
    Den on demise of James Tyrrell v. Peter Mooney.
    From Rutherford.
    Evidence to prove that the person under whom the Defendant claim, ed, wa3 entry-taker at the time he made his entry, and that he did 4fbt make his entry in the manner directed by the act of 1777, ch.
    1, (which declares the entry void unless made as the act directs) is inadmissible upon the trial of an action of ejectment.
    Although if the case were “ ret integra,” the Court might give a different opinion, the construction which was early given to the act of 1777, ch. 1, not to vacate grants by parol evidence in actions of, ejectment, ought not now to be departed frqjp.
    In many cases, although a statute declares im act void, the Courts will construe it to mean that the act is only voidable.
    It is of more consequence, that the rules of property should be fixed and notorious, than that they should conform to the principles of justice.
    Upon the trial of this ejectment, evidence was offered on behalf of the lessor of the Plaintiff, to prove that the person under whom the Defendant claimed, was enfty-taker of the county of Rutherford, at the time the entry 'was made upon which the grant issued, under which the Defendant claimed title to the lands in question j and that in making his entry, lie did not comply with the provisions of the act of 1777, ch. 1, which act in the 9th section declares, 6i That if any entry-taker shall be desirous to make any entry of lands in his own name, such entry shall be made in its proper place before a justice of the peace of the county, not being a surveyor or assistant •, which entry the justice shall return to the County Court at their next sitting, and the County Court shall insert such entry: and every entry made by or for such entry-taker, in any other manner than is therein directed, shall be illegal and void, and any other person may enter, survey, and obtain a grant for the same lands.” This evidence was rejected by the Court, and a verdict was rendered for the Plaintiff. A rule for a new trial was obtained, and the case was sent to this Court upon the question, “ Whether, upon the trial of an ejectment, the evidence offered should be received ?” J
    
   LocKE, Judge,

delivered the opinion of the Court:

The many cases occurring* in our Courts under the act of 1777, ch. 1, compelled the Judges at an early period to adopt a construction which excludes the evidence offered in this case. In the case of Reynolds v. Flinn, 1 Haywood’s Rep. 106, the Court said, “ Here the Plaintiff has a State grant, and it would be of the most dangerous consequence to avoid it by parol testimony. It is true, that the act of 1777, ch. 1, sec. 9, declares, ‘that every right, title, claim, &c. obtained in fraud, elusion, or evasion of the directions of that act, shall be deemed void f but the meaning is, that it shall be void,as to the State, who may proceed to avoid it by scire facias; not that it shall be avoided upon evidence in ejectment by an individual citizen.” In the case of Wright v. Bo-gan, it was insisted for the Defendant, that he was entitled to the land, because he made the first entry j but the Court said the rule was, that the first grant gave the best title, not the first entry — 1 Hay. 177. The same doctrine was held by the Court in the case of Andrews v. Mulford—Id. 318. Many other cases might be adduced, to shew that the construction of this act of Assembly has uniformly excluded evidence of this kind in an action of ejectment, and compelled persons who have been injured by fraudulent grants to resort to a Court of Equity for relief. Many cases might also be adduced, to shew that where a statute declares an act void, the construction has been, that it is only voidable : as the case of Smith v. Warren, where the Court held, that although the statute of additions directs, that if any person be outlawed without addition, the outlawry shall be void and of none effect, yet it shall not be void without writ of error. The construction of the act of 1777, has been so long fixed, that the Court cannot think at this day of altering it$ although if this case was entirely new, and brought before the Court now for the first time for a de-cisión, a different construction might possibly be given to the act. Rules of property which have become known and fixed, and which have been long acted under, should never be broken in upon, but for reasons of the most urgent necessity, and then only by the Legislature. In many instances, it is of much more consequence that the rule should be certain and notorious, than that it should be conformable, to strict notions of justice : especially in a case like the present; for the observance of this rule does not deprive the l’laiutiff of all remedy ; it only compels him to seek it in a Court of Equity, or institute proceedings under the act of 1798, ch. 7, to vacate the grant, which has been obtained in fraud, elusion, or evasion of the act of 1777. The practice of the Courts in refusing evidence in an action of ejectment to vacate a grant, was well known to the Legislature of 1798 ; and the passing of the act of 1798, ch. 7, and therein giving a remedy at Common Law, must be considered as a Legislative sanction of this practice. This act, instead of directing grants improperly obtained to be vacated by parol evidence in an action of ejectment, has pointed out a much more safe and effectual method of vacating grants, by declaring, that when any person or persons, claiming title to lands in any of the comities of .this State, under a grant or patent from the King of Great-Britain, any of the Lords Proprietors of North-Carolina, or from the State of North-Carolina, shall consider himself or themselves aggrieved by any grant .or patent issued or made since the fourth day of July, 1776, to any other person against law, or obtained by false suggestions, surprise or fraud, such person so aggrieved may file his petition in the Superior Court of Law for the district in which such land may lie, together with an authenticated copy of said grant or1 patent; which petition shall briefly state the grounds whereon such patent should be repealed and vacated ¡ and thereupon a writ of scire facias shall issue to the grantee, patentee or person claiming under such grant or patent, requiring him to shew cause why such grant or patent should not be repealed and vacated.” And the act authorises the Court to give judgment that such grant or patent be repealed, vacated and made void.

