Holland's Heirs v. Crow
| Decision Date | 31 August 1851 |
| Court | North Carolina Supreme Court |
| Parties | JAMES HOLLAND'S HEIRS v. JOHN CROW et al. |
On a petition to vacate a junior grant by more than one person, when one only had any existing title to the premises, the misjoinder is no bar to a judgment vacating the grant.
The relators have a right to this remedy, whether they prove any actual dam. age or not; for the subsequent grant is per se a cloud upon the owner's title and, so, a grievance to him.
Where there was an order to amend and the subsequent proceedings in the case are based upon the assumption that the amendment has been made, the course is, to consider the order as standing for the amendment itself.
Parties claiming under a junior grant cannot impeach an elder one directly; much less can they do it in a collateral manner.
The cases of McRae v. Alexander, 3 Hawks 322, 1 Dev. 321, Hoyle v. Logan, 4 Dev. 495, Ufford v. Lucas, 2 Hawks 214, Hoyt v. Rich, 4 Dev. 533, and Crow v. Holland, 4 Dev. 417 cited and approved.
Appeal from the Superior Court of Law of Haywood County, Spring Term, 1848, his Honor Judge BATTLE presiding.
This is a petition and scire facias to vacate a grant for 640 acres of land in Haywood, obtained by the defendant, John Crow, on the 17th day of November, 1820, upon the ground, that the greater part of the same land had been granted to James Holland, the elder, on the 5th day of September, 1798, and that at the time Crow made his entry and obtained his grant, he knew of the said prior grant to Holland, and that the same covered the greater part of the land included in the entry and grant to Crow, and, therefore, that the land was not then subject to entry, and with such knowledge fraudulently made his entry and obtained his grant. The petition was exhibited in October, 1838, by Hardy Perkins and his wife, Selina Sophia, and by Peter R. Booker and his wife Cynthia, and represented that James Holland, the elder, died in the year 1825, seised of the land and in possession thereof, leaving the petitioners, Selina Sophia and Cynthia Booker, and one James Holland the younger, his only children and heirs at law, to whom the said land then descended from their said father; and that James Holland, the younger, afterwards died, and the petitioners entered into possession of the land and so continued up to the filing of the petition: The petition further states, that, by color of the grant to Crow, he and the other defendants, claiming under him, by petition in Crow's name instituted a scire facias against the said children and heirs at law of James Holland, the elder, for the repeal of the grant to Holland, for certain pretended frauds in obtaining the same, and otherwise disturbed them in their possession, and that in the suit so instituted by Crow, judgment was rendered for the defendants therein.
The defendant, Crow, did not appear; and the other defendants put in answers to the petition, in which they state the manner in which they respectively claim under Crow, all the land included in the grant to him; and further allege, that the grant to Holland was, itself, void, because it was founded on an entry by one Felix Walker, which he, being surveyor, surveyed for himself, and then transfered to Holland, and because of other defects assigned: The answers then deny, “that Crow procured his grant with a knowledge, that the land was not the subject of entry, as the defendants are advised, and believe that the said land was vacant and unappropriated and the subject of entry at the date of the entry of the said Crow, the said grant to said James Holland being fraudulent and void as aforesaid.” The answers further admit, that some of the defendants instituted the proceedings in the name of Crow to vacate Holland's grant, and that the several defendants still set up various claims to the land under Crow. The answers deny a knowledge by the defendants of the children and heirs at law of the elder Holland. In 1840, the death of Peter R. Booker was suggested and his wife Cynthia Booker was allowed to prosecute the suit for herself; and at the same time, on the motion of the relators and of Sarah Ann Holland, Mary L. Holland, and Cynthia Holland, the three infant children of James Holland, the younger, deceased, and his heirs at law, by their guardian and next friend, an order was made for amending the petition by making those three children parties, as some of the heirs of James Holland, the grantee; and the Court ordered the scire facias to issue, as prayed for. The amendment was not actually made in the petition, but the scire facias was issued, as upon the relation of Perkins and wife, Cynthia Booker, and Sarah Ann Holland, Mary L. Holland, and Cynthia Holland, as the heirs at law of James Holland the elder. On the scire facias issues were joined, on which the jury found, amongst other things, that, at the time the defendant Crow obtained his grant and made his entry, he knew of the previous entry by James Holland the elder and of the grant to him, and that the two entries and grants interfere in a certain manner specified; and that the relators, Cynthia Booker and Selina Sophia, the wife of the relator Hardy Perkins, are heirs at law of the said James Holland the elder, and that the other relators Sarah Ann, Mary L. and Cynthia Holland are not heirs at law of the said James the elder.
Upon the trial the relators produced as a witness one Andrew Welch, who deposed that many years ago a man came to the house of the witness in Haywood County, who told him, the witness, that his name was John Crow, and that he had lately entered “The Holland Old Fields,” being the premises in dispute; and that the witness asked him, if he did not know, that James Holland had entered the same lands long before, and he, Crow, replied, that he did: and thereupon the witness further asked him, why he had done so, and Crow replied, that he did it because Holland's grant might be void, and as it would only cost him forty cents to make an entry, he thought he would try it. On the part of the defendants it was objected, that there was no...
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Bowser v. Wescott
...persons, of whom one only has any existing title to the premises, the misjoinder is no bar to a judgment vacating a grant.-Holland's Heirs v. Crow, 34 N.C. 275. [i] C. 1851) The relators have a right to this remedy whether they prove any actual damage or not; the subsequent grant being, per......
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Bowser v. Wescott.*
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Crawford v. Wayne County Bd. of Ed., 688IC298
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