Den on the demise of the heirs of Tate v. Greenlee, 9 N.C. 231, 2 Hawks 231 (1822)

Dec. 1822 · Supreme Court of North Carolina

9 N.C. 231, 2 Hawks 231

Den on the demise of the heirs of Tate v. Greenlee.

From Burke.

Where the subject matter of a grant is within the power of the pub-lick officer who makes it, the grant shall not be invalidated when it comes incidentally before the Court by any thing dehors the grant. Jlliter where its validity is put in issue ex directo, as on a sci. fa. to repeal it.

This was an action of ejectment, in which the evidence of title on the part of the lessors of the Plaintiff, was a grant issued to William Tate, on the 23d of November, 1802. The Defendant offered to prove that William Tate, the grantee, was the surveyor of the land, and that the plat and certificate attached to the grant were in the hand-writing of said grantee, with the exception of the signature of the county surveyor. The certificate was in these words, “ Certified by f¥m Tate, DVS. Robert Logan, C. S.” The evidence was rejected by the Court, and a verdict was returned for the Plaintiff A rule for a new trial was obtained, and afterwards discharged by the Court, and judgment rendered for Plaintiff. The Defendant appealed to this Court.

Henderson, Judge.

Where the subject matter of a grant is within the power of the publick officer who makes it, the grant shall not be invalidated w hen it comes only incidentally before the Court (as in a trial of ejectment) by any thing dehors the grant. But I cannot bring myself to believe, if the cause of its nullity is apparent upon its face, that the Court must shut its eyes against the defect, and declare the grant to be valid. But if in such case, parol or other evidence dehors the grant is offered, it should be rejected $ not because the grant if true is not sufficient to avoid it, but that the party comes unprepared to resist or to controvert it. But where the validity of a patent is put in issue ex directo, as on a scire facias to repeal it* there such fact may be proved by any competent evidence j nor is the doctrine first advanced above, at all impugned in those cases where patents for new inventions upon trials at law are declared void ; for the patent, or its Substance, is stated in the pleadings, and therefore its validity comes ex directo before the Court. For this reason, I think the parol evidence was properly rejected, and that the rule for a new trial should be refused.

By the Court. — Rule discharged.