#### Foreman v. Tyson.

Slate grants cannot be avoided by evidence in ejectment, recourse must be had to Equity for that purpose. Where two patents bear the same date, Haywood, Judge, thought the priority of number might d. cide the preference in the absence of other proof; but Widmams, Judge, contra.

Ejectment. And not guilty pleaded. On the trial, Toreman produced in evidence a State grant, dated the 51 st of October, 1782, to one James Lanair; and then *572deduced the title regularly to himself. The Defendant also produced a grant foe the same land, dated on the same d o — thereupon the Plaintiff stated, and offered to prove, that Tyson’s grant was obtained against the provisions of the ael of-1777, c. 1, sec. 9, which declares all titles obtained otherwise than according to the directions of that act, to be void.

Dame, for the Defendant

The decisions of our courts ever since the act of 1777, have been, that grants under such circa instances shall be avoided in a Court of Equity, not indeed by repealing the grant, but by decreeing the grantee to convey to him who should have had tiie title; these decisions will govern the present case, and operate to tin rejection of the testimony offered.

Baker, for the Plaintiff

Wherever an act of Assembly declares, that a deed obtained under particular circumstances, shall be void — a deed obtained under such circumstances, is absolutely void to all purposes ; and there need not be any direct judgment to make it void. It may be objected to, and its invalidity shewn whenever it bet emes material to shew it in an> action whatsoever. And he csted 2 Term 604, 515, 561, 568.

Davie, e contra■

Grants of the State, or of the King in. England, are of record, and cannot be avoided but by . something of as high a nature — therefore it is, that in •England, a judgment must be pronounced against them upon a sci.fa. brought to repeal them, before (hey can be< deemed invalid. They are like judgments, valid in law, till repealed by competent authority. But if the cause of die invalidity of a grant appears of record already, then- i" no occasion for a sci.fa. and the court maypro-ce-d >o vacate by judgment without any verdict upon die ‘sci.fa.; and for this he cited 4 Com. 397. In the present cas., no cause of invaliilry appears of record, and the grant is valid and .cannot be avoided in this action by paroi testimony. '

Haywood, Justice — Were this res integra,! should be of opinion that such evidence as is now offered, ought to be received ; and this opinion would be founded as well upon the act of Assembly, as upon the common law.— The act says, a grant issued u.itler certain circumstances, shall be void ; it is now said, and I believe p.-iperly, tiiat Equity will not repea: ’lie grant. The sci, fa. issues in England from ttie Court of Chancery on the law *573side,. and is returned into that court for judgment, after a tria! upon the issue of fact in the King’s Bench. — or casp of a demurrer, judgment is given by the Chancellor without sending the record out of his court atall. It would seem to follow from hence, that a sci.fa. to repeal a grant could not issue from this court, and if it cannot, there-remains no other mode of avoiding the grant, but by. shewing its invalidity in an action, it is evident, the act of Assembly intended that the grant, should be avoided in a Court of Law ; for at the time, of passing the aet of 1777, and for five, years afterwards, no Court of Equity existed in this State, With respect to the, common ¡aw, I have no doubt, but that such evidence might be received;, the authorities cited at the bar prove it; and- there is a case of ejectment, 10 Co. Be. 109, in which the. effect of a grant was avoided by evidence given to the jury to shew its invalidity. There are other cases in trespass, and other actions reported by the same aulhor,. where grants coming incidentally to be examined before the court,. “were avoided upon testimony given to the jury. T^iere are two ways at common law of impeaching a grant either upon a trial at law, where the validity of the grant comes in question,or where the party likely to be prejudiced by it, and apprehending a loss of evidence to prove its invalidity, brings a sci.fa... and obtains judgment cancillation and repeal, and so destroys the grant itself;." but there is no use of the latter proceeding; where the-evidence to counteract the grant,, is as permanent in its nature as the grant- itself; that is to say, where the evidence is of record. But though this would have been my opinion, had no decisions taken place in our court, I cannot now but consider myself hound by those adjudications which have been made ; it. is better to adhere, to them, than to render the law uncertain by contrary decisions. I must., therefore, yield to the authority'of-the decisions,, though 1 cannot concur with the reasons which have been given for them.

