#### M'Ree’s heirs v. Alexander.

~t t From Mecklenburg. J

Where a defendant has been in possession thirteen years, under a grant which was found by a jury to have been obtained with full knowledge of a prior grant lor the same land, the second grant will be vacated notwithstanding the length of time; the act of limitations has no application in such case.

Whether possession under the second grant, for seven years prior to its being vacated, is a good bar in ejectment. Queryt

Petition to vacate a grant. The petitioners set forth, that in the year 1806 the defendant obtained a grant for seventy acres of land, which before the war of the revolution had been granted to their father, who lived and died possessed of the same, and that the title thereto descended to the petitioners, who were his heirs at law: that these facts were well known to the defendant when he obtained his grant, and therefore the petitioners charged that the defendant’s grant was obtained by fraud, false suggestions, and contrary to law; and concluded with praying that a sdre facias might issue to the defendant, to show cause- why his grant should not be vacated.

The defendant answered, that at the time'of obtaining his grant, he did not know that it had btíen granted to the father of the petitioners; that he caused the register’s Office of the county to be searched, and no evidence there appeared to show that the land had been previously patented: that he believed it to be vacant and unappropriated land when he obtained his patent; and further, that he had now been in actual possession thereof thirteen years, and was advised that lie thereby liad acquired good title, although .it should now appear to have been previously granted.

To so much of the answer as relied on the possession of defendant, there was a replication that two of the petitioners were infants,- and the other a feme covert.

*323A jury found, before Badger, judge, below, that the defendant at the time of making his entry, and- obtaining his grant, had full knowledge of the prior grant to the father of the petitioners:

That defendant, in the spring of 1808, took actual possession of the land, and has continued it ever since:

That one of the petitioners in September 1806 married and hath ever since been a feme covert; and that the other petitioners were not infants when defendant obtained his grant. ■ .

Judgment of the Court, that the grant of defendant be vacated, whereupon defendant appealed.

Ruffin, for appellant.

1. Notice of the grant to M‘Rce makes ho difference: that doctrine, even in equity, never applies to distinct adverse legal titles, for notice of a prior defective title Will not validate it, nor will ignorance of a prior paramount title impair that or make good the weaker title of the purchaser. There are many cases in the books to this effect, and the memorable case of Jones v. Zollicoffer, (JV*. C. Term R. 212.) has settled the question here.

2. The question then is, whether, under, the act of 1777, (eh. 114. see. 9.) this grant is void because the lands had been previously granted?

I admit that it passed nothing, because the state cannot convey what she has not; in that sense it is void, as are the deeds of all individuals who have not title to that which the deed covers; but that was not the meaning ■ of the act of 1777. — It prescribes the mode of entry, survey and grant of vacant lands, and adopts various regulations with a twofold view:

1. To secure the purchase money to the state;

2. To prevent conflicting titles by entry among settlers1.

The whole scope of the act relates to the granting of unappropriated lands, and the grants, made void by the 9th section, are tliose for « any of the before mentioned *324lands. The case of a second grant for the same land, wa»' j[n the contemplation of the legislature, and is not A u within the purview of the act; there was no necessity lor any legislative provision, the grant was ineffectual without it. The consequences of a contrary construction would be most serious, for if the second grant be with or without notice, and if only a very small part of the land has been previously granted, it is void in Mo,.being declared so by statute, as in cases of usury, gaming, and the like: and further, it would be the same in the hands of a Iona fide purchaser, as in those of the original grantee,-3. The statute of limitations protects the defendant.

A second grant, even with notice of a former one, is undoubtedly colour of title, which will turn a possession under it into a good title. Reddick v. Leggatt, (3 MurpJu R. 539.) Tate v. Southard, (3 Hawks 119.)

Notice makes no difference under this statute; for even if a joint tenant or tenant in common, actually ousts another, and continues in possession, he acquires a good title. (Cowp. 217. 2 Mk. 632.)

The coverture of one of the petitioners does not prevent the bar, for there were two others, and each of them sui juris. Rydenv. Trion, (3 MurpJu R. 577.) If it be said 'that the act of 1798, which gives this sd. fa, prescribes-no limitation, and therefore that none could be pleaded in this proceeding: I answer, that such a construction would lead to endless confusion, uncertainty of titles and litigation; for if time and possession be not a bar here, it ■cannot be hereafter in the ejectment brought by these petitioners; in as much as the grant, the very colour of title upon which the possession, to be effectual, must be founded, is put out of the way and vacated by this judgment. The effect will be to declare that where land has been once granted, no good title ever can be had for it, but under that grant, which will repeal the statute of limitations. It will be strange if a possession under a deed from an individual without any grant under which *325 he claims shall give good title, while a grant from the sovereign proprietor shall be waste paper; and' that too notwithstanding the circumstances attending the acquisition of title by grant are much more notorious than those of a private conveyance.

