Opinion · Supreme Court of North Carolina

Terrell v. Manney.

6 N.C. 375

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1818-07-05
Topic: bankruptcy

Sbaweii, Judge, delivered the opinion of the Court: We have carefully examined the act of 1798,establish-ing a Court of Patents, in the hope we might be able to satisfy ourselves, that we are at liberty to determine this case upon principles of equity but the result is, that we find it impossible to do so, without a departure from the obvious meaning of the Legislature. The present proceedings are under that act, and besides the generality of the expressions used, the scire facias is directed to be awarded against the grantee, or patentee, the owner, or person claiming under such grant; and the act in substance declares, that if any grant shall appear upon verdict, or demurrer, to have been made against law, the Court shall vacate it: for us then to hold that the act did not extend to the case of an innocent purchaser, would be like adding a saving to the act of limitations. The Legislature, in its enumeration of cases, has mentioned precisely that in which the Defendant is placed; viz: a person claiming under the grant; and there is nothing from which it can be collected that he was to be more favoured than a purchaser with notice. This act, in its operation, must be construed like the act declaring gaming bonds void, by which, as the Legislature ias made no savings, all gaming bonds into whatever bands they may come, are absolutely void. Then as to the other part of the case, whether this jrant was made against law, we think there cam be no loubt.

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TERRELLv. MANNEY,6 N.C. 375(1818)

TERRELL v. MANNEY.

Supreme Court of North Carolina

July Term, 1818.

From Rutherford.

1. In proceedings bysci. fa. under the act of 1798, to vacate a grant, aninnocent purchaserfrom the original grantee (the grant being void) is not protected; the act subjects to the operation of its provisions any "person claiming under the grant," and the Court can make no saving for the benefit of innocent purchasers.

2. Entries made by entry-takers, otherwise than the act directs, arevoid.

3. There is no limitation prescribed by the act. Section 9 gives the court jurisdiction and cognizance ofallgrants made since 4 July, 1776, by which it would seem that the Legislature intended to exclude the operation of time.

PETITION to vacate a grant. Petitioner set forth that he made an entry in the entry-taker's office of Rutherford, and obtained a grant from the State on said entry, for a tract of land in Rutherford County; that his entry was made 26 March, 1801, and his grant bore date 12 August, 1805, and was duly registered; that David Miller, who was now dead, being entry-taker, had before made an entry in his own office, in his own name, for the same tract of land or a part thereof, (376) without having done so before a justice of the peace for the county, and without any return having been made by any justice of the peace, of such entry, to the next County Court, as the law required; that in fact no entry ever was made on the records of Rutherford County Court, or on the books of said Miller as entry-taker, showing that the entry of Miller was there inserted by order of the court; that by false suggestions Miller had obtained a grant from the State for the land; that one Peter Manney was now in possession of the land or part thereof, under Miller's entry and grant, with full knowledge of all the facts connected with Miller's entry and grant; and petitioner prayed for asci. fa. to Manney to show cause why Millet's grant should not be vacated.

Manney pleaded that he had no knowledge of any irregularity in Miller's obtaining the grant; that he was abona fidepurchaser for valuable consideration, without notice; that he and those under whom he claimed had been in possession more than twenty-one years under colorable title; that he had been in possession seven years, and that during that time petitioner had made no entry; that he was in possession of 50 acres only of the land now claimed by virtue of the grant to Miller; and,Page 276lastly, that petitioner hath not title to thewhole tractcovered by Miller's grant. Issue was taken on all the pleas but the last; to that there was a demurrer and joinder.

Upon the issues submitted to them, a jury found that David Miller made his entry contrary to law, as charged in the petition, and under such entry obtained his grant; that Manney at the time of receiving a deed of conveyance for the land had no notice, and was ignorant of anything unlawful or irregular in Miller's entry or grant; that he purchased of Miller for a full and valuable consideration, which he paid; that Manney and those under whom he claimed had not been in possession (377) twenty-one years, but that Manney had been in the uninterrupted adverse possession of the land for seven years and more, before the filing of the petition; that the title of the petitioner did not extend toallthe land covered by Miller's grant, but to part thereof, including all of Miller's grant which Manney claimed.

Upon this finding the court ordered the case to be transmitted to this Court for its decision.

SEAWELL, J.

We have carefully examined the act of 1798, establishing a Court of Patents, in the hope we might be able to satisfy ourselves that we are at liberty to determine this case upon principles of equity; but the result is that we find it impossible to do so without a departure from theobviousmeaning of the Legislature. The present proceedings are under that act, and besides the generality of the expressions used, thescire faciasis directed to be awarded against the grantee, or patentee, theowner, orperson claiming under such grant;and the act in substance declares that if any grant shall appear upon verdict, or demurrer, to have beenmade againstlaw, the court shall vacate it. For us, then, to hold that the act did not extend to the case of an innocent purchaser would be like adding a saving to the act of limitations. The Legislature, in its enumeration of cases, has mentioned precisely that in which the defendant is placed, viz., a person claiming under the grant; and there is nothing from which it can be collected that he was to be more favored than a purchaser with notice. This act, in its operation, must be construed like the act declaring gaming bonds void, by which, as the Legislature has made no savings, all gaming bonds, into whatever hands they may come, are absolutely void.

Then as to the other part of the case, whether this grant was made against law, we think there can be no doubt. The act of 1777 pointed out in what manner grants should be obtained;Page 277and in the case of entry-takers directs that they shall (378) enter lands before a justice of the peace, to be returned to the County Court, and then declares that entries by entry-takers made otherwise shall bevoid, and liable to the entry of any other person. Miller, the grantee,wasan entry-taker, and obtained this grant in defiance of the law. His grant, therefore, was against law. Any other construction would be to render inefficient the principal object of the Legislature, which was to vacate the many grants that had been made upon illegal entries and illegal warrants. This act was passed immediately after the discovery of the improper practices that had prevailed in the several land offices, and from its scope seems to comprehend every possible case.

As to the act of limitations, there is no limitation prescribed by the act, and section 9 gives the court jurisdiction and cognizance ofallgrants made since 4 July, 1776, by which it would seem that it was the intention of the Legislature to exclude the operation of length of time. But if the acts of limitation did apply, there was not twenty years before the petitioner's grant to bar the State, nor seven years afterwards, before the filing of this petition, to bar the petitioner. So that in no event can the defendant be aided. There must therefore be judgment for the petitioner that the grant be vacated.Cited: Harris v. Norman(misciting this case asSewell v. Manney,)96 N.C. 62.

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