| N.C. | Jul 5, 1818
From Rutherford. Manney pleaded that he had no knowledge of any irregularity in Miller's obtaining the grant; that he was a bona fide purchaser 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, *276 lastly, that petitioner hath not title to the whole tract covered 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 to all the 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. 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 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, orperson claiming under such grant; and the act in substance declares that if any grant shall appear upon verdict, or demurrer, to have been made 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; *277 and 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 be void, and liable to the entry of any other person. Miller, the grantee, was an 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 of all grants 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 as Sewell v. Manney,)
(379)