Foreman v. . Tyson

I am satisfied with the former decisions. 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 parol testimony would be dreadful indeed; the most valuable estates might be overturned by one or two corrupt witnesses at any time. It is far better to reject such testimony than let in such an evil with it.

So the evidence was rejected.

The jury had better give a special verdict, that the law upon this point may be settled upon a deliberate decision.

Were this res integra, I 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 under certain circumstances shall be void; it is now said, and I believe properly, that equity will not repeal the grant. The sci. fa. issues in England from the court of chancery on the law side, and is returned into that court for judgment, after a trial upon the issue of fact in the King's Bench; or, in case of a demurrer, judgment is given by the chancellor without sending the record out of his court at all. 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 showing 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 act of 1777, and for five years afterwards, no court of equity existed in this State. With respect to the common law, 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. Re., 109, in which the effect (498) of a grant was avoided by evidence given to the jury to show its invalidity. There are other cases in trespass, and other actions reported by the same author, where grants coming incidentally to be examined before the Court were avoided upon testimony given to the jury. There 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 of cancellation in 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 bound by those adjudications which have *Page 400 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 I cannot concur with the reasons which have been given for them.

I am inclined to think the priority of number is of some weight in the decision of this case. It will not do to say, in case of two grants of equal date, that he shall prevail who is in possession. It should be decided by some rule more satisfactory. In common cases the date of the grant is resorted to, although it is (500) plain that gives no certain proof of priority of execution, for the grants are made out ready for execution, and dated a long time before 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, WILLIAMS, J., was for granting it; but HAYWOOD, J., would not now deliver an opinion upon the motion, saying a State grant might be suspended at any time before it was enrolled, which proved that before *Page 402 enrollment the grant was not complete; and this differed from the case of the enrollment of a deed of bargain and sale, which could not be 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 ruled in this case, see Reynolds v.Flinn, and the note thereto, ante, 106. Upon the last point, see Andrews v.Mulford, ante, 311, and Riddick v. Legget, 7 N.C. 539.