Terrell v. Logan, 10 N.C. 319, 3 Hawks 319 (1824)

Dec. 1824 · Supreme Court of North Carolina

10 N.C. 319, 3 Hawks 319

Terrell and Alexander v. Logan.

I From Rutherford.

The act of 1793, which gives jurisdiction in regard to vacating grants, does no’ authorize the Courts to interfere with mesne conveyances from one man to another; therefore a petition to vacate a grant, brought against a person in possession by purchase from the original grantee, when such grantee was not before the Court, was dismissed with costs;

Petition to vacate a grant. The petitioners set forth, that on the .5th of June, 1817, they entered a tract of land in Rutherford county, and on the 18th of November, 1818, obtained a grant for the same; but that one David Miller, late entry taker of Rutherford, made an entry in his own office for the land, or a part thereof, without having made any entry before a justice of the peace for the county, and without any justice of the peace making a return to the next Court of Pleas and. Quarter Sessions of such entry; and that there was no . entry either on the records of the County Court, or on the entry taker’s books, that Miller’s entry ever was inserted on the records of the Court by direction of the Court; that Miller had procured a grant to issue'upon his entry by means of false suggestions; that Logan, the defendant, was in possession claiming under Millers grant; and prayed that Milter’s grant might be vacated, and they let into the possession.

Logan answered, that he was a purchaser for a valuable consideration, without notice of any defect in Miller’s title; and that he, and those under whom he claimed, had been in quiet possession, under colour of title, within known and visible boundaries, for more than twenty-one years before the filing of the petition, and therefore he pleaded the act of 1791 in bar.

A jury, before Paxton, judge, found that Logan was a iair and bona fide purchaser, for valuable consideration, without notice of any fraud or defect in Miller’s title,.. and that defendant, and those under whom he claimed, had been in quiet possession lor more than twenty-one years, under colour of title and. within known and visible boundaries, before the filing of the petition, and before the entry and grant of the petitioners.

The petition was then dismissed with costs, and the petitioners appealed.

Seawell, for the .petitioners.

This is not a case in which application is made to the discretionary power of the Court, where the Court is to afford or refuse relief, according to the complexion of the plaintiff’s case, or the conscience which may be on the side of the defendant. It is a proceeding according to positive law, and seeks to obtain a right, from the constituted authority, which is conferred upon the petitioners by the positive enactments of the land. The act of 1777, sec. 18. declares in express terms, that grants .similar to Miller’s are illegal and void; and the act of 1798, sec. 10. declares that all grants made against law, shall be vacated by the Superior Court upon petition filed. The petitioners have made out Miller’s grant void under the act of 1777, and what prevents them from entering and obtaining a grant under the act? ■

The defendant relies on his possession of twenty-one years under colour of title, as a bar to the right of the state, under the act of 1791. The grant to Miller was in 1789, and whatever effect the act of 1791 may have had, the act of 1798 in express terms declares, that any person who shall consider himself aggrieved by any grant issued since the 4th of July, 1776, to any other person against law, or upon false suggestions, surprise or fraud, may file his petition to have the same vacated, and the act is imperative that the Court shall Vacate it, if the petitioner makes out his case.

The plea that defendant is a purchaser for a valuable consideration without notice, is also relied on. This plea, is not known in a Court ef law; it is built upon the hardship of the case, and is allowed in equity only where it furnishes a ground of defence, as the petitioners’ case here does of relief, and the maxim is, that in such case the law shall decide. If, therefore, the defendant was a bona Jide purchaser and without notice, the law must decide between him and the petitioners.

Hall, Judge.

Miller is not a party to the proceedings now before the Court, and no decree, for that reason, can be made against him. We cannot, therefore, undertake to vacate the grant complained of, which the . state made to him.

The act of 1793, which gives this court jurisdiction in regard to grants, does not give it jurisdiction with regard to mesne conveyances from one man to another. Therefore we have no power to disturb the conveyances made to Logan, and to those under whom he claims. Whatever title he may have by possession, under colour of those mesne conveyances, we must leave him in thq undisturbed possession of. I agree in opinion with the judge in the Superior Court, that the petition must bf dismissed with costs.

•The other Judges concurred,