Henry v. . McCoy , 131 N.C. 586 ( 1902 )

It appears from the complaint that on 1 April, 1899, H. H. McCoy entered into the entry taker's office of Macon County a tract of land; that he died in 1899, without having paid the State and without having taken out a grant for the land; that within the time required by the statute his sister, Pearlie McCoy, on 31 December, 1901, paid for the land entered by her brother, and procured a grant from the State to be made out in his name. It appears further in the complaint that the plaintiff, J. S. Henry, on 8 September, 1900, entered in the same office the same tract of land, and on 14 March, 1902, obtained a grant from the State for the same.

This action was brought by the plaintiff against the defendants, who are heirs at law of H. H. McCoy, to have the grant issued to H. H. McCoy declared void, and for possession of the tract of land. The grounds assigned by the plaintiff for his action are fraud on the part of Pearlie McCoy in procuring the warrant, and that Ammons, who made the survey for McCoy, was not the surveyor, and was neither bonded nor sworn; that he was not a deputy surveyor, and that the chain-carriers were not sworn. There was a demurrer to the complaint in the following words: "1. That plaintiff's complaint does not state a cause of action. 2. That from said complaint it appears that the defendants have the oldest grant, as well as the oldest entry, for the land described in the complaint. 3. For that a State grant cannot be attacked for the reasons, or any of the reasons, mentioned in said complaint. 4. That said complaint fails to show wherein any fraud was practiced on plaintiff by defendants." His Honor sustained the demurrer, and the plaintiff appealed.

We see no error in the ruling. The defendants have the oldest grant; the entry was regularly made and within the time allowed by law; the price of the land was paid by the sister of (588) H. H. McCoy, who was then dead, and the grant made in the name of the deceased enterer, which was the proper course. Code, sec. 2780. The plaintiff made his entry of the land before the grant was issued to McCoy, but he did not procure his grant until after the McCoy grant had been issued. If there was any fraud practiced by Pearlie McCoy upon any one, it was upon the State and not upon the plaintiff. If Ammons was not the surveyor duly sworn and qualified, or if the chain-carriers were not sworn, they are matters that the plaintiff cannot complain of, he being a junior grantee. This action was brought under section 2786 of the Code. In Carter v. White,101 N.C. 30, the action was brought under the same statute. The Court said there: "In the construction of the statute it is held that the remedy is open only to the senior against a junior grantee, inasmuch as none can be aggrieved unless he has an interest in the subject-matter of the obnoxious grant when it is issued, which a junior grantee has not; and the purpose is to remove a cloud overshadowing a previously acquired title. This question was before the Court for the first time in Crow v. Holland,15 N.C. 417. In that case the Court said: "Did the Legislature, when it passed the act of 1798 (section 2786 of the Code), 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?" The Court then cited numerous authorities from the English and American courts to the effect that a junior patentee could not be aggrieved because the State had been imposed on or defrauded by an elder patentee, and concluded the opinion by saying: "Considering these authorities as (589) 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 other cases the scire facias must 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, when the State has been defrauded, and a scire facias may also be sued out by an individual when such individual is aggrieved. To the same effect is the case of Ray v.Castle, 79 N.C. 580.

No error.