It has been contended, that there has been a departure from the rule early established, in the cases of the Trustees of the University v. Sawyer, and Strother v. Cathey. There is certainly a wide difference between those cases and that now under consideration. In the first, the grant was declared void, not upon the ground that the entry was irregular, and that some of the requisitions of the act of 1777, had been omitted; but because that act only authorised the entry-taker to receive entries for vacant and unappropriated land : that the Secretary and Governor had only power to issue grants for land of that description, and as the land for which the Defendant had obtained a grant, had been entered and granted before the entry of the Defendant Sawyer was made, his grant was deemed to be ipso facto void. So in the case of Strother v. Cathey, at the time the land claimed by the Defendant was entered, the State had no title to it: it had been previously granted to the Chero-tee Indians, and was the property of that tribe solely and exclusively; and every entry-taker was forbidden to receive entries for it. The grant to the Defendant was therefore declared void : the State had no title or interest in the land. But the present case is quite different: the land was the property of the State; it was vacant and unappropriated; the officers of State were clothed with power to issue the grant to the Defendant, and the only defect complained of, is the mode of obtaining the grant. This defect must be remedied, and the injury thereby produced redressed by an application to a Court of Equity, or by a petition filed in a Court of Law, under the act of 1798. The evidence was properly rejected,-and the rule for a new trial must be discharged. 
      
       Roll. Rep. 159.
     
      
       Taylor’s Rep. 115.
     
      
       Decided in this Court.
     
      
       The principle settled in the case of the Trustees of the University w. Sawyer, was this, that grants of escheated or confiscated lands by officers appointed to convey •vacant lands, are void. This case was decided in Edenton Superior Court, at April Term, 1799. The land had been originally granted to a person who left the State before the year 1771, since which time he had not been heard of. In the year 1780, part of the same tract of land was granted to a person, whose title had jome to the Defendant, and in the year 1788, another part of the same tract was granted to another person, whose title had likewise come to the Defendant.' It was argued for the Defendant, that the State, at the time of these respective grants, was entitled to the lands, either by escheat or confiscation ; and having granted them to persons under whom the Defendant claims, could not afterwards make a valid grant of the same lands to the Trustees of the University. But supposing the grants under which the Defendant claimed to be voidable, as having issued by a mistake occasioned by the misreprentation of the grantees, yet they could not be avoided on a trial in ejectment. By tub Coukt. — The officers authorised by the government to sell and convey vacant lands, which had never been appropriated by any grant, have sold and conveyed lands, which have been thus appropriated : to this, their power did not extend, and consequently all such sales and grants are void. The Court will not, on the trial of an ejectment, declare that grants thus circumstanced shall be recalled and cancelled j but they are bound, by the positive terms of the act of 1777, ch. 1, s. 9, to dolare that they transfer no title
     