O'Kelly v. Clayton

• Decision Date: 30 June 1837
• Citation: 19 N.C. 246
• Court: North Carolina Supreme Court
• Parties: BENJAMIN O'KELLY v. JOHN CLAYTON and RICHARD O'KELLY.

19 N.C. 246

BENJAMIN O'KELLY

v.JOHN CLAYTON and RICHARD O'KELLY.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1837.

1. A grantee cannot, under the act of 1798 (Taylor's Rev. App. 193), maintain a scire facias, to repeal a prior grant of the same land: neither will the fact of his entry being the first, entitle him to that remedy.

2. The case of Crow v. Holland, 15 N. C., 417; and Featherston v. Mills, Ibid 596, approved and followed.

This was a scire facias, at the relation of Benjamin O'Kelly, to vacate a grant issued to the defendant, Richard O'Kelly. It was suggested therein, and charged in the petition, that the relator, on 4 Jan., 1830, made an entry, No. 3389, in the county of Buncombe, of six acres of land, on North Glade Creek: that immediately thereafter, at the request of the defendant Richard, he made in the name and for the benefit of said Richard, another entry, No. 3390, of fifty acres of land adjoining the above entry of the relator: that the other defendant, Clayton, afterwards represented to Richard, that each of those entries covered land which belonged to him, and induced Richard to abandon his entry, and surrender to him, Clayton, the warrant: and that Clayton, with knowledge of the prior entry of the relator, and with the intention to cheat and defraud him, afterwards procured a survey, and had it made so as to include the most valuable part of the land entered by the relator, and obtained a grant in the name of Richard O'Kelly, dated 22 Nov., 1831, and under it took possession of the land: and that afterwards, the relator procured his grant dated 22 Dec, 1831.

On the motion of the defendants, his Honor Judge Pearson, at Buncombe on the last Circuit, quashed the scire facias, and dismissed the petition, upon the ground that the relator, being the junior patentee, was not entitled to thisremedy; from which an appeal was taken to this Court

RUFFIN, Chief Justice, after stating the case as above, proceeded as follows: The decision of his Honor is in conformity to the cases of Crow v. Holland, 15 N. C., 417; and Featherston v. Mills, Id., 596. If this appeal was intended

to bring under consideration the doctrine of those cases, it is to be regretted that the appellant has not aided us by another argument. Although those decisions were made upon advisement after full arguments, the Court would cheerfully listen to any well founded objections to them, choosing rather to retract our error than to persist in it. But as no member of the Court has at any time entertained a doubt upon any one of the positions on which those decisions rest, the rule of the common law, the provisions of our statute, and the principles and policy which govern its construction, we see no reason to be dissatisfied with the opinions there delivered, but retain them entirely. Indeed, we conceive that a contrary doctrine, judicial or legislative, would disturb the public repose, endanger numerous old titles, and be fraught with public inconveniences and private mischiefs, the extent of which is beyond the forecast of any man.

The right to vacate a grant of the sovereign, must originally be the right of the sovereign alone. It may be exercised upon the ground that the patent was obtained to the injury of the public, strictly speaking; as if the officers entrusted with the duty were to issue a patent without payment of the purchase money into the treasury. It may also be exercised upon the ground that the sovereign has been betrayed by false suggestions, into making a deed to one person to the prejuduice of another; as if a patent be obtained for land which the state has already granted or agreed to grant; for it is a fraud on the state, and an injury to her, to make her involuntarily the instrument of injustice and wrong to individuals. Theright of this remedy has however been delegated to "any person aggrieved by any patent," and such person is allowed to use his great prerogative writ as a private remedy. But in what state of facts can he thus use it? We think clearly that it can only be, when the act complained of was, in its perpetration, an...