| N.C. | Aug 5, 1851
The Court is inclined to the opinion that the testimony of Love, though not as definite and precise as it might and ought to have been, is so expressed as to render it probable that the witness meant to depose that the patentee left the two daughters named in the deposition, and also a son, James Holland, Jr., who afterwards died, leaving the three infant children, who are the other relators, and that they and their two aunts were, therefore, believed by the witness to be the heirs of the elder James Holland, deceased. That seems to have been so probably the meaning of the witness as to have rendered it proper to leave the evidence to the jury for their inference upon that point. But it is not requisite to decide that question since, if held to be for the appellants, it would entitle them only to a venire de novo, whereas they were entitled in law to a judgment vacating the grant upon the (280) verdict as it stands and supposing it right in respect of the finding as to the heirs of the elder Holland. The judgment rendered on thescire facias was in behalf of the State, and it was held in McRee v.Alexander,
It is contended further for the defendants that there ought not to be judgment against them, because there was error in leaving the (281) case to the jury upon insufficient evidence as to the knowledge of Crow, the patentee, of the previous grant to Holland at the time he made his entry. But the Court thinks the evidence was competent, and that its sufficiency depended on the conviction it produced in the minds of the jury that the John Crow of whom the witness spoke was or was not the same person who by that name obtained the patent. Under the circumstances, the evidence was not only competent, but in the judgment of most persons would be deemed sufficient. There was no suggestion that there were about that period two persons of that name in that part of the country, much less that the Holland Old Fields had been entered by more than one of them. Besides, the knowledge by the patentee Crow of Holland's grant when he made his own entry is but a reasonable inference from that part of the answer in which the defendants insist that Crow did not procure his grant with a knowledge that the land was not subject to entry — not because he was not aware that Holland had entered it and got his grant, but because Holland's entry and grant were void for certain reasons assigned, and for that reason the land was vacated and unappropriated. The facts were, therefore, properly left to the jury on that issue.
The answers also refute in point of fact the last objection of the defendants, that the grant to Crow did not aggrieve the relators as it had caused them no disturbance, for the defendants state explicitly that, under the grant to Crow, some of them had at different times during nearly the whole period from 1820 disputed the title under Holland's grant and been in litigation in some form with the tenants of the relators for the possession of the land. Indeed, if that were not the fact, the *195
relators would have a right to this remedy, since the subsequent grant is per se a cloud upon the owner's title, and so a grievance to him. Hoytv. Rich,
PER CURIAM. Judgment accordingly.
Cited: S. v. Yellowday,