Independently, however, of general reasoning, the act of 1798 itself furnishes sufficient evidence of the validity of this bar. It provides for two cases,

1. Where the state is injured by a grant improperly ob-iained; in whiclrit may be safely admitted that time is no bar against the state’s remedy; and,

2. Where private persons are aggrieved in a similar mode. (10 and 11 secliom.)

Those persons only, then, are entitled to this remedy who have right in the lands, for they only can be aggrieved. In this way the statute of limitations operates here .as in all other cases touching the title to lands: the statute, in its words, no more bars an action of ejcctmenty than it does this petition and sd. fa.; the-remedy touching the title to land- is not mentioned in any instance: the act attaches on the right itself; and when the right to the land is gone, the claimant can neither maintain eject-’: ment nor any other remedial action, hence the statute need not in any case be pleaded in bar of the action, be-. ©ause it goes to the right. The act of 1798 cannot apply to a case of a prior grant against one that is junior, because the second, of itself, is no injury to the grantee in the first. It affects him through the possession under it only which by his own negligence is permitted to ripen into title. The possession is the principal ingredient in the defendant’s title, and that is the object of the protecr tion of the statute of limitations.

If the first grantee will lie by, until the possession under a void grant gives a good title against him, he has ino ground to complain of the grant, he should rather find fault with his <nvn laches,

*326Hall, Judge.

The act which gives jurisdiction to the Court declares, that when it shall appear to the Court J7JT that a grant had issued against law, or obtained by false suggestions, surprise, or fraud, it shall be lawful for said Court to give judgment that such grant he repealed, vacated, and made void.

In this case the jury have expressly found against the-ánswer of the defendant, ««that at the time of the defend-' ant making his entry and obtaining his grant, he had full knowledge of the prior grant to the father of the petitioners.” It follows of course, that the grant to the defendant wás fraudulently obtained, and that it was obtained against law, because it covered land which had been previously appropriated by M«/fee’s grant. It is unnecessary to say any thing about a case where the defendant had not notice. But it is objected that the statute of limitations is a bar to this petition. My answer-is, that the act of 1798 recognizes no time as a bar, nor do I think that the act of 1715 can he used for that purpose. This is not an action to recover the land, nor does the title to it come in issue, though incidentally it may be effected. by the judgment given in this case. It is said that if time and possession be not a bar in this case, it .cannot he in an ejectment hereafter brought by the petitioners. Whether that will or ought to be the result of the judgment given in this case, I give no opinion.

It is again objected, that the act of 1798 was not intended by the legislature to embrace grants that issued for lands that had been previously granted, but only on grants that irregularly issued for vacant lands. The act in words makes no such distinction, and I think there is, no reason why it should, because grants of that description, although invalid at the time of their date, might have the effect to destroy the titles of the first grantees, and they, having paid for the lands, were as much the object of legislative protection, as it was to guard against the issuing of grants for vacant lands when the purchase-*327money had not been paid, entered for the petitioners. I think judgment should be

Henderson, Judge.

It is first objected, that the act of 1777, the entry law, does not declare such grants as the present to be void, for that the clause in that law declaring all grants issued contrary to the provisions of that act to be void, relates exclusively to grants for vacant land. The act excludes from entry all lands heretofore granted; and the clause in question declares all grants issued-contrary to the provisions of that act, to be void. This land had been before that time granted; another grant for it, under colour of the provisions of the act, is contrary to such provisions. I think it, therefore, within the act. But, independent of the act, it is void upon common law principles. For either suggestio falsi or suppressio veri is sufficient to avoid the grants of the sovereign; and if such maxim is proper in-a regal government, where there is a permanent person to take care of sovereign rights, a fortioH it is proper in a re* publican government, where there is no such person, This grant being made upon a false suggestion, viz. that the land was vacant, is therefore void.

The next objection is, that it appears that one of the relators is barred of his right to the land by seven years possession thereof by the defendant under the grant. Without deciding whether a possession for seven years or more under a void grant obtained mala fide, shows such a want of interest in the person who would be otherwise owner, as would induce the Court to abstain from acting, as doing an act in no way beneficial to the relator, who is therefore considered as an officious intermed-ien: — without, I say, deciding this* I think thé title of the other relators, whose rights are saved by the proviso ©f the act of limitations, is sufficient for the Court to proceed on. And as the grant cannot he void as to one person and good as to another, as it may he good for ene *328 thing and void as to another; it should be repealed, or rather vacated in the whole, leaving the effect of possession under it before vacation to be settled by future adjudications. The defendant has no right to complain, that the grant is taken from him, and that he is left to his possession only. For the principle which restrains a Court from acting before it appears that the relator has an interest, is not from any tenderness to a defendant, but that the Court will not be moved to act at the instance of one in no way interested. It is not the defendant’s rights that are regarded, but the useless and unnecessary consumption of time. If the state chooses to act, no relator is necessary- The question never arises cv£ tono. She wills it, and the time is her own. I think .that the grant should be annulled for all the lands, which liad-been previously granted.

The Chief Justice concurred.-