#### JAMES HOLLAND’S HEIRS *vs.*JOHN CROW *&*AL.

On a petition to vacate a junior grant by moro 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 caso 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.

*276This 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 entiy 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 sáme, 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 de* fendants 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, *277being surveyor, surveyed for himself, and then transfered to Holland, and because of other defects assigned: The answers then deny, “ that Grow procured his grant with aN 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 *278that 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 disputeand 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 ii 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 evidence to be left to the jury of the identity of John Crow,' of whom the witness spoke, with J ohn Crow, the patentee, and prayed the Court so to instruct the jury. But the Court was of opinion to the contrary, and left the evidence to the jury with directions, that they were to judge of its weight.

The relators also produced in evidence the deposition of Thomas Love, who, being asked to state, who are the heirs of James Holland, Sen’r., replied : “I was acquainted with James Holland deceased in his life time, and from reputation I understand that Cynthia Booker and Selina Solphia Perkins are the only daughters, and Sarah Ann, Mary L. ahd Cynthia Holland, children and heirs at law of James Holland, Jun’r. deceased, (whose guardian is Alcalem Thompson) are, as I am informed and verily believe, the only heirs at law, who have claim to Holland’s Old Field tract, in Haywood County, North Carolina;” and the witness further stated, that he had once been the agent of all those persons to attend to these lands and to have this suit instituted for them. On the part of the defendants it was objected; that the testimony of the witness did not tend to prove Jhát Sarah Ann,-Mary L. and Cynthia.Holland were some *279of the heirs at law of Jamea Holland, the patentee, for want of evidence of the relationship, ifany, between him, the paten - tee, and James Holland the younger; and of that opinion was the Court, and soinstructed the jury, who found accordingly. Thereupon the other relators moved the Court for judgment, that the grant to Crow be vacated and for their costs against the defendants. That was opposed by the defendants: 1st, because of the variance between the petition and the *scire facias*in stating the persons who were the heirs of the patentee, Holland : 2ndly, because three of the'persons, who were stated in the *scire facias*to be some of ihe heirs at law of James Holland the elder, are found' not to be his heirs : and thirdly, because the relators offered no evidence that the defendants had disturbed or in any manner interfered with the relators' possession of the land granted to James Holland; and upon those grounds the Court refused the motion of the plaintiffs and gave judgment for the defendants, and those relators appealed.

No counsel for the plaintiffs.

*Bynum, N. W. Woodfin*and *Baxter,*for the defendants.

Ruffin, C. J.

The Court is inclined to the opinion, that the testimony of Love, though not as definite and predis# as it-might and ought to have been, is so expressed as to render it probable, that the witness meant to depose, that the patentee left the two daughters named in the deposition, and also a son, James Holland, Junior, who afterwards died leaving the three infant children, who are the other relators ; and that they and their two Aunts were, therefore, believed by the witness to be the heirs of the elder James Holland, deceasecT. That seems to have been so probably the meaning of the witness, as to have rendered it proper to leave the evidence to the jury for their inference upon that point. But it is not requisite to decide that question, since;, if held to be for the appellants, it would entitle them only *280to *& venire de novo*/ whereas they were entitled in law toa judgment vacating the grant upon the verdict as it stands, and supposing it right in respect of the finding as to the heirs of the elder Holland. The judgment rendered on the scire *facias*was in behalf of the átate ; and it was held in *McRee*v. *Alexander*3 Hawks 322, that where the *scire facias*was awarded at the instance of three relators, of whom one only had any existing title to the premises, the misjoinder was yet no bar to the judgment vacating the grant, and that judgment was given. Afterwards in ejectment upon the demises of the three, there was judgment against the defendant for the one third in favor of one of the lessors of the plantiff and in the defendant’s favor as to the other two thirds, because those two lessors had been barred by the statute of limitations Operating on the de-’ fendant’s possession for more than seven years under the vacated grant. *McRee*v. *Alexander,*1 Dev. 321. In *Moyle*v. *Logan,*4 Dev. 495, the first case of *McRee*v. *Alexander*is mentioned as establishing, that a suit at the instance of several relators may be maintained upon the right of one of them alone, and the determination of the Court expressed to adhere to the decision. Those authorities are conclusive, that there ought to be judgment vacating the grant *non obstante veredicto,*unless there be other grounds for refusing it. Several are alleged; but they appear *to*the Court to'be all insufficient. The variance between the relators in the petition and the *scire facias*is cured by the order for amendment. It is true, the amendment was not actually made. But the *scire facias*was issued upon the assumption oí the amendment, and all the subsequent proceedings were based upon the supposition, that one was as properly a relator as the other; and in such case the course is to consider the order as standing for the amendment itself» *Ufford*v. *Lucas,*2 Hawks 214.

It is contended further for the defendants, that there ■ought not to be judgment against them, because there ivas *281error in leaving the ease to the jury upon insufficient evidence as to the knowledge of Crow, the patentee, of the previous grant to Holland, at the time he made his entry. But the Court thinks the evidence was competent, and that its sufficiency depended on the conviction it produced in the minds of the jury, that the John Crow, of whom the witness spoke, was or was not the same person, who by that name obtained the patent. Under the circumstances, the evidence was not only competent, but in the judgment of most persons would be deemed sufficient. There was no suggestion, that there were about that period two persons of that name in that part of the country — .much less that the Holland Old Fields had been entered by more than one of them. Besides, the knowledge by the patentee, Crow, of Holland’s grant, when he made his own entry, is. but a reasonable inference from that part of the answer, in which the defendants insist, that Crow did not procure his grant with a knowledge, that the land was not subject to. entry, not because he was not aware that Holland had entered it and got his grant, but because Holland’s entry and grant were void for certain reasons assigned, and, for that, reason, the land was vacant and unappropriated. The facts were, therefore, properly left to the jury on that issue.

The answers also refute- in point of fact, the last objection of the defendants — that the grant to Crow did not aggrieve the relators, as it had caused them no disturbance. For, the defendants state explicitly, that under the grant ta Crow, some of them had at different times, during nearly the whole period from 1820, disputed the title under Holland’s, grant and been in litigation in some form with the tenants of the relators for the possession of the land. Indeed, if that were not the fact, the relators would have a right to. this remedy ; since the subsequent grant is *per se*a cloud upon the owner’s title, and, so, a grievance to him; *Hoyt*v *Rich,*4 Dev. 533. As to imputations in the answers *282against the grant to Holland, upon which it is alleged to be void, it is to be remarked, that these parties, claiming under a junior patent, cannot even impeach it directly, and much less can they do it in this collateral manner; *Crow*v *Holland,*4 Dev. 417. Besides, those matters, though stated in the answers, are not pleaded to the *scire facias.*Therefore, the judgment must be reversed, and a judgment given accoi’ding to the statute, that the grant be repealed and va■cated, and for costs-against the defendants.

Per Curiam. . Judgment accordingly.