Williams v. Norris. 12 W. The act of North Carolina, which authorized entries to be made in John Armstrong's office, contains the following enactment: That every person claiming, before he shall be entitled to enter a claim for any of the said lands, shall pay into the hands of the entry taker, at the rate of ten pounds in specie, or in specie certificates at their nominal value, &c., for every hundred acres so entered. The 19th section directs every entry taker within the State to make out and deliver to the surveyor, on or before the first day of April and the first day of October annually, the warrants for the several entries, (which are not disputed,) made in his office, with an indorsement prescribed by law, showing the number and date of the entry. The circuit court for the county of Lincoln decided that Williams, the caveator, had the better right. This judgment was carried to the court of errors and appeals, by writ of error, where it was reversed, and the caveat dismissed. That judgment is now before this court; and in considering it we are confined to the inquiry, whether the record shows any miscon struction of an act of congress or of the constitution of the United States. In 1789, North Carolina ceded her western territory to the United States, reserving to herself the right of perfecting titles in all cases where entries had been made according to law. Under this reservation, several acts were passed, directing warrants of survey to be issued on entries made in John Armstrong's office, where the purchase-money had been or should be paid. In 1796, Tennessee was erected into a State. In 1803, North Carolina entered into a compact with the State of Ten[ *123] nessee, *in which the former ceded to the latter the power to issue grants and perfect titles to all claims of land lying in the said State, which power had been reserved to herself by North Carolina, in her acts ceding her then western territory to the United States. This compact was assented to by congress. In 1806, congress passed an act ceding to the State of Tennessee all the rights of congress to lands lying east and north of a line described in the act. The land in controversy is within the territory thus ceded by congress. If any stipulation in the compact between North Carolina and Tennessee could have affected the controversy between Williams and Norris, it must have been because the title of Norris came within the reservation made by the State of North Carolina, in her act of 12 Stats. at Large, 382. Williams v. Norris. 12 W. cession to congress. That reservation was the subject of the compact. As the controversy was not between two persons, claiming under North Carolina, but between a person claiming under North Carolina and one claiming under the State of Tennessee, and the decision was in favor of the title set up under North Carolina, we cannot perceive how that decision can be considered as a violation of the compact. North Carolina stipulates that titles should be issued by the State of Tennessee, for lands to which there were valid claims under her laws, and for which patents might have been issued by her, had the compact not been made. If the title of Norris was valid, according to the laws of North Carolina, then the decision in his favor is in pursuance of the compact; if it was not valid, according to those laws, then the case is not within the compact. In either view of it, the compact has not been violated. The act which gives the sanction of congress to this agreement, also cedes to Tennessee a large territory, comprehending the lands in controversy. This cession is made on several conditions, one of which respects all existing claims to lands under the State of North Carolina. Its operation is understood to be, so far as it can affect the case now before the court, precisely the same with that of the compact between the two States. The same observations 'apply to it as were applied to that instrument. The title, [*124] for the benefit of which it was intended, if it has any influence in the case, has prevailed. Consequently, neither the compact between the States, nor the act of congress which assents to that contract, and which confers on the State of Tennessee the power to perfect titles in the district of country which comprehends the lands in controversy, can have been violated. A point of rather more difficulty remains to be considered. contended that the validity of a statute of the State of Tennessee has been drawn into question in this case, on the ground of its being repugnant to the constitution, and the decision has been in favor of its validity. The act supposed to be unconstitutional is, "an act for the relief of Ezekiel Norris." It is not stated in the record that the constitutionality of this act was drawn in question; and the 25th section of the Judiciary Act declares that "no error shall be assigned or regarded but such as appears on the face of the record, and immediately respects the before mentioned questions of validity, or construction of the said constitution," &c. The case of Miller v. Nicholls, 4 W. 311, has been relied on to prove that it is not necessary to the jurisdiction of the court that the record should, in terms, state a miscon Williams v. Norris. 12 W. struction of the act of congress, or that it was drawn in question. It is sufficient to give the court jurisdiction, that the record should show that an act of congress was applicable to the case. The case of Miller v. Nicholls was a claim filed by Mr. Dallas, the attorney of the United States, for a sum of money brought into a State court of Pennsylvania, to be disposed of by the court. The inoney belonged to a debtor of the United States, who was also indebted to the State of Pennsylvania. The court decreed the money to the State, in pursuance, it is presumed, of an act of the legislature, giving the State a preference. The case was brought, by writ of error, into this court, upon the allegation that the judgment was in violation of the act of congress, which gives priority to the United States in all cases of insolvency.' This court [125] dismissed the writ of error, because, the fact of insolvency not having been shown, it did not appear from the record that the act of congress, or the constitutionality of the state law, was drawn into question. The court added that the record need not state, in terms, a misconstruction of the act of congress, or that it was drawn in question. The act of congress applies to every insolvent debtor of the United States, and gives them priority as to all the property of the debtor which he possessed when