¶1delivered the opinion of the court.
¶2The court charged the jury that the land being vacant and unappropriated, belonged to the general government, and the plaintiff not being in possession had nothing in the premises to sell, and that the contract between him and defendant was a nudum pactum, and could not be enforced by law.
¶3This is the law beyond doubt. But in a case where a party has, by possession and occupancy, acquired a right of preference to enter a certain spot of land, and obtain a grant therefor, by virtue of the laws of Tennessee, he in such case has authority to transfer his right of entry, in exclusion of other citizens, and the assignee is clothed with the same right to enter. This would be a good consideration for a promise, because in conformity with the laws of Tennessee passed for the satisfaction of North Carolina land warrants. But a bargain concerning unoccupied public lands, is wholly void; just as much so, as if the plaintiff had sold the defendant part of his neighbor’s land already granted.
¶4Judgment affirmed.