15 N.C. 417 | N.C. | 1834
As the cause was decided upon a point not noticed in the Court below, the only fact which it is necessary to state is, that the plaintiff claimed title to the land covered by the grant to the ancestor of the defendants, under a grant which issued subsequent to 5 December, 1798.
The case was argued at a former term by Gaston, for the defendants, and by Badger, for the plaintiff; and again at the last term, by Winston, for the defendants, and by Badger, for the plaintiff. This is a Petition and Scire Facias, under Laws 1798, ch. 7, to vacate a patent granted by the State to James Holland, deceased. The petition is filed by, and the (418) scire facias sued out in the name of the plaintiff, who had obtained a subsequent patent for the same lands, and who suggests that the patent to Holland had been obtained by fraud and false suggestions, in violation of the laws prescribing the manner of entering, surveying and patenting lands.
Several grounds of defence have been taken, and among them there is one which is now for the first time, we believe, presented for adjudication in this State, and which as well on account of the principles which it involves, as of its extensive application, deserves to be fully and deliberately considered.
It is objected, that a scire facias to reverse or vacate a patent can never be sued out by a younger, against an elder patentee. Cases have occurred, in which the question might have been raised. In Tyrrell v.Manney,
In England, the writ of scire facias to vacate a patent issues from the Common Law side of the Court of Chancery, where the patent is enrolled, and is there adjudicated, unless the pleadings terminate in an issue or issues of fact. If they do, then the pleadings are made up in the Rolls Office, and the record sent into the Court of King's Bench, to be tried by a jury, where on a verdict had, the judgment is rendered (1 Mad. C. P., 4, 5). As the office of the Secretary of State, where patents for land are enrolled, is an establishment distinct from any of the courts of justice in this State, and as it is a rule of *343 law that a scire facias, founded upon any record, must issue from, and be returnable into the court where the record is, legislation became necessary to give jurisdiction to the courts, on disputed questions relative to the obtaining of patents for lands. The Legislature therefore passed the act of (419) 1798 (Taylor's Rev. Appendix), for that purpose, which act directs a copy of the grant from the Secretary's office to be filed in the office of the clerk of the Superior Court of Law, with a petition by the plaintiff, by way of suggestion when he brings suit, whereupon the writ of scire facias issues, calling upon the defendant to show cause why the grant should not be vacated. The proceeding is a Common Law proceeding on the scire facias, and the defence should be at Common Law, and not as in Equity.
On reading the act of 1798, it appears that the first eight sections contemplate only the establishment of a Court of Patents, to be held in the city of Raleigh, and the regulation of proceedings therein. The State only had a right to bring suits in that court by way of scire facias, to try the validity of grants. The ninth section of the act gave a concurrent jurisdiction with the Court of Patents, to the Superior Courts of Law of all grants and patents issued since 4 July, 1776, for lands situated in the respective districts of such Superior Courts. The tenth section declares that when any person claiming title to land under a grant from the King, Lords Proprietors or from the State of North Carolina, shall consider himself aggrieved by any grant or patent, issued since 4 July, 1776, to any person or persons against law, such person so aggrieved may file his petition in the Superior Court of Law, with a copy of the patent, whereupon a scire facias shall issue to the patentee, or person, owner or claimant under such grant, to show cause why the patent should not be vacated.
Did the Legislature, when it passed the act of 1798, suppose that a junior patentee could be aggrieved, because the State had been imposed on or defrauded by an elder patentee? Was not the tenth section enacted for the benefit of those persons who held patents from the King, Lords Proprietors, or the State and should be aggrieved by their titles being clouded, or endangered by a color of title which might be set up, under a junior grant for the same land, obtained since 4 July, 1776?
In the English books, there are many cases, where ascire facias has been brought by the elder patentee, to (420) vacate the junior patent, and decrees and judgments rendered accordingly; but we have not been able to find a single adjudication to vacate a patent on a scire facias, in favor of *344 a junior, against an elder patentee. In Bassett v. Torrington, Dyer, 276 a, the Court decided that the last patentee could not bring a scire facias to vacate the eldest. The Court said, "it is contrary to the books of precedents, and the common course," This decision was made at Trinity Term, 10 Eliz. by the Master of Rolls, assisted by two Judges. There are dicta to the contrary of this decision, but no adjudication as we can learn.
