#### JAMES HOLLAND’S HEIRS vs. JOHN CROW & AL.

A scire facias to repeal a patent, should set out particularly the patent of the' plaintiff, or his title derived from a patent, with its boundaries and location; also a copy of the patent, with its boundaries, granted to the defendant or the person, under whom he claims, with all their correct names, and also how the two patents conflict; and the scire facias should also aver the reasons why the defendant’s patent should be cancelled. If the defendant denies any of the plaintiff’s allegations, issues upon those allegations and denials must be found by a jury. Otherwise, the court will not give judgment.

Appeal from the Superior Court of Law of Haywood Coun-íy, at the Spring Term, 1842, his Honor. Judge Bailey presi- - .ding.

, This was a petition and scire facias by the heirs of an .elder against a junior patentee, to vacate a grant, under the act of 1798, Rev. St. ch. 42, s. 31. The petition set forth the plaintiffs’ ancestors and the defendants’ grant, describing them, and alleging that the defendants’ grant covered the land previously granted to the plaintiff’s ancestor, and that the defendant and those who claimed under him, were continually harassing them with suits, and praying that the defendant’s grant might be declared' void. The defendants in their answer to the petition, insisted that, for certain reasons there mentioned, the plaintiff’s grant was void. The scire facias merely recited, that “ a petition had been filed by the heirs of James Holland, deceased, under the act of 1798, praying that the grant to John Crow for, certain lands, may be repealed and va,cated,” and commanded the sheriff “ to make known to John Crow (and others named as assignees) that they should be and appear, &c. then and there to shew cause, if any they have, why such grant or patent to the said John Crow should not be repealed and vacated.” Upon the return of the scire facias executed, the following issues were submitted to a jury: 1st, tyas Janies Holland, the ancestor of the plaintiffs in this *449case, the senior patentee? 2ndly. Did the defendant, John Crow, know of the existence oí the plaintiff’s grant, at the time the said Crow obtained his grant. The jury found both of the issues in favor of the plaintiffs. On the tria], a witness on the part of the plaintiffs proved, that, in a conversation with Crow, he informed the witness that he had made an entry on the Holland old field; when the witness observed, why did you do so ? do you not know that Holland long since obtained a grant for the said tract ? Crow answered, I do, but understand the title is not good, and it will not cost me much any how ; I will try it. The jury having found the issues as above stated, his Honor, believing the defendants’ grant was obtained by fraud and upon false suggestions, ordered, adjudged and decreed that the defendants’ grant be vacated. From this judgment the defendant appealed. .

Francis for the plaintiffs.

J G. Bynam for the defendants.

Daniel, J.

The Act of Assembly, originally passed in 1798, Rev. Stat. ch. 42, sec. 31, declares, that, when any person claiming title to lands under a patent, shall consider himself aggrieved by any patent, issued to any other person against law, or obtained by false suggestions, surprise or fraud, such person, so aggrieved, may file his petition in the Superi- or Court of Law of the County, in which the land may lie, together with an authenticated copy of the said patent; which petition shall briefly state the grounds, wherefore such patent should be repealed and vacated. Whereupon, a writ of scire facias shall issue out of the said Superior Court to the claimant under such patent, requiring him to shew cause, why such patent, thus improperly issued and obtained, should not be vacated. The scire facias shall be the leading process, and all the proceedings thereon shall conform to the general rules of practice at law in such cases, except that, when the scire facias cannot be personally made known, then the Court shall order publication in the newspapers for the defendant to *450appear and plead, or judgment by default on the scire facias would be rendered against hi m. When the defendant appears, he will demur, or plead and make up issues and try them by a jury, according to the practice on scire facias at law. In England, the King’s patents are enrolled, on the common law side of the Court of Chancery. And when the King, or any person, is aggrieved by the issuing of a patent, for any oí the causes before mentioned, the Attorney General causes a scire facias, in the name of the King, to issue, to vacate it; which scire facias contains proper averments of the causes on which it is founded. The scire facias issues out of the Court of Chancery. The judgment is, that the patent be vacated 'and brought into the Court of Chancery, that the Chancellor, who has affixed the great seal to it, may take off the seal. In this State, patents are not enrolled in the Superior Courts of law; therefore the legislature required the person aggrieved to file a petition in the Superior Court in his own name, as a foundation for the scire facias. The plaintiff’s petition first, and then his writ of scire facias, founded on it, should set out, with particularity, his own patent, or his title derived, from a patent, with its boundaries and location ; and also a copy of the patent, with its boundaries, which had been granted to the defendant, or those under whom he claims title to the land, with all their correct names, and also how the two patents conflict. And the writ of scire facias should not only recite the patent of each party, but should also make all the material averments, why the defendant’s patent should be cancelled. When all these things have been done by the plaintiff, and the defendant brought into Court by a proper service of the scire facias, the latter will be enabled to demur or plead un. derstandingly •; and if any issues are made up, the jury can plainly see what they are to try, and the Court will know from the record what judgment to render. In the case now before us, there are no plaintiffs mentioned in the scire faci-as by their Christian and sirnames, no description of Crow’s patent by its date, boundary, location or interference with Holland’s patent. The defendants.have not put in any pleas *451to the writ and action, which are material (if their answers were to be considered by us as pleas,) except that part, which state that the lands patented by Holland, was not by law subject to entry, and that therefore the patent to Holland was void) and not voidable. Upon this plea no issue has been made up and found by a jury. The plaintiff’s petition states, that the land, patented by Crow, was identically the same land, which had been patented by Holland; but there is no averment of this fact in the scire facials ; and the verdict, which has been found by the jury, does not shew to the Court, that there was any interference in the two patents, or that there was any lawful cause or ground for the court to vacate the patent to Crow. We therefore think that the judgment must be reversed and the cause remanded to the Superior Court, when a repleader may be allowed, or such other steps taken as may be agreeable to right and law.

Per Curiam, Judgment reversed and cause remanded