'Judge Williams — I am satisfied with the former de-cisiona: I have heard many arguments upon this question, and I am every time, more and more strengthened in the opinion, that the. former adjudications are proper.. To avoid a grant upon pin-ol testimony, would bedieadful indeed : the most valuable estates might be overturned by one or two corrupt witnesses at any time. It is fáS* *574better to reject such testimony, than let in such an evil with it. So the evidence was rejected.

General Dame for the Defendant

( the evidence being closed) insisted, that the Defendant being in possession, cannot be deprived of it legally, but by the Plaintiff’s shewing a better title 5 which in the present case he has not shewn — Ids grant is of the same date with ours. As to the number of his grant — that indeed, is of an earlier number than ours, but the number of the grant is a circumstance of no materiality. t Tiie Secretary was examined in this cause last term, and he said the number was of no consequence in determining the priority — that the course of the office was, to make out the deeds for execution in the Secretary’s office, and send them in a bag or box to be executed, when they arc signqd by the Governor as they happen to come to hand ; after which, they are returned to (he Secretary’s office all together in a bag or box, and recorded, and numbered as they are record-cd. The course of the office is to he regarded, in like manner, as the course of business in mercantile transactions — 'and if it be to be regarded, then it is evident the circumstance of numbering the deeds, is immaterial in a question of priority. It is not required by any law ; it was introduced into practice to facilitate business in the Secretary’s office. Men’s titles are not to be decided by recurrence to circumstances so trivial — -they cannot'be regarded — and then there is nothing to determine the priority, the court having rejected that of the priority of the survey.'

Baker for the Plaintiff

The date of the grant is what has hitherto been adopted, as the rule of deciding upon the point of preference ; that fails in the present case, and we must necessarily recur to some other circumstance or leave the point undecided — and the parties, to endless contention. The number proves that the deed first numbered, was that which was fir-t recorded; and recording is the circumstance which finally completes the grant.— The priority of the number in our grant, is therefore a proof that it was complete before the other — and of course the title first vested and was complete in us, This point was decided by Judge Haywood, at Wilmington, some time ago, as I am informed.

General Dame — Tlx' case at Wilmington did not depend upon this point — it was decided upon the statute of *575limitations — I was concehu'd in if. As to what is ar-good, that the recording the grant, is the completing circumstance, that is indeed necessary, but is of no weight in deciding priority of execution. The grant or deed when recorded, relates to the date — the common case of deeds of bargain and sale proves this. If two deeds for the. same land be granted to two different persons, and the deed of the latter date be first registered, that will not defeat the title of the first bargainee — but his deed af-terwards reedrded, shall relate to the date thereof, and give him the preference. The time of recording therefore, is immaterial.

Per cmimn

The jury had better give a special verdict that the law upon this point may be settled upon a deliberate decision. Etper Judge Haywood — I am inclined to think the priority of number, is of some weight in she decision of this case. It. will not do to say in case of rwo grants of espial date, that he shall prevail who is in possession. If. should be decided by some rule more satisfactory. In common cases, the date of the grant is resoplad to, although if is plain, that gives no certain proof of priority of execution ; for the grants aie made out ready for execution, and dated a long time bdbre the actual execution takes place. In fact, as the grants are sent in large numbers to the Governor’s Secretary to be executed, and are executed as they happen to come to hand, it may, and no doubt frequently does happen in fact, that a deed of latter date is first executed. Or suppose, they are dated by the Governor’s Secretary as they come to hand, after the execution, still it may happen, that a deed first executed, may be the last dated. But as some circumstance must be taken, the courts have adopted that of the date — and where that is found not to answer the purpose, some other circumstance, by parity of reason, should be resorted to, and priority of number is some evidence, though not conclusive, that the deed which has that circumstance in its favor, was first dated.

The jury found for the Plaintiff, and a new trial being moved for, Judge Wiiíiams was for granting it.; but Judge Haywood would not now deliver an opinion upon the motion, saying, a State grant might, be suspended at any time-, before it was cm oiled — which proven, that hefue.- enrolment, the grant v\ as not cnmphv i an! his differed from the case of the enrolment of a deed of bar*576gain and sale, which could riot he prevented after the execution — that the point deserved consideration, and he would endeavor to form an opinion, when it should be argued hereafter upon this motion.

Note- As to the- first point rilled in this case, see Reynolds v Flinn, and the note thereto, ante 106. Upon the la^t point, -see Andrews v. Mulford, ante 311, and Riddick & Wife v. Legget, 3 Murph. 539.