
    *Blankenpickler v. Anderson’s Heirs.
    July Term, 1860,
    Lewisburg.
    i. Land Patents—Grantee Dead When Issued Void. If the grantee in a patent for land was dead at the time the grant issued, the patent is void; and this maybe shown on atrial in ejectment in which one party claims under the patent
    This was an action of ejectment in the Circuit court of Smythe county, brought by John Anderson against A. J. Blankenpickler. Pending the action Anderson died, and it was revived in the name of his heirs. There was a verdict and judgment for the plaintiffs; and the tenant obtained a writ of error.
    On the trial of the cause the tenant filed two bills of exceptions; the first to the refusal of the court to give an instruction to the jury; and the second to the refusal to grant a new trial, in which the facts were set out.
    The first bill of exception was taken on the second day of the trial, and sets out— That on the trial of this cause the tenant asked the court to give the following instruction, viz: “If the jury shall believe from the evidence that the patent dated the 6th day of May, 1787, from the Commonwealth of Virginia to Joseph Cole, for two hundred and fifty-nine acres, under which the plaintiffs claim, was issued after the death of Joseph Cole, the grantee named therein, then said patent is void, and the jury must find for the defendant; unless they believe from the other evidence that the plaintiffs have right to the land in controversy”—but the court refused to give the instruction. To which opinion of the court the defendant excepts. The bill of exception to the refusal *of the court to grant a new trial shows that the plaintiffs claimed under the patent to Cole.
    Campbell and John W. Johnston, for the appellant.
    J. W. Sheffey and B. R. Johnston, for the appellees.
    
      
      See a Min. Inst. (4th Ed.) 987, 990.
    
   ROBFRTSON, J.

The first assignment of error is for the refusal of the Court to give the following instruction, viz:

“If the jury shall believe from the evidence, that the patent dated the 6th day of May, 1787, from the Commonwealth of Virginia to Joseph Cole, for 259 acres, under which the plaintiffs claim, was issued after the death of Joseph Cole, the grantee named therein, then said patent is void, and the jury must find for the defendant; unless they believe from the other evidence that the plaintiffs have right to the land in controversy.”

On behalf of the defendants in error it is insisted, that the bill of exceptions is too imperfect to enable this court to say that the instruction ought to have been given, even if it shall be of opinion that the proposition of law stated in it is correct; because there is nothing to show that it was relevant to the matter in issue.

This objection we think is not well founded. It is true that the bill of exceptions contains no direct recital that the patent referred to had been introduced and relied on by the plaintiffs, or that evidence had been offered, showing, or tending to show that the grantee in the patent was dead at the time it was issued; but the necessary inference from the statements of the bill is that such was the case.

It sufficiently appears, therefore, on the fact of the bill of exceptions, that the instruction asked for was relevant and material ; so that it ought to have been given if it stated the law correctly.

To every grant it is essential that there should be a ^grantee, as well as a grantor; and the grantee' must, when the grant is made, be in esse and capable of receiving; otherwise the grant is void. Comyn’s Dig. Tit. Grant, A. B.

It seems to be quite clear, therefore, that a patent for land is void, if the patentee is dead at the time it is issued.

In Kentucky a statute was passed in 1792 reciting }hat “Whereas in some instances grants have been issued in the names of persons who were dead prior to the date of the grant, and case of the same nature may happen in the future,” |,nd enacting, “that in all' such cases the land shall descend to the heir, heirs or devisees in the same manner as it would do if the grant issued in the lifetime of the deceden t. ” Stat. Laws of Ky. p. 779; 1 Lit. 160. And it has been held in that Sta’ that a patent issued to a dead person pr. :• to this act of 1792, conferred no right uitil the passage of the act; and that, where in the interval between the issuing of- such patent and the passage of the act, a patent had been issued to another, the title of the grantee in the last patent was good against the heir or devisee of the grantee in the prior patent, who was dead when it issued in his favor. Lewis v. McGee, 1 A. K. Marsh. R. 199.

No such statute has ever been passed in Virginia.—Section 12, Ch. 144 of the Code, p. 582 (which re-enacts the law of February 24th, 1820—acts 1819-20, ch. 28 § 2) does not make valid a patent issued to one dead at the time, or give to his heirs and devisees the benefit of it. It manifestly applies to personal contracts and obligations merely, and the remedy given by it is confined to the personal representatives. As to patents therefore the rule of the common law is still in force with us.

But it is insisted that, admitting this to be so, yet the instruction ought not to have been given, because a patent cannot, in an action at law, be avoided or defeated by ^matter dehors: that a patent, being record evidence that a title has passed from the commonwealth, cannot, as long as it remains in force and it is not vacated or annulled by some direct proceeding calling in question its validity, be collaterally impeached for any matter not appearing on its face.

There has been much conflict of opinion, and no little contrariety of decision upon the question how far a patent may be impeached, in an action at law, for causes not apparent on its face. The better opinion seems to be that while its validity cannot be questioned in a suit at law, but is impeachable in equity only, for causes anterior to its being issued which render it voidable merely; it may be impeachd at law, for any matter which makes it absolutely void: as where the State has no title to -the thing granted, or where the officer had no authority to issue the grant. Polk’s Lessee v. Wendal, 9 Cranch's R. 87; Same case, 5 Wheat. R. 293; Patterson v. Winn, 11 Wheat R. 380; Whittington v. Christian, 2 Rand. 353; Warwick v. Norvell, 1 Rob. R. 308.

In the case now under consideration, there was no effort to impeach or set aside a patent. The design was to show that the paper purporting to be a patent, did not really possess that character. The defence set up was not that a patent relied on by the plaintiffs ought to be vacated, but that the paper produced by them, as and for a patent, was in truth no patent—that it was an utter nullity. Of course therefore the rules protecting patents from assault, in a court of law, can have no application. A matter like this is, to use, the language of Judge Marsh 'll in Polk’s Lessee v. Wendal, “necessarily examinable at law.” Accordingly in the case, already referred to, of Lewis v. McGee, 1 A. K. Marsh. R. 199, the patent was held void in an action of ejectment; thq-e being no suggestion even that it ''Is necessary to *resort to a scire facL i, or other proceeding, for the purpose of vacating it.

The refusal to give the instruction asked for, constitutes error for which the judgment must be reversed, and the cause remanded for a new trial. This renders it unnecessary to express an opinion upon any of the other question in the case, inasmuch as upon the next trial they may not arise.

The other judges concurred in the opinion of ROBERTSON, J.

Judgment reversed.  