ERROR to the circuit court of East Tennessee.
This was an action of ejectment, brought by the plaintiff in error, to recover the possession of 5000 acres of land, lying in Maury county, in the state of Tennessee, and granted to the lessor of the plaintiff by the state of North Carolina, on the 14th of July, 1812. The grant was founded on an entry made on the 27th of October, 1783, in the land office of North Carolina, commonly called John Armstrong's office; on a warrant of survey issued from the same office on the 10th of July, 1784; and on a survey made on the 26th of February, 1812, under an act of the legislature of North Carolina, passed in 1811. The lands lay in that part of Tennessee in which the disposition of the vacant and unappropriated lands is reserved to the United States by the act of congress of the 18th of April, 1806, ch. 31. This title was offered in evidence by the plaintiff at the trial, and was objected to by the defendant, who claimed under a grant from Tennessee. The evidence was rejected by the court below; on which the plaintiff excepted, and the cause was brought by writ of error to this court.
Mr. Harper, for the plaintiff, argued, that the state of North Carolina, under the conditions of her act of 1789, ch. 3. for ceding the western lands to the United states, had a right to perfect grants on all such entries as this, at any time after the cession, and not merely within the time which was limited by the then existing laws of North Carolina; the conditions of the cession being recited and confirmed in the act of congress of the 2d of April, 1790, ch. 33. accepting that cession. That the act of North Carolina of 1803, ch. 3. for ceding this right to the state of Tennessee, with the assent of congress, was wholly inoperative and void, for want of that assent; congress not having assented simply and unconditionally, as was intended by the legislature of North Carolina, but having coupled its assent with conditions destructive of the rights of that state and her citizens, under the act of cession. That, consequently, the act of congress of the 18th of April, 1806, ch. 31. being founded on this act of North Carolina, and on the act of Tennessee of 1804, ch. 14. which rests on the same basis, is without authority, and void. That even if the act of North Carolina of 1803, ch. 3. were operative, it merely gives the state of Tennessee concurrent power with North Carolina for perfecting these titles and does not devest the power of the latter state. And that if the power granted to Tennessee by this act was absolute and exclusive, while it existed, it reverted to North Carolina, when Tennessee, by assenting to the conditions imposed by congress in the act of April 18th, 1806, ch. 31. disabled herself from exercising this power or procuration, according to the terms and intentions of the grant from North Carolina.a
Mr. Campbell, contra, contended, that the state of North Carolina, by her act of 1803, ch. 3. transferred to Tennessee all the power to issue grants reserved by her in the act of cession of 1789, on the conditions that the state of Tennessee should agree to said act as a compact between the two states, and that the assent of congress should be obtained thereto. Tennessee did agree to the act, by her own act of 1804, ch. 14. and the assent of congress was given thereto by the act of the 18th of April, 1806, ch. 31. Consequently, the state of North Carolina had no power to issue the grant in question. That the provisions in the act of congress of the 18th of April, 1806, ch. 31. relate only to the final deposition of the vacant lands in Tennessee, remaining after all the claims from North Carolina are satisfied, according to the conditions of the cession act, and do not impair the right acquired under titles derived from the latter state. That the transfer of power to perfect grants from North Carolina to Tennessee vested it in the latter, unconditionally and exclusively; and the power having once vested, cannot revert, or be devested. The authorities cited, as to reversion of powers, upon a breach of the conditions on which they were granted, are wholly inapplicable to transactions between independent communities and states. But even supposing the same rules in this respect were to be applied to their acts, as to those of private individuals, he contended, that Tennessee had performed the condition as near to the intent as might be, and that whatever is an equitable, ought to be considered a legal execution of a power.b That the public documents, necessary to enable Earl of Darlington v. Pultney, Cowp. 260. the power in question, were delivered to that state according to the compact of 1803; and that it was executed by her from 1806 to 1811, with the apparent acquiescense of North Carolina, which state ought not, therefore, now to be permitted to object that the assent of congress thereto had not been sufficiently given. That this assent was deemed necessary to comply with that provision in the constitution, art. 1. s. 10. which declares, that 'no state shall, without the consent of congress, enter into an agreement or compact with another state,' and because the United States had an interest in the subject matter of the compact. This assent was not intended for the benefit, or to secure the interests, of North Carolina; and the approbation of congress having been sufficiently manifested, that state has no right to object to the mode in which the assent was given. That by her act of cession, the state of North Carolina reserved the right to issue grants, only in conformity to her then existing laws, but not to pass new statutes upon the subject, like that of 1811. And that the state of Tennessee, by an act passed in 1812, declared this grant, and all others issued under similar circumstances, void; and provided, that they should not be read as evidence of title in any court of the state; thus asserting her exclusive right under the compact of 1803 to issue grants for lands within the state.
Mr. Justice JOHNSON delivered the opinion of the court.