Waugh v. Richardson
| Decision Date | 31 August 1848 |
| Citation | 8 Ired. 470,30 N.C. 470 |
| Court | North Carolina Supreme Court |
| Parties | DEN ON DEMISE OF W. P. WAUGH v. W. RICHARDSON. |
A grant cannot be avoided upon evidence in ejectment.
The granting part of a deed is not avoided by a defect in the exception; but the exception itself becomes ineffectual thereby and the grant remains in force.
The cases of Reynolds v. Flinn, 1 Hay. 116, and Lewis v. Porter, 1 Hay. 126, cited and approved.
Appeal from the Superior Court of Law of Ashe County, at the Spring Term, 1846, his Honor Judge CALDWELL presiding.
The plaintiff claimed the premises under a grant made to Jesse Ray, in 1829, for three thousand acres of land, as a bounty for erecting iron works, under the act of 1788. The patent describes the land by buts and bounds, which upon calculation, includes 8699 acres; and after that description, then follow these words, “including within its bounds, 5699 acres of land, which is excepted in this grant.” The survey annexed to the grant, contains the boundries set out in the grant and designates the quantity of the land as 3000 acres, but does not except any part or quantity of the land within the survey. But the plat attached to the survey has laid down, within the exterior boundaries of the whole tract, a number of smaller plats, having no description annexed to them, except that, within some of them, are written ??“100 acres, 175 acres,” and so on.
The defendant alleged that the grant was void, and offered to prove by witnesses that the requisites of the statute had not been complied with in various particulars in entering the land and having it viewed and surveyed. But the court refused to receive the evidence. The defendant then offered witnesses to prove what land it was intended to except, and that such exception included 50 acres, which one Campbell had entered before Ray's survey, which was granted to the defendant in 1840. But the Court rejected this testimony also.
The defendant then moved the Court to instruct the jury, that it was incumbent on the plaintiff to shew with certainty the land excepted, and that without doing so, he could not recover. But the court refused to give such instructions, and informed the jury that the plaintiff was entitled to recover, as the defendant had not shown an elder grant for the land in his possession.
Verdict and j??dgment for the plaintiff and the defendant appealed.
Clarke, for the plaintiff .
H. C. Jones, for the defendant .
There have been a great many cases following those of Reynolds v. Flinn, 1. Hay. 106, and Lewis v. Porker, Ibid. 125, and firmly settling the principle there laid down, that a grant cannot be avoided upon evidence in ejectment, notwithstanding the strong and general terms in which the act of 1799 declares them void, if obtained contrary to law. The court was right, therefore, in rejecting the evidence of a violation of the provisions of the act of '88, since it could not legally impeach the grant....
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Bowser v. Wescott
...was included in the first grant.-Eastern Carolina Land, Lumber & Mfg. Co. v. Frey, 112 N.C. 158, 16 S.E. 902, distinguishing Waugh v. Richardson (1848) 30 N.C. 470. Relief to Claimants. [a] (U. S. 1885) That a grant of state land in North Carolina was founded upon "a fraudulent entry, and o......
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Bowser v. Wescott.*
...uncertain, must be inopera-tive and cannot restrain the general terms of the grant according to the description in the patent—Waugh v. Richardson, 30 N. C. 470. [f] (N. C. 1849) There being no statute prescribing the time within which grants must be issued, where the entry money has been pa......
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East Lake Lumber Co. v. East Coast Cedar Co.
...which to locate them, is of course void for uncertainty, as the reservation of 5,000 acres out of a larger body of land granted. Waugh v. Richardson, 30 N.C. 470; v. Monroe, supra; Robeson v. Lewis, 64 N.C. 734. But these questions have now become immaterial and we refer to them merely to s......
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East Lake Lumber Co v. East Coast Cedar Co
...to locate them, Is of course void for uncertainty, as the reservation of 5, 000 acres out of a larger body of land granted. Waugh v. Richardson, 30 N. C. 470; McCormick v. Monroe, supra; Robeson v. Lewis, 64 N. C. 734. But these questions have now become immaterial and we refer to them mere......