the insolvency took place; but it applies only to cases of insolvency. Had the record shown that this was a case of insolvency, so that the act of congress applied to it, that act must have been misconstrued, or its obligation denied, when the court decreed the money to the State of Pennsylvania; and the court was of opinion that the act could not have been evaded by the omission to refer to it in the judgment, or to spread it on the record. To apply the principle of that case to this, it will be necessary to show that the title of Norris depended on the act passed in his favor by the legislature of Tennessee, and that the act was repugnant to the constitution. That act is in these words: "Be it enacted," &c., "that the commissioner of West Tennessee be, and he is hereby authorized to issue to Ezekiel Norris, certificates or warrants to the amount of 2,280 acres, being the amount of two entries, No. 2,046 for 1,000 acres, and No. 2,047 for 1,280 acres, on which no warrants or grants were issued; provided, that the said Ezekiel Norris shall produce sufficient evidence to the said commissioner that the consideration for said entries was paid, and that no warrant or grant ever issued on said entries." 11 Stats. at Large, 515. Williams v. Norris. 12 W. When this act passed, a patent had been granted by the State of Tennessee, to the plaintiff in error, comprehending a part of the land covered by the entry of Norris. If its effect was to annul that patent, and to give a new title to Norris, the act would come within the decision of this court in the case of Fletcher v. Peck, 6 C. 87, as a law impairing the obligation of contracts. In determining whether such was its effect, it is necessary to inquire whether Norris's entry was absolutely void, or gave an incipient title, capable of being carried into grant. If the purchase-money was [126 ] paid, the entry was valid. If not paid, the entry might be void, or only voidable. The words of the act under which it was made have been cited, and may admit of either construction. It is a question for the legislature and courts of the State, and its decision the one way or the other would not be repugnant to the constitution of the United States. It is apparent that the legislature of North Carolina has not considered these entries, where the purchase-money was not paid at the time, as being absolutely void, but has supposed them to be capable of being perfected and carried into grant, as the legislature might direct. In 1794, the comptroller was directed to issue warrants in all cases in which the purchase-money had been paid. In 1796, it was enacted that no grants should issue on warrants on entries made in John Armstrong's office, unless it should appear, by Armstrong's books, or other sufficient testimony, that the purchase-money had been paid. The next succeeding section of the same act authorizes any person entitled to such entry to pay into the treasury the amount or balance of the purchase-money, upon which a warrant may be issued. In 1798, the legislature appointed commissioners to investigate the frauds suggested to have been committed in the secretary's office, and directed that no grant should issue on warrants obtained on entries which the commissioners might deem fraudulent. The act of 1799, c. 7, s. 16, directs warrants to issue on all entries where the requisites of the law have been or shall be complied with. The legislation of North Carolina, to the year 1803, proceeds upon the idea that the entries made in John Armstrong's office, for which the purchase-money had not been paid, were not absolutely void, but might be made good by paying the purchase-money, or such part of it as remained due. The right seems to have been considered as preserved and suspended until the purchase-money should be paid. In this state of things, the power of perfecting titles, which had been retained by North Carolina in her cession act. was Williams v. Norris. 12 W. transferred to Tennessee, on condition that titles should be [*127] *perfected, or entries made, under the laws of that State, according to the requisites of those laws. In 1806, c. 1, s. 45, the legislature of Tennessee appointed commissioners to decide on the validity of entries, with directions to admit no warrants on entries made in John Armstrong's office, if it may appear to the said commissioners that the purchase-money has not been paid. By the act of 1807, c. 20, s. 25 and 29, it is enacted, that where it shall appear to either of the commissioners, that entries have been made in John Armstrong's office, on which the purchase-money has been paid, in whole or in part, warrants may issue for so much land as has been paid for. But it is provided that the person exhibiting such claim, shall produce a certificate from the comptroller of North Carolina, showing what sum was paid on the said entry. This act was continued in force till the 1st of January, 1815. In October, 1815, an act passed, directing that there should be one commissioner in East and. one in West Tennessee, each of whom should exercise the powers which had been vested in commissioners by the act of 1806. We do not understand that the propriety or obligation of these acts has ever been questioned by the courts of either North Carolina or Tennessee. We do not understand that the courts of either State have ever questioned the legislative construction of the act, opening the office in which this entry was made. That construction is, that entries received by John Armstrong, though not accompanied by the purchase-money, were not absolutely void, but would become valid should the purchase-money be afterwards paid; and that such proof of payment might be received as the legislature should prescribe. It cannot be doubted that numerous titles are held under this construction of the law. Its correctness or incorrectness does not seem to involve any constitutional question, or any question which can give this court jurisdiction in a cause which has been determined in a state court. Had the claim of Ezekiel Norris been decided by the commissioners acting under the general law, it would probably never have been contested. What difference is there, so far as respects its [* 128 ] constitutionality, between the act passed in his particular case, and the act containing a general reference of all cases of the same description to the commissioner? The difference consists solely in this: the general act admits no other proof of payment than a certificate from the comptroller of North Carolina; the particular act authorizes the commissioner to establish the claim on suffi |