Wadsworth v. . Cozard

AllbN, J. The defendants are not in position to attack the grant of the plaintiffs under Revisal, sec. 1748, which gives a right of action against a party holding under a grant improperly issued to the party aggrieved, “inasmuch as none can be aggrieved unless he has an interest in, the subject-matter of the obnoxious grant” (Carter v. White, 101 N. C., 34), and it appears from the record that the plaintiffs have not only admitted that the defendants are the owners of all the land covered by their grants, but also that in the judgment from which the appeal is taken it was adjudged. What interest have the defendants in having the grant of the plaintiffs declared invalid when the plaintiffs claim nothing under it as against the title of the defendants? . The language quoted from Carter v. White is approved in Henry v. McCoy, 131 N. C., 589, the Court adding in the latter ease that the purpose of the statute in permitting an attack on a grant by the party aggrieved is “to remove a cloud overshadowing a previously acquired title.” Here there is no cloud overshadowing the defendants’ title because the plaintiffs claim nothing covered by their grants. The defendants admit that the charge of his Honor as to the beginning corner is correct unless they have offered evidence of a cotemporaneous survey locating the corner otherwise than at the southeast corner of No. *17 400 and they rely on the field notes of the surveyor for the purpose of showing such survey. We do not think these notes have this effect, in the absence of other evidence showing an actual location different from .the calls in the grant. A comparison of the notes of the surveyor and the calls in the grant show that they are substantially alike except that the notes begin at the second corner in the grant instead of the first, and in one the cucumber is said to be the northeast comer of 4456 instead of 4455 in the other, and possibly the course of the last line in the notes should be read south instead of north. The same corners, the same trees, and the same courses and distances are called for in the notes and in the grant. The evidence of the two witnesses introduced by the defendants, Stuart and Burns, tend to establish certain corners, but not a cotem-poraneous survey, and when considered in connection with the notes of the survey was not sufficient to change the rule that the court must declare what are the boundaries and the jury must locate them. We have dealt with the notes of the surveyor upon the supposition that they represented a survey made about the time of issuing the grant but the dates given in the record, if correct, do not show this to be true. The date of the notes is April 11, 1856, and the grant is of date 1850 and is signed by Ellis, Governor, who did not enter upon the duties of his office until 1 January, 1859. The reference to the Declaration of Independence would indicate that the last date ought to be in 1860, No error.