VIII. VACATED.

1748. Suits to vacate grants, when and where brought. When any person claiming title to lands under a grant or patent from the king of Great Britain, any of the lords proprietors of North Carolina, or from the state of North Carolina, shall consider himself aggrieved by any grant or patent issued or made since the fourth day of July, one thousand seven hundred and seventy-six, to any other person, against law or obtained by false suggestions, surprise or fraud, the person aggrieved may bring a civil action in the superior court for the county in which such land may be, together with an authenticated copy of said grant or patent, briefly stating the grounds whereon such patent should be repealed and vacated, whereupon the grantee, patentee, or the person, owner or claimant under such grant or patent shall be required to show cause why the same shall not be repealed and vacated.

Code, s. 2786; R. C., c. 42, s. 29.

1749. Judgment vacating grant, recorded in secretary of state's office. If, upon verdict or demurrer, the court believe that the patent or grant was made against law or obtained by fraud, surprise, or upon untrue suggestions, they may vacate the same; and a copy of such judgment, after being recorded at large, shall be filed by the petitioner in the secretary's office, where it shall be recorded in a book kept for that purpose; and the secretary shall note in the margin of the original record of the grant the entry of the judgment, with a reference to the record in his office.

Code, s. 2787; R. C., c. 42, s. 39.

1750. When state will bring suit to vacate grants. An action may be brought by the attorney general, in the name of the state, for the purpose of vacating or annulling letters patent granted by the state, in the following cases:

1. When he shall have reason to believe that such letters patent were obtained by means of some fraudulent suggestion or concealment of a material fact, made by the person to whom the same were issued or made, or with his consent or knowledge; or

2. When he shall have reason to believe that such letters patent were issued through mistake, or in ignorance of a material fact; or 3. When he shall have reason to believe that the patentee, or those claiming under him, have done or omitted an act, in violation of the terms and conditions on which the letters patent were granted, or have by any other means forfeited the interest acquired under the same.

Code, s. 2788; C. C. P., s. 367.

1751. Phosphate rock under navigable waters, when entered. Any resident of this state who shall make affidavit before the clerk of the superior court of any county through which such navigable stream may flow, that he has discovered in any navigable stream or waters of this state any phosphate rock or phosphate deposit therein shall have authority and power to enter under the entry laws of this state so much of the bed of any such navigable stream or waters as shall not exceed in any one entry two miles in length up the middle of any such stream or water for the purpose of digging, mining or removing any such deposit or rock.

1891, c. 476.

1752. How grant obtained; term; royalty. Upon such affidavit being filed with the entry-taker, and upon a survey and plot being made of such entry by the county surveyor, as is now required by law in cases of entry of land, being made and certified to the secretary of state with a copy of such affidavit and entry so made, the said secretary of state shall issue a patent or grant to the said person, his heirs or assigns, for a term of twenty-five years for such land, with the proviso and condition inserted therein that the grantee therein shall pay to the treasurer of the state at the end of every three months a royalty of one dollar per ton for each and every ton of the crude phosphate rock or deposit mined, dug or removed. 1891, c. 476, s. 2.

1753. Exclusive right to mine; bond for royalty. Such grantee, his heirs or assigns, shall have the exclusive right to mine, dig or remove any such phosphate rock or deposit for the term of twentyfive years from the date of said patent upon paying the said royalty of one dollar specified in said patent: Provided, however, that as a condition precedent to the granting of any such patent each such company or person making any such entry shall enter into bond with sufficient security in the penal sum of five thousand dollars, conditioned for the making of faithful and true returns to the treasurer of the state of the number of tons of phosphate rock and phosphate deposit so dug, mined or removed, at the end of every month, and the punctual payment to the said treasurer of the royalty of one dollar per ton upon each and every ton of the crude rock, without being steamed or dried, at the end of every three months, and the said bond and sureties shall be subject to the approval now required by law for the bonds of state officers.

1891, c. 476, s. 3.

1754. Navigation not obstructed by grantee. No grant issued under the provisions of this subchapter shall confer upon the person receiving the same the right to obstruct the navigation of any such stream or water, nor confer upon any such person or his assigns any other right than that granted to take, mine or dig phosphate rock or deposit therefrom.

1891, c. 476, s. 4.

1755. Fees for issuing grant for phosphate beds. No fee or cost shall be charged or collected by the secretary of state of any person or corporation receiving any patent or grant under this subchapter, except the fee allowed by law to the said secretary of state for issuing a patent under the entry laws of the state.

