It is not necessary, for the purpose of disposing of this case, to decide whether, in reference to grants of this (301) description, all of the requirements of the statute in regard to the manner of making the entry — its return to the County Court — the order for a survey, and the appointment and report of a jury, should be strictly complied with as a condition precedent on which the validity of the grant is made to depend, according to the law as settled in reference to the sale of land for taxes, or whether such matters are only directory, so that a grant issued by the proper authorities for land which is the subject of grant, is to be held valid, and can not be declared void and of no effect, notwithstanding the requirements of the statutes have not been observed according to the law as settle in respect to grants issued under the acts in reference to ordinary entries and grants of vacant land.
2. Nor is it necessary to decide whether a grant which includes within its boundaries a large scope of country, say ten miles by seven miles square 45,000 acres, but which, on its face, purports to be a grant of 3,000 acres of vacant land, the excess included in the boundaries being covered by older patents, is in law void, for the want of power in the Governor to issue such grant. We will take occasion to remark, however, without reference to the question of power, that its exercise leaves open a wide door for the admission of fraud, and certainly calls for extreme vigilance on the part of the public authorities.
3. Nor is it necessary to decide whether the defendants were guilty ofactual fraud in obtaining a grant for some 5,000 acres more than they claimed to be entitled to. It may be, under the circumstances, that owing to the large scope of country covered by the survey, and the infinite number of tracts of land held by older grants, embraced wholly *Page 235 or in part by the lines of the survey, they did not know, positively, the fact of this large excess, and were intent only on including, at the least, enough vacant land to fill their complement of 3,000 acres, and it is certain the case does not fall under Attorney-General v. Carver,34 N.C. 230; for there everything on the face of the survey and plat was right, and there was no ground to admit of any doubt or question of its correctness, so far as the papers showed, and the (302) fraud was made palpable by the fact, afterwards disclosed, that the natural boundaries called for extended the lines two miles instead of 200 poles, on the settled rule that course and distance are controlled by a call for natural objects as the boundary. This fact, of itself, convicted both the surveyor and the grantee of a fraud, and there could be no mistake about it. But here, the survey and plat show that a large extent of country was included; the surveyor says 33,000 acres of older patented land is embraced, which, being deducted, leaves 8,000 acres the subject of the grant; so it does not appear, palpably, that the defendants were aware of the large excess of vacant land, and we should require strong proof to lead us to the conclusion that either the County Surveyor, Calloway, or his deputy, McMillan, knew of the fraud, if any such existed on the part of the defendants, and prostituted themselves in the discharge of the duties of their office, in order to aid the defendants in defrauding the State out of an indefinite number of acres of land not fit for cultivation, and which was subject to entry at five cents per acre; not exceeding, at any estimate, the amount of $300 as the sum, out of which, in this view of the case, the State has been defrauded by the corruption, not only of the defendants, but of the County Surveyor and his deputy — both sworn officers.
4. For we put our decision on the ground that the grant was issued against law; that is, without the authority of the law, and in a case that did not come within the operation of the statute of 1788, "to encourage the building of iron works." The statute recites, "Whereas, it appears to the General Assembly that several places in this State are advantageously situated for the building of iron works," "Be it enacted, that three thousand acres of vacant land, not fit for cultivation, most convenient tothe different seats, is hereby granted for every set of iron works, as a bounty from this State, to any person or persons who will build and carry on the same, to be under the following rules and regulations."
It is alleged in the information, and proved by evidence, that one Cox had, many years ago, built and carried on iron works (303) at this "identical seat," and had, by reason thereof, applied for and obtained a bounty of 3,000 acres of vacant land. The question is: *Page 236 Was this bounty land of 3,000 acres appendant to the seat of the ironworks, or was the intention to give a bounty of 3,000 acres of land to every person who would, upon that seat, from time to time, build and carry on iron works? Upon the former construction, when the iron works should be built and carried on at the particular seat, the bounty of three thousand acres of land most convenient to the seat was to be given, and although the bounty land was not annexed to the seat, so that the seat could not be conveyed without passing the bounty land, or the bounty land could not be conveyed, wholly or in parcels, without also conveying the seat of the iron works, still the bounty was exhausted, and could not be claimed in behalf of any other person who should purchase or otherwise acquire the ownership of the seat after the bounty land had been severed from it. Upon the latter construction, every person who, by purchase, descent or otherwise, might at any time, acquire title to the seat, would be entitled to a bounty of three thousand acres of land, so that all that was necessary to do, in order to acquire a title to another bounty of three thousand acres of land was for the man who had obtained the bounty to let the works go down and sell off the three thousand acres of land which had been received as a bounty, and then rebuild and carry on the works long enough to make five thousand pounds of iron, and thereupon entitle himself to another bounty of three thousand acres of vacant land, not fit for cultivation, "most convenient to the seat;" then let him sell to a stranger the seat for the iron works after he has ceased carrying on the works, and let the purchaser of the seat rebuild and make five thousand pounds of iron, and he gets another bounty of three thousand acres of land, most convenient to the seat, and soad infinitum, until all of the vacant land in the county is absorbed by these successive bounty grants!
This latter construction can not be adopted, and we hold, according to the true construction of the statute, the grant of the (304) bounty of three thousand acres of land to Cox, in respect and as appendant to this particular seat on which he had built and carried on iron work, exhausted the bounty intended to be given by the statute, and no one who afterwards became the owner of the seat had any right to claim another bounty of another three thousand acres of land. It follows that the grant in question was issued against law, and is, therefore, void.
PER CURIAM. Decree accordingly. *Page 237