Rutherford County NcArchives Court.....Terrell, Vs. Manney 1811-18
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Source: North Carolina Reports
Written: 1811-18

July Term 1818.

TERRELL v. MANNEY.

From Rutherford.

1. In proceedings by sci. fa. under the act of 1798, to vacate a grant, an 
innocent purchaser from the original grantee (the grant being void) is not 
protected; the act subjects to the operation of its provisions any "person 
claiming under the grant," and the Court can make no saving for the benefit of 
innocent purchasers.

2. Entries made by entry-takers, otherwise than the act directs, are void.

3. There is no limitation prescribed by the act. Section 9 gives the court 
jurisdiction and cognizance of all grants made since l July, 1776, by which it 
would seem that the Legislature intended to exclude the operation of time.

Petition to vacate a grant. Petitioner set forth that he made an entry in the 
entry-taker's office of Rutherford, and obtained a grant from the State on 
said entry, for a tract of land in Rutherford County; that his entry was made 
26 March, 1801, and his grant bore date 12 August, 1805, and was duly 
registered; that David Miller, who was now dead, being entry-taker, had before 
made an entry in his own office, in his own name, for the same tract of land 
or a part thereof, without having done so before a justice of the peace for 
the county, and without any return having been made by any justice of the 
peace, of such entry, to the next County Court, as the law required; that in 
fact no entry ever was made on the records of Rutherford County Court, or on 
the books of said Miller as entry-taker, showing that the entry of Miller was 
there inserted by order of the court; that by false suggestions Miller had 
obtained a grant from the State for the land; that one Peter Manney was now in 
possession of the land or part, thereof, under Miller's entry and grant, with 
full knowledge of all the facts connected with Miller's entry and grant; and 
petitioner prayed for a sci. fa. to Manney to show cause why Miller's grant 
should not be vacated.

Manney pleaded that he had no knowledge of any irregularity in Miller's 
obtaining the grant; that he was a bona fide purchaser for valuable 
consideration, without notice; that, he and those under whom he claimed had 
been in possession more than twenty-one years under colorable title; that he 
had been in possession seven years, and that during that time petitioner had 
made no entry; that he was in possession of 50 acres only of the land now 
claimed by virtue of the grant to Miller; and, lastly, that petitioner hath 
not title to the whole tract covered by Miller's grant. Issue was taken on all 
the pleas but the last; to that there was a demurrer and joinder.

Upon the issues submitted to them, a jury found that David Miller made his 
entry contrary to law, as charged in the petition, and under such entry 
obtained his grant; that Manney at the time of receiving a deed of conveyance 
for the land had no notice, and was ignorant, of anything unlawful or 
irregular in Miller's entry or grant; that he purchased of Miller for a full 
and valuable consideration, which he paid; that Manney and those under whom he 
claimed had not been in possession twenty-one years, but that Manney had been 
in the uninterrupted adverse possession of the land for seven years and more, 
before the filing of the notation; that the title of the petitioner did not 
extend to all the land covered by Miller's grant, but to part thereof, 
including all of Miller's grant which Manney claimed.

Upon this finding the court ordered the case to be transmitted to this Court 
for its decision.

Seawell, J. We have carefully examined the act of 1798, establishing a Court 
of Patents, in the hope we might be able to satisfy ourselves that we are at 
liberty to determine this case upon principles of equity; but the result is 
that we find it impossible to do so without a departure from the obvious 
meaning of the Legislature. The present proceedings are under that act, and 
besides the generality of the expressions used, the scire facias is directed 
to be awarded against the grantee, or patentee, the owner, or person claiming 
under such grant; and the act in substance declares that if any grant shall 
appear upon verdict, or demurrer, to have been made against law, the court 
shall vacate it. For us, then, to hold that the act did not extend to the case 
of an innocent purchaser would be like adding a saving to the act of 
limitations. The Legislature, in its enumeration of cases, has mentioned 
precisely that in which the defendant is placed, viz., a person claiming under 
the grant; and there is nothing from which it can be collected that he was to 
be more favored than a purchaser with notice. This act, in its operation, must 
be construed like the act declaring gaming bonds void, by which, as the 
Legislature has made no savings, all gaming bonds, into whatever hands they 
may come, are absolutely void.

Then as to the other part of the case, whether this grant was made against 
law, we think there can be no doubt. The act of 1777 pointed out in what 
manner grants should be obtained; and in the case of entry-takers directs that 
they shall enter lands before a justice of the peace, to be returned to the 
County Court, and then declares that entries by entry-takers made otherwise 
shall be void, and liable to the entry of any other person. Miller, the 
grantee, was an entry-taker, and obtained this grant in defiance of the law. 
His grant, therefore, was against law. Any other construction would be to 
render inefficient the principal object of the Legislature, which was to 
vacate the many grants that had been made upon illegal entries and illegal 
warrants. This act was passed immediately after the discovery of the improper 
practices that had prevailed in the several land offices, and from its scope 
seems to comprehend every possible case.

As to the act of limitations, there is no limitation prescribed by the act, 
and section 9 gives the court jurisdiction and cognizance of all grants made 
since 4 July, 1776, by which it would seem that it was the intention of the 
Legislature to exclude the operation of length of time. But if the acts of 
limitation did apply, there was not twenty years before the petitioner's grant 
to bar the State, nor seven years afterwards, before the filing of this 
petition, to bar the petitioner. So that in no event can the defendant be 
aided. There must therefore be judgment for the petitioner that the grant be 
vacated.

Cited: Harris v. Norman (misciting this case as Sewell v. Manney), 96 N. C., 
62.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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