1891, c. 476, s. 5.

1756. Failure to operate for two years vacates grant. Any person, company or corporation who shall fail to dig, mine or remove phosphate rock or deposit from any such stream or water to which he or it may be entitled under any patent or grant issued under the provisions of this subchapter for the period of two years from the date of said patent, or after beginning digging, mining or removing the same, shall fail to continue to so dig, mine or remove the same for the period of two years, shall forfeit any and all rights therein. granted, and said territory shall immediately thereupon become subject to entry under the provisions of this subchapter without making the affidavit of the discovery of any such deposits or rocks.

1891, c. 476, s. 6.

1757. May be mined without grant, how. Any person or corporation resident of this state shall have the right to mine, dig or remove phosphate rock or deposits from any of the navigable streams or waters in this state to which no exclusive patent or grant may have been issued, upon such person or corporation first entering into bond in the penal sum of five thousand dollars, payable to the treasurer of the state, for the payment of the same royalty, in the same manner and under the same regulations as are prescribed in section one thousand seven hundred and fifty-three; but nothing in this section shall be construed to give to any such person or corporation any exclusive franchise or privilege to dig, mine or remove any such phosphate rock or deposit from any stream or water of this state.

1891, c. 476, s. 7.

1758. How appointed; tenure. There may be in every county a public guardian to be appointed by the clerk of the superior court for a term of eight years.

Code, s. 1556; 1874-5, c. 221.

1759. Oath of office. The public guardian shall take and subscribe an oath (or affirmation) faithfully and honestly to discharge the duties imposed upon him; the oath so taken and subscribed shall be filed in the office of the clerk of the superior court.

Code, s. 1560; 1874-5, c. 221, s. 5.

1760. When letters issued to. The public guardian shall apply for and obtain letters of guardianship in the following cases:

1. When a period of six months has elapsed from the discovery of any property belonging to any minor, idiot, lunatic, insane person or inebriate, without guardian.

2. When any person entitled to letters of guardianship shall request in writing the clerk of the superior court to issue letters to the public guardian: Provided, it shall be lawful and the duty of the clerk of the superior court to revoke said letters of guardianship at any time after issuing the same upon application in writing by any person entitled to qualify as guardian, setting forth a sufficient cause for such revocation.

Code, s. 1561; 1874-5, c. 221, ss. 6, 7.

1761. Powers, duties, liabilities, compensation. The powers and duties of said public guardian shall be the same as other guardians, and he shall be subject to the same liabilities as other guardians

under the existing laws; and shall receive the same compensation as other guardians.

Code, s. 1561; 1874-5, c. 221, ss. 6, 7.

II. APPOINTED BY PARENT.

1762. Father, and if dead, mother may appoint. Any father, though he be a minor, may, by deed executed in his lifetime or by his last will and testament in writing, dispose of the custody and tuition of any of his infant children, being unmarried and whether born at his death or in ventre sa mere, for such time as the children may remain under twenty-one years of age, or for any less time. Or in case such father shall be dead and shall not have exercised his said right of appointment, then the mother, whether of full age or a minor, may do so.

Code, s. 1562; R. C., c. 54; 1762, c. 69; 1868-9, c. 201; 1881, c. 64.

1763. Effect of such appointment. Every such appointment shall be good and effectual against any person claiming the custody and tuition of such child or children.

Code, s. 1563; R. C., c. 54; 1762, c. 69, s. 2; 1868-9, c. 201, s. 2.

1764. Powers and liabilities of other guardians. Every guardian by deed or will shall have the same powers and rights and be subject to the same liabilities and regulations as other guardians. Code, s. 1564; R. C., c. 54; 1762, c. 69; 1868-9, c. 201, s. 3.

1765. Mother natural guardian, father dead. In case of the death of the father of an infant, the mother of such child surviving such father shall immediately become the natural guardian of such child to the same extent and in the same manner, plight and condition as the father would be if living; and the mother in such case shall have all the powers, rights and privileges, and be subject to all the duties and obligations of a natural guardian. But this shall not be construed as abridging the powers of the courts over minors and their estates and to the appointment of guardians.

Code, s. 1565; 1883, c. 364.

III.

JURISDICTION OF CLERK OF SUPERIOR COURT OVER.

1766. May appoint, for infants, idiots, lunatics and inebriates. The clerks of the superior court within their respective counties shall have full power, from time to time, to take cognizance of all matters concerning orphans and their estates and to appoint guardians in