30 N.C. 470 | N.C. | 1848
The plaintiff claimed the premises under a grant made to Jesse Ray, in 1829, for 3,000 acres of land, as a bounty for erecting iron works, under the act of 1788. The patent describes the land by buts and bounds, which, upon calculation, includes 8,699 acres; and after the description then follow these words, "including within its bounds 5,699 acres of land, which is excepted in this grant." The survey annexed to the grant contains the boundaries set out in the grant and designates the quantity of the land as 3,000 acres, but does not except any part or quantity of the land within the survey. But the plat attached to the survey has laid down, within the exterior (471) boundaries of the whole tract, a number of smaller plats, having no description annexed to them, except that within some of them are written "100 acres, 175 acres," and so on.
The defendant alleged that the grant was void, and offered to prove by witnesses that the requisites of the statute had not been complied with in various particulars in entering the land and having it viewed and surveyed. But the court refused to receive the evidence. The defendant then offered witnesses to prove what land it was intended to except, and that such exception included 50 acres which one Campbell had entered before Ray's survey, which was granted to the defendant in 1840. But the court rejected this testimony also.
The defendant then moved the court to instruct the jury that it was incumbent on the plaintiff to show with certainty the land excepted, and that without doing so he could not recover. But the court refused to give such instructions, and informed the jury that the plaintiff was entitled to recover, as the defendant had not shown an elder grant for the land in his possession.
Verdict and judgment for the plaintiff, and the defendant appealed.
There have been a great many cases following those of Reynolds v. Flinn,
But in this action the law is that the grant is to be received as valid; and we think it is to be read as if there were no exception in it, since the exception as expressed is so vague as not to identify the part excepted, and is therefore ineffectual.
PER CURIAM. Judgment affirmed.
Cited: McCormick v. Monroe,