
    Smith vs. Smith.
    
      A person cannot set up a title under a grantee who was dead at the time the grant was taken out, as there was no one in esse in whom it could vest.
    This was an action of trespass to try titles to a tract of land. The plaintiff claimed under a grant issued in 1775 to Agnes Harbison. The defence was that the pretended grantee died in 1773, previously to the issuing of the grant and therefore the land never vested in her. To that it was replied that the defendant could not have the benefit of such a defence, because a court of law could not enquire into the validity of a grant.
    The jury found a verdict for the plaintiff. The defendant moved for a new trial.
    Clarke, for the motion.
    Williams, contra.
   Curia, per

Nott, J.

The validity of the grant is not brought into question in this case. The whole en-quiry relates to the grantée. There can be no doubt but that the title vested in Agnes Harbison if she was alive in the year 1775, and that the plaintiff was entitled to recover. So that the whole case is resolved into that single question. It is manifest that Agnes Harbison under whom the plaintiff claims died two years before this grant was issued. It could not take effect, therefore, because there was no person in esse in whom it could vest. The land still continued vacant, and might be taken up by the defendant or any other person. The verdict is therefore clearly contrary to the evidence, and a new trial must be granted.

Colcock, J. I have a doubt whether we can look beyond the grant.

New trial granted.  