount not exceeding fifteen thousand dollars. That the said Amos A. Nettles, escheator, at the instance of the said society, under the erroneous information and belief that there were no heirs or next of kin of the said Josiah, did, on the 7th day of May, A. D. 1855, pursuant to the directions of the Act of General Assembly ratified in the year of our Lord 1787, moré commonly called ‘An Act to ApjDoint Escheators and to Regulate Escheats,’ issue to the Honorable the Court of Common Pleas at Sumter Court House in said district his certain notification that the said real estate of the said Josiah had escheated. That on the 17th day of November, A. D. 1855, an inquisition of escheat was held, at which no person or persons appeared to claim the said land either by purchase or descent. Thereupon his Honor, Judge Munro, the presiding Judge, issued his certificate of the same, under his sign manual and the seal of the Court. That the Clerk of the said Court, on the 2d day of January, A. D. 1856, advertised the same once a month for six months. That the time for advertising expired on the 2d day of July, A. D. 1856. That no claimant appeared within twelve months thereafter. That on the 20th day of March, A. D. 1858, a process issued from the said Court pronouncing the said land escheated, .and an order for the sale thereof. That the said society purchased the same at four dollars ($4.00) per acre, and being the parties to whom the money, under their said right to hold escheated property, was payable, receipted therefor, and acquired the title from the escheator. The said society immediately thereafter sold the same to one Francis M. Beckham, at the rate of six dollars ($6.00) per acre.
    “ Your petitioners further say that, by the 5th section of the said Act of 1787, they have further time, to wit, five years, in which to make good title to such land, in the Court of Common Pleas, on an issue tried, and to receive adequate compensation. Your petitioners further show that up to the 29th day of October, 1857, Mary Hudson was under the disability of infancy, and three of them have been and now are married women, under the disability of coverture. That by the 9th section of the said Act it is provided that nothing therein contained shall prejudice the rights of individuals having legal title, who may be under the said and other disabilities, until three years after such disability shall be removed. That the State, in granting to the said society the aforesaid right to hold property escheated or liable to escheat, made no provision for the contingency which has arisen, and are liable to make compensation to your petitioners. To follow the directions of the Act, your petitioners pray the Court for an order directing an issue, to which the Solicitor of the Middle Circuit, the escheator and society aforesaid to be party defendants, and by which they propose' to establish their kinship, and the facts herein alleged.”
    “Abstract of Affidavits. — The affidavits of Richard Williams, Nancy Williams, Catharine Hendricks, Thomas Hudson, and Mary Hudson, depose that Nancy Williams, the wife of Richard Williams, Mary Fraley, the wife of Alexander Fraley, and Catharine Hendricks, are the sisters and John N. Smoot the brother of the late Josiah H. Smoot, of Sumter District, whose property has been escheated for want of heirs; and that Mary Hudson, the wife of Thomas Hudson, who was the daughter of Charlotte Pickier, deceased, who was the sister of the said Josiah H., is the niece of the said Josiah. That they are the only heirs and distributees of the said Josiah. That the proceedings in escheat of the property of the said Josiah never came to their knowledge or the knowledge of any of them until after the escheat thereof, ■and as late as July, A. D. 1860. That three of them have been and now are married women, and are recently for the first time advised that they are entitled to prosecute their claims to the escheated property aforesaid.
    "Affidavit of A. E. Pickier deposes to the following entry in the family Bible of Joel C. Pickier in handwriting of the said Joel, to wit: ' Mary 0. Pickier, daughter of Joel C. Pickier and Charlotte A. Pickier, was born Oct. 29th, in the year of our Lord 1836.’ Deponent was a brother of the said Joel; lived within four miles of him; recollects the birth of the said. Mary, now the wife of Thomas Hudson ; recollection corresponds with the said entry; and further deposes that the said Charlotte was a sister of the late Josiah H. Smoot, of Sumter District, in South Carolina.”
    His Honor pronounced judgment as follows:
    " By virtue of a legislative grant, the Escheator of the ' Sumterville' Academical Society’ issued his notification under the Act of 1787, and an inquest was made of a tract of land of which Josiah H. Smoot died seized and intestate. On return of the inquest, process was issued pronouncing said land to be escheated, which was afterwards sold by the escheator of the corporation and purchased by Francis M. Beckham. Kichard Williams and wife and others, claiming to be the statutory heirs of Josiah H. Smóot, have, by their petition, prayed that an issue may be ordered to make good their title to said tract of land. By the Act of 1787 it is enacted, that after office found and after the sale of the land, 'the indents arising from such-sale shall be paid into the public treasury whenever the same shall become due and received: Provided nevertheless, That if any person or persons shall appear within five years and make good title to such lands in the Court of Common Pleas on an issue tried, he, she, or they shall forthwith receive, adequate compensation.’ The petitioners rely upon this proviso in support of their application for an order directing an issue. My conclusion renders it unnecessary to inquire, whether a judge may grant such an order at Chambers, or whether a title acquired by descent or one acquired by purchase can affect the merits of the application.
    " The Act or proviso contemplates a case where, after a salé, the money had been paid into the public treasury, in which case, if the party shall make good his title, he shall receive compensation from the proceeds of the sale. If the intention be to satisfy the General Assembly, by judicial proof, of the title of the applicant, before compensation is awarded, the case made by the petitioners is not the one contemplated by the proviso. The money has never been paid into the public treasury, but is either in the hands of the Sumterville Academical Society, the grantee of the Legislature, or in the hands of their escheator and subject to their control and disposition. If the petitioners are the legal heirs of Josiah H. Smoot, and the Legislature has granted his lands as escheated property which legally descended on them, at his death, or if the escheator, under the grant, has made an inquest of and sold it, the legal effects of such grant and sale may, possibly, be the subject of inquiry when they shall make claim, by suit, against such person as may be found in possession; but the Act does not direct an issue to enable the party to regain possession who may have a good title, but to compensate him. - •
    
