
    George Huggins et. al. v. Burrell Brewer et. al.
    
    The Court of Common Pleas has no jurisdiction to investigate an alleged fraud in obtaining a grant of lands from the State, except where such jurisdiction has been expressly conferred by act of the Legislature. In all other cases, this Court can declare a grant void only where it is actually void ab initio, either by the rules of common law, or by statute. As a Court of Caveats under the act of 1791, its jurisdiction is confined to an examination of the rights of parties, before the grant has passed the seal of the State.
    Where a grant had been obtained for a large body of land, covering several smaller parcels already granted to other persons, but which were not noticed in either the grant or plat: Held, that it was not actually void, and could only be avoided by the parties interested, or by the State.
    An order granting or denying a rule of survey in an action of trespass to try titles, is interlocutory, and not the subject of an appeal until the final determination of the cause.
    Tried before Mr. Justice O’Neall, at Chesterfield, Fall Term, 1830.
    Trespass to try titles. After the return of the usual rule of survey, under which the grants of both plaintiffs and defendants had been located, it was ascertained that the defendants intended to set up an older grant for 35,000 acres, including the locus in quo : Whereupon the plaintiffs moved to have the rule of survey extended in order to locate several grants to third persons, supposed to be covered by the grant of 35,000 acres, but which were not represented in the plat annexed to that-grant, although known both to the surveyor and the grantee at the time of the survey, to have been then in existence. His Honor denied the motion, the object being to introduce evidence of fraud in obtaining the grant, a question over which the Court had no jurisdiction in this action. The plaintiffs now moved to reverse the decision of his Honor.
    Mitchell, for the motion.
    Contended that the object of the application was to furnish evidence, that the grant for 35,000 acres had been obtained either by suppressio veri, or suggestio falsi, and in either case was absolutely void ah initio. Com. Dig. Grant. G. 8. 9. 2 Bl. Com. 348. But if the grant were voidable only, the Court has ample jurisdiction to declare it void. Meeks v. Richborough, 1 Mill, 414. and De Graffenried v. Gregory, Harp. 443. This latter case has overruled Muse v
      Laughridge, 2 Bay, 426; though both that case and Mounce v, g-ra.ha.cn, 2 Bay, 455.1 Brev. 199. S. C. went upon the ground. that the subject belonged to the jurisdiction of the Court of Caveats. The Court of Caveats had no existence until 1784, but the jurisdiction existed previously; the act of 1784. P. L. 335, vested it in the Court of Caveats ; but the act of 1791,3 Faust. 166, abolished that Court, and restored the jurisdiction of the Common Pleas. Trupier v Wilson, 2 M’C. 191. The act of 1794, 1 Faust, 332, for avoiding grants covering lands already granted, should receive a liberal and extended construction — like the statutes 13 and 27 Eliz. it was intended merely to furnish an additional preventative of fraud : It did not confer a new jurisdiction on the Courts of law, the remedial powers of which always extended to every case of fraud. Cowp. 434. 3 Bl. Com. 431.
    uts of 1807 p. 60;
    Blandtng, antra.
    
    Relied upon the cases of Muse v. Laugh-ridge, and Mounce v. Ingraham. .The cases of Meeks v. Rich-borough, and Be Graffenried v. Gregory, are clearly distinguishable. The first was the case of a grant to an alien, which was a mere nullity; in the other the grant was absolutely void by express act of the legislature. It would not be difficult to shew that the grant for 35,000 acres is not even voidable; but it is. sufficient that it cannot be avoided in this action, or by the present plaintiffs.
   O’Neall J.

delivered the opinion of the Court.

In this case, the Court concur in opinion with the presiding Judge. In Mounce v. Ingraham, 1 Brev. Dig. 199, note, the Court denied the authority of the Court of law to examine the question of fraud in obtaining a grant. This case is noticed as reported in 2 Bay, 454, in the case of De Graffenreid v. Gregory. Harp. 443, and the principle admitted that “ the Court will not question the validity of a grant which appears regular and legal on its face.”

The cases relied upon to establish a different conclusion, are susceptible of an easy answer. They proceed upon the ground, either that the grantee was legally incapable of taking from the State, or that the grant was by act of the general assembly declared void.

Meek v. Richborougb, 1 Mill. 411, is the first case. In it, the grantee at the time his grants issued, and at the trial, was an a^el1 not residing in Carolina. No evidence was given that he had under the proviso to the act of 1807, given notice of his intention to become a citizen of the United States. The grantee was incompetent to acquire an estate in lands by grant. His grants were therefore adjudged to be void at common law. And I think I may very well add, that the grant issued in 1791, was also void under the land law of this State, for it will be seen that by the act of 1791, the Governor is authorized to grant vacant lands to any citizen of this State. A grant to an alien, was not a grant under the act, and therefore void. 1 Faust, 61.

The next and last case is De Graffenreid v. Gregory, Harp. 443. This was a contest between two grants as to priority. The defendant’s grant issued upon the oldest survey; but within the six months allowed by the act to him to carry his survey into a grant. The plaintiff on a junior survey, obtained a grant to be issued to him, which «was older than that to the plaintiff. The act of 1785, P. L. 400, declares a grant obtained on a junior survey, void. The Court in conformity to the act, held, that the plaintiff’s grant was void. This, although regarded by the Court as an exception to the rule laid down in Mounce v. Ingraham, and recognized in this case, was in point of fact perfectly reconeileable with it. Two grants are presented to the Court; “ if regular and legal on their face,” neither is to be questioned as to its validity. From the face of Gregory’s grant it appeared that it had issued within six months from his survey: but from De Graffenreid’s grant, it appeared to have been obtained within the six months allowed to Gregory to obtain his grant: it was therefore illegal on its face, and according to Mounce v. Ingraham, might be declared void.-

The branch of jurisdiction now claimed for the Court i of law belongs to the Court of Equity. Before a grant issues, upon a caveat filed to prevent its issue, the Court of law is by act authorized to try it, and sitting in that capacity, every thing which could go to defeat the survey, would be proper to be heard. But to permit a collateral issue of this kind to be made up in a Couit of law, would not only give it a jurisdiction which it has not, but also be subversive of all the ends of justice. A party relying on a grant from the State, upon adducing it on the trial is told it is trae you have a grant, but it is fraudulent.” How is he to meet this allegation 1 He cannot meet his adversary by proof, for he may not be informed 'of it until the defendant is in his defence, or the plaintiff is replying, as the case may be. By surprise, a man might be ousted of a good legal title. But let it be supposed that the course is pursued which was attempted in this case. The defendant locates a grant older than the plaintiffs, the plaintiff applies to have another survey to locate other grants, so as to establish the alleged fraud. Delay is the first °f this course, and an accumulation of testimony as to every allegation of fraud, is the second. A third, and still stranger resuit may follow. A purchaser buying an apparently good and legal title to lands, may find to his astonishment and ruin, that his grant some twenty years before was fraudulently obtained. These consequences would make us pause long before we admitted such a proceeding, if it was even allowable to us to debate the policy of allowing it.

But even in equity the present parties could not be allowed to, vacate the grant. If there was a fraud in obtaining it, they were not injured by it: they then had no rights to be affected. Persons who then owned land within the grant, might, on a proper case, have succeeded in having it declared void. The State, too, it is possible, might, in some way, have reached the fraud, and obtained the same result.

This Court is also satisfied that the order was interlocutory, and not the subject of appeal; but as the case was heard on its merits, it was thought proper to give such an opinion as would prevent the same points from being again agitated.

Motion refused.  