This was, therefore, a motion for a new trial, as the verdict was alleged to be against law, and the charge of the judge who tried the cause. The Judges, without argument, ordered the verdict to be set aside, and a new trial granted, without costs. Present, GRIMKE, WATIES, JOHNSON, TREZEVANT and BREVARD. Columbia, 1802. Where there are two grants THOMAS MUSE against SAMUEL Laughridge. TRESPASS to try titles to land in Fairfield district. for the same Verdict for defendant. Motion for new trial. land, the elder one shall al ways prevail; This case was tried before Mr. Justice TREZEVANT, who and although reported that the plaintiff, Mr. Muse, had surveyed the land the younger in question on the 25th September, 1787, and took out his grantee might have lapsed grant the 4th of February, 1793, upwards of five years af the right of the elder one ter the time of his survey. by entering a caveat, and shewing that he had lost his That the defendant, finding that the plaintiff had omitted to take out his grant for a considerable length of time, had right to pre- it surveyed for himself on the 22d of January, 1793, and ference before the passing of obtained a grant for it on the 1st of July, 1793, and the the elder grant, yet it question was, which grant should have the preference. is too late af- to the elder The presiding judge, in his charge to the jury, told them, seal is fixed that the plaintiff was bound to take out his grant within six months after the time of the survey, which was in Sepcannot take tember, 1787, and after that time he lost his exclusive right ation the me- to it, and any other person was at liberty to run it out. That into consider rits of the was matter for grantees; that defendant having done so, he then gained an exclusive right the court of to it for six months after his survey, which was on the 22d caveats, be- of January, 1793, and his grant was taken out on the 1st of passed. July, 1793, within the six months after the date of his surIt was true, he said, the plaintiff had got a grant for fore the graut vey. Muse V. the land after the defendant's survey, on the 4th of Febru ary, 1793, but he conceived that grant of the plaintiff's Laughridge. void, under the 4th clause of the act amending the land act, (Public Laws, 400.) which enacts, "that a person making of land, shall be allowed six months to obtain a grant for it, and in case of default within that time, any "other person may apply for and obtain a grant for it, on "payment of the fees; and any grant for the land within "six months from the time of its being surveyed, (except a survey by the person for whom it was surveyed,) shall be ipso "facto void." Under this clause he was of opinion that the plaintiff's grant was null and void; and the jury, according to his direction, found a verdict for the defendant. Mr. Smith, in support of the motion for a new trial, contended, that the exception in the 4th clause of the act amending the land act, above quoted, expressly saved the right of the plaintiff, and that it should be construed to extend to persons in his predicament, still giving them the preference, if they thought proper to take out the grant, but declaring all other grants taken out within the six months, but to the one for whom it was originally surveyed, null and void. That it was the duty of the defendant, when he surveyed the land in January, 1793, to have entered a caveat before the governor and council, (forbidding all persons from taking out a grant for that land until he was heard,) who would then have determined who had the preference, and decided on the claims of the parties; but as he did not, there was nothing which stood in the way of the plaintiff from taking out his grant on the original survey, which had been regularly returned into the surveyor-general's office. By this means he might possibly have lapsed the plaintiff's right, and shewn that he had been negligent in not taking out his grant on his original survey within the time allowed by law, and that he had forfeited his claim; unless the plaintiff had on his part shewn sufficient reasons why he had delayed taking out his grant, which he might have done, and which would have been matter very proper for the consideration of the council board before the grant had passed. That, at all events, these were not points for the consideration of this court at this distant day, but were determinable by a competent tribunal, previous to the grant under the great seal of the state. That having regularly passed, the fee of the land legally ' vested in the plaintiff, and he was entitled to a recovery. Mr. Evans, for defendant, against the motion, insisted, that the omission to take out the plaintiff's grant, on his original survey, within six months after the survey was made, amounted to a forfeiture of every right he had acquired by any previous steps he might have taken; and that the exception mentioned in the clause of the act amending the land act, should be construed to extend to the last person surveying the land, and not to the person who had been guilty of laches and delay in omitting to take out his