      “ The Act further provides, that the party claiming shall be heard on a traverse and that the lands shall be committed to him on conditions mentioned in the Act, and I should order such a traverse; but it appears to me that after an inquest and sale, such order is not authorized by the language of the Act, which seems to contemplate an issue before office found —certainly before a sale and before third persons, and not the State, are interested in the issue. I decline, therefore, to order the issue prayed for.”
    The petitioners appealed from the decision of his Honor refusing to grant them an issue at law, in order to make good title to the land of the intestate escheated, with a view to compensation from the Legislature, on the grounds :
    1. Because the proviso in the fifth section of Act, 5 Stat. 47, " that if any person or persons shall appear within five years and make good title to such lands in the Court of Common Pleas, on issue tried, he, she, or they shall forthwith receive adequate compensation,” attaches when the lands are "es-cheated and invested in the State,” because the adequate compensation need- not arise from the proceeds of sale, nor be adjusted when these proceeds are paid, which may never happen; section 4 and 5, except- the proviso above recited, being directory to the escheator.
    2. Because the land did vest in the State, the Sumterville Academical Society being substituted only when, and after, the right of the State is established, through the forms provided by law.
    3. Because, after the right of the State is established, whether it sells it, grants it, or throws it away, if good title is established to it within five years, the State must compensate.
    4. Because the claimants are not put in a worse condition by the grant to the Sumterville Academical Society, and being entitled to compensation by the State, and an issue being a prerequisite to compensation, the issue should have been ordered by his Honor.
    
      Sumter, Dinlcins, for appellants.
    If the land is seized for want or supposed want of heirs, nothing vests except through the course of escheat as prescribed: Act of 1787, 5 Stat. 57, sec. 2d, 3d.
    
      Bodden vs. Seignee, 2 Brev. 321; no condition was annexed to the grant of the State to the society and never can attach.
    Law Library 89, Smith on Personal and Eeal Property, &c., 502 ; original covenantor when not discharged, same, p. 505.
    The society only liable on express contract; Story Eq. § 1248.
    The English statutes allowing traverse, as of Edward III. and Henry YL, are not adopted here, but provided for in the Act of 1787, as well during the inquisition as after office found. So in England we may traverse any inquisition by writ out of Chancery monstrans de droit, and an issue will be granted by the King’s Bench or Chancery.
    Act of 1731, 3 Stat. 280, provides a jury for special occasions and special inquests.
    The important question whether there was a disseizin or abatement by the operation of the Act, where there were heirs appearing within five years, may affect the purchaser, if it was thought advisable to pursue him, but cannot diminish the duty of the Legislature to compensate. The State has done the injury in any case, and ought to see that the purchaser does not pay over to an insolvent society its own creature.
   The opinion of the Court was delivered by

O’Neall, C. J.

The petition presents a case entitled to relief within the terms and provisions of the Act of 1787. The first objection noticed by the Judge, but not decided, is that the application could not be made at Chambers. I think there is nothing in that. The Judge, unless restricted by the Act, has the same powers as to mere administrative orders, at Chambers, which he has sedente curia.

The objection on which-his mind rested was that the money was not paid into tbe treasury. Tbe Legislature granted the escheats in Sumter District to the Sumterville “Academical Society.” This grant has appointed another to receive the proceeds, and that makes their receipt the same as a receipt into the public treasury. I do not therefore hesitate about granting the relief prayed in that respect.

By the proviso to the 5th section, 5 Stat. 47, the heirs (the petitioners) are entitled to five years after the sale, March, 1863, to show their title to the land. So by the 9th section, 5 Stat. 48, the petitioners, laboring under disabilities of infancy or coverture, are saved from the bar of the Act.

I am therefore clear that the petitioners are entitled to traverse the inquisition, which will be heard on the petition setting forth their right in the Court of Common Pleas for Sumter District, the petitioners finding security to prosecute rheir suit with effect and without delay. Let the petitioners give notice to the Solicitor of the Middle Circuit, the escheator, and the Academical Society, so that they may plead to the traverse if they choose.

The motion, according to the above directions, is granted.

Wardlaw, J., concurred.

Motion granted.  