Opinion
September 1804.
A bill taken for confessed is viewed as true in relation to matters of fact. [Acc. Douglass v. Evans, infra, 82; Stone, Adm'r v. Duncan, 1 Head, 103, citing Irby v. McKissack, 8 Y. 42, and Koen v. White's Heirs, Meigs, 358. And see Code, § 4371.]
A grant founded in an entry, made when there was a statute expressly forbidding it, is void. See Polk's Lessees v. Wendell, 5 Wheat. 305, where this case is cited.]
Thus a grant founded on an entry made in a county office, after the act of 1778 forbidding such entry, for lands lying west of Brown's Line, is void. [Acc. Cobb's Heirs v. Conway, 3 Hay. 21; Proffit v. Williams, 1 Y. 89; 1 Wheat. 115, 155.]
Per Curiam.
CAMPBELL and OVERTON (WHITE, J., absent).
Equity — Pro confesso. — The plaintiff states that on the 21st of October, 1783, an entry was made in John Armstrong's office, No. 91, for 200 acres, upon which a warrant issued on the 7th of June, 1784, which the plaintiff purchased, had the same assigned on the 1st of February, 1788, had it surveyed, and on the 18th of May, 1789, obtained a grant.
It is also stated, that this land lies south-west of the line from the mouth of Cloud's Creek to the Chimney-top Mountain commonly called Brown's Line.
The defendant on the 24th of November, 1778, entered the same land in one of the counties, and during the revolutionary war left this country and attached himself to the British; on the 23d of October, 1782, the defendant obtained a grant.
Some time in the year 1797, the defendant brought an ejectment against the tenant in possession, upon which the plaintiff was admitted as a co-defendant; a trial was had, and a verdict and judgment rendered for the plaintiff. The bill charges that the jury in rendering their verdict, proceeded upon a mistaken ground, which was that the defendant, Honeycut, had an improvement on the land, as early as the year 1777, which he averred was not the case. The jury also conceived that the survey of the defendant included the improvement which he claimed, which also was wrong. The plaintiff rested his case principally upon the illegality of the defendant's entry, there being no law to authorize the entry, but one expressly forbidding it. April, 1778, c. 3, § 5, Ird. 352.
The prayer was for a perpetual injunction, and that the defendant's grant should be annulled.
Agreeably to the former practice of this court, a bill taken pro confesso is viewed as true in relation to all matters of fact.
Otherwise in Virginia; see 4 Hen. Mun. 476.
If an improvement had been made by the defendant during the interval between the passing the Act of 1777, Ird. p. 292, and the Act of 1778, Ird. p. 351, the case might deserve some consideration, supposing the defendant not to have been attached to the British; but taking the bill as true, as to matters of fact, the case admits of no doubt. The 5th section of the Act of 1778, does expressly forbid any entries where the defendant claims, and declares them void as well as all grants obtained thereon.
This prohibition continued until John Armstrong's office was opened in the year 1783, Ird. 446.
The defendant's entry was unlawful; nor ought a grant to have issued on it.
In decreeing the grant of the defendant null and void, we shall say nothing more than the act has already declared. Let it be so decreed, and a perpetual injunction.