The case in Jenkin's Centuries (page 126) was a scire facias
by the first against the second patentee, to repeal the second patent, and the Court held that if the first patentee be ousted, he might at his election bring an assize, or a scire facias, if the patent be for lands, or an office for life. The compiler (a man of admitted ability), adds a note at the foot of this case, in which he says, "regularly the law is as aforesaid, but the younger patentee may have it against the elder." To support what he has said in this note, he cites Dyer 133, 198 and 15 E. IV. 3. We have examined the cases in Dyer, the first is Daniel's
case, which was a scire facias, brought by the second patentee, to reverse an elder patent to Daniel, on account of some irregularity; but it does not appear that any judgment in the case was ever rendered by the Court. The second case cited, does not support the principle laid down in Judge Jenkin's
note; for the scire facias there, was by the elder patentee to vacate the younger patent. The case in the year book (14 E. 4, 3), we are unable to get, but if it supported the position for which it was cited, it would have been referred to in the subsequent case of Bassett v. Torrington, where the question came directly before the Court. It is not cited in that case, therefore, we conclude it is not a case in point. InJackson v. Lawton (10 John., 23), the only point for the decision of the Court was, whether an elder patent could (421) be set aside in an action for ejectment brought by the second patentee, on the ground of a mistake in the issuing of it. The Court determined that it could not, but in delivering the judgment of the Court, Judge Kent expresses his opinion that the elder patent may, by scire facias, be set aside at the instance of the junior patentee. The question now discussed was not argued by the counsel in that cause, and the opinion is avowedly extrajudicial. On examining the books referred to by the learned Judge, there is not to be found an adjudged case either in this country, or in England, to support his position. The Judge remarks that it would be difficult to assign a good reason why the second patentee should not have the writ. It seems to us that legal reasons of great weight not only may be urged, but have been urged under the sanction *345
of high judicial authority, in opposition to such a course. InOverton v. Campbell, 5 Hay. (Tenn.) 206, the learned JudgeHaywood remarks that "the second patentee cannot have thescire facias, because he is not so prejudiced by the first grant when it issued, and because the right to bring a real action is not transferred by the second grant without a special recital." In a case nearly analogous, it was observed by an eminent Judge in Pennsylvania (4 Dal., 204, 5), "that innumerable mischiefs, and endless confusion would ensue from individuals taking upon themselves to judge when warrants, and surveys, and grants were to have validity." In the case of Dodson v.Cooke,
Considering these authorities as decisive — satisfied that it is the established rule of the Common Law, that no one is prejudiced by the King's grant but he who had a prior grant for, or an ancient vested right in, the same thing — that no other subject could have a scire facias to repeal the King's grant — that in all the other cases the scire facias must (423) be brought by the King, jure regio, himself to repeal his own grant — it seems to us demonstrable on examining the whole act of 1798, that this broad, ancient, wise, and well established distinction, is observed and kept up by the General Assembly. The remedy is for the State, where the State has been defrauded, and scire facias may also be sued out by an individual, when such individual is aggrieved. "Aggrieved, " in the language of our Legislature, is synonymous with "prejudiced" in the text-books. This idea, if it could receive confirmation, is strengthened by the words used in the tenth section, setting forth who may be aggrieved, and how such injury may arise. "When any person or persons claiming titles to lands in this State, under a grant or patent from the King of Great Britain, any of the LordsProprietors of North Carolina, or from the State of North Carolina, shall consider himself or themselves aggrieved by any grant or patent made since 4 July, 1776, etc." The two first classes of cases cannot include any but elder patentees aggrieved by younger patents; and the third class must be construed as applying to such as, like those embraced in the first and second classes, are entitled to the like remedy, because they suffer the like grievance — that is to say, they are prejudiced, or in danger of being prejudiced, by a grant to another of the lands previously granted to them. If this point had ever been distinctly brought to the notice of the Court, and had received a different determination, We would hesitate long before we consent to change the rule. But as we understand the previous cases, this is the first time the question has been stirred. We, therefore, feel the less reluctance in delivering this opinion, satisfied that it is consonant to the will of the Legislature, in conformity to fundamental principles, and conducive to the security of titles, and the repose of the community. *347
Judgment is to be reversed, and judgment to be rendered for the defendants with costs.
PER CURIAM. Judgment reversed.*
Cited: O'Kelly v. Clayton,
(424)
