Dickey v. Hoodenpile, 2 N.C. 410, 1 Hayw. 410 (1796)

Sept. 1796 · North Carolina Superior Court

2 N.C. 410, 1 Hayw. 410

Dickey v. Hoodenpile.

in an Ejectment, the first grant is the only thing to be enquired into, without any regard to the entry or survey.

Ejectment for two hundred and forty acres of land.— Dickey claimed under a grant from the State, dated the 10th of September, 1778, and proved thé land surveyed the place mentioned in his declaration. Hoodenpile claimed under McDowell, who obtained a grant from the State, dated 7tli August \7%7, which included the same land. McDowell had first entered this land — Dickey some time after, entered his two hundred and fifty acres on the middle fork of Cain river, but surveyed this tract of two hundred and forty acres on another prong of that rivet* upon McDowell’s entry — and the question was, whether this grant was valid It was argued for Hoodenpile, that the act of 1777, c 1, s. 9. declares void all grants otherwise obtained than that act directs ; and that the entry-taker had not by his warrant, nor indeed could he authorize th< surveyor to survey those lands for Dickey, which lie had not entered, to the prejudice of McDowell, who had entered them ; and consequently, that whatever the surveyor had done in surveying these lands, and returning plats of them to the Secretary’s office, had been done without authority, and otherwise than the act directs, and so was void, as were also all the proceedings subsequent to that period, the grant inclusive.

Judge Wixuiams

When a grant once issues for a tract of vacant land, it becomes the only evidence of title, and we cannot afterwards look further back than the grant. We must admit all antecedent proceedings to have been reguiar, otherwise we should introduce the practice of invalidating grants by parol testimony. The grant may be suspended and a trial had, where a claimant proceeds to survey ami return plats of other land than those he has entered, to the prejudice of another who has entered them : ami McDowell should have proceeded this way — ns lie has not done it he has slipped his time, and cannot, now object to the grant. It seems unjust that he should lose his land by the mistake of the surveyor, who has surveyed the lands entered by him, for the lands entered at another place by Dickey — but Dickey by that mistake has lost the land he entered : for it is said, that another person has since obtained a grant for it. It. is possible, that Mr, McDowell might obtain redress in a Court, of Equity, but I am clearly of opinion, he has no remedy in this court. Our Courts of Law have uniformly decided, that whoever obtains the first grant shall he the legal proprietor, without any regard had to the first entry or survey; and indeed without regarding whether there was any entry or not — the court will not go back to these circumstances.

Judge Haywood was silent, having been concerned in the cause whilst at the bar. The Plaintiff had a verdict and judgment.

Note. — Vide Reynolds v. Flinn, and the note thereto ante 106.