grant after he had surveyed the land. The Judges, after hearing the arguments, were in favour of a new trial, on the ground that it was incumbent on the defendant, when he had surveyed the land in question as lapsed land, to have entered a caveat against its being granted to any other person, until he was heard by himself or counsel on the merits of his claim. This would have been a sufficient notice to the opposite party to have come forward and shewn his reasons for so long a delay in perfecting his right, and also information to the council board that the land had been previously surveyed for another, by which means the whole merits of both the claimants would have come fully and fairly before the governor and council, who at that time formed the only tribunal competent to try and determine who were or were not entitled to the fee of the soil in ques tion. But instead of pursuing this mode, which was the usage and custom in this country, from time immemorial, in regard to those disputed claims, the defendant appears privately to have surveyed his land, and obtained a grant for it, without any sort of notice either to the present plaintiff or the council board. V. As, however, nothing stood in the way of the plaintiff Muse when he perfected his grant on his original survey, which Laughridge. had been regularly returned into the surveyor-general's office, and his grant was the eldest, it unquestionably had a preference, and consequently the very reverse of the proposition is true, and the younger grant is null and void instead of the elder one. Besides, they were all of opinion, that it would be introductory of much confusion and litigation, as had been well observed by the plaintiff's counsel, if the court should set afloat the grants of the state for matters previous to the passing of the grant under the great seal; (unless in cases of palpable fraud or imposition ;) and the more especially, as there was a court of caveats then in the full exercise of all its functions, perfectly competent to hear and determine all such points. Rule for new trial made absolute. All the Judges present. EDMUND STRANGE against NATHANIEL DURHAM. Columbia, 1802. TRESPASS to try title to land in Fairfield district. A person ae Verdict for defendant. Motion for new trial. The land in dispute was granted to the plaintiff's father more than 20 years ago, and it was proved that the father cepting a defective title to land, and going into pos session under it, knowing was dead, and that the plaintiff was his heir at law. The the defect, defendant offered in evidence a conveyance made by the plaintiff's attorney, one Andrew Kidd, under which deed he claimed, but as the power was a joint one to the attorneys, four in number, and only one of them had made the deed, an exception was taken to it on the trial, as nugatory in it self, which was sustained by the presiding judge, TREZE expiration of may, after the 5 years, plead the statute of limitations in baragainst any actionbrought against him for recovery of the land. Strange V. Durham. VANT. At the same time, when this defective conveyance was made by Kidd, the defendant was apprized of the circumstance, but was told that he might purchase out the right of the plaintiff (who had removed to the state of Tennessee) upon very reasonable terms. Under these circumstances the defendant accepted the conveyance, and entered into possession of the premises in 1791, which he held without interruption till 1796, when an action was brought against him in Pinckney district; but as the plaintiff lived out of the state, security was demanded for payment of costs, which not being given agreeably to order of court, judgment of nonsuit was entered against him in April term, 1798. In the year 1800, one month before the expiration of the time for bringing a second action, the present suit was commenced. On the trial of this second issue, the defendant relinquished all claim under his deed from Kidd, the attorney of plaintiff, and rested solely on his possessory right under the statute of limitations. Against this right of possession it was alleged, that as defendant went into possession of the land by virtue of this purchase and deed from Kidd, which he knew to be defective, he could not afterwards relinquish his claim to it, and set up title by possession only, though it was admitted that he might have done so, if he had not accepted this conveyance. And of this opinion was the presiding judge in his charge to the jury, but they found a verdict for the defendant. This was a motion for a new trial, on the ground of its being against law, and the charge of the judge who tried the cause. All the other Judges concurred in opinion, however, that there should not be a new trial, as it could not vary the plaintiff's right of action whether the defendant knew that his title was good or bad. It did not depend on the defendant's knowledge or ignorance of the plaintiff's title, but on the statute, which had expressly taken away the plaintiff's remedy, unless his action had been commenced within five years from the time of defendant's entry upon the land. |