#### Terrell *v.*Manney.

From Rutherford

In proceedings by *sci. fa.*under the act of 1798, to vacate a grant, an *innocent purchaser*from the original grantee (the grant being void) is not protected : the act subjects to the operation of its provi. sions, any “ person claiming under the grant,” and the Court can make no saving for the benefit of innocent purchasers.

Entries made by entry takers, otherwise than the act directs are *void.*

There is no limitation prescribed by the act ; the 9th section gives the Court jurisdiction and cognizance of *all*grants made since the 4th of July 1776, by which it would seem, that the legislature intended to exclude the operation of time.

*Petition to vacate a grant.*— Petitioner set forth that he made ail entry in the entry taker’s office of Rutherford, and obtained a grant from the state, on said entry, for a tract of land in Rutherford county — that his entry was made March 26, 1801, and his grant bore date 12th of August, 1805, and was duly registered; that David Miller, who was now dead, being entry taker, had before made an entry in his own office, in his own name, for *376the same tract of land or a part thereof, without having’ done so before a Justice of the Peace for the county, and without any return having been made by any Justice of {¡,c Peace, of such entry, to the next County Court as the law required ; that in fact no entry ever was made on the records of Rutherford County Court, or on the books of said Miller as entry taker, shewing that the entry of Miller was there inserted by order of the Court; that by false suggestions, Miller had obtained a grant from the state for the land ; that one Peter Manney was now in possession of the land or part thereof, under Miller’s entry and grant, with full knowledge of all the facts connected with Miller’s entry and grant; and petitioner prayed for a *sci.fa.*to Manney, to shew cause why Miller’s grant should not be vacated.

Manney pleaded that he had no knowledge of any irregularity in Miller’s obtaining the grants that he was a *bona fide,*purchaser for valuable consideration, without notice; that he and those under whom he claimed, had been in possession more than twenty-one years under colourable title; that he had been in possession seven years, and that during that time, petitioner had made no entry; that he was in possession of 50 acres only of the land now claimed, by virtue of the grant to Miller ; and lastly, that petitioner hath not title to the *zvhole tract*covered by Miller’s grant, issue was taken on all the pleas but the last, to that, there was a demurrer and joinder.

Upon the issues submitted to them, a jury, found, that ■ David Miller, made his entry contrary to law as charged in the petition, and under such entry obtained his grant; that Manney at the time of receiving a deed of conveyance for the land, had no notice, and was ignorant of any thing unlawful or irregular in Miller’s entry or grant; that he purchased of Miller for a full and valuable consideration which he paid; that Manney and those under whom he claimed, had not been in possession twen. *377ty-one *years;*but that Manney had been in the uninterrupted, adverse possession of the land for seven years and more, before the filing of the *petition;*that the title of the petitioner did not extend to *all*the land covered by Miller’s grant, but to part thereof, including all of Miller’s grant which Manney claimed.

Upon this finding, the Court ordered the case to be transmitted to this Court for its decision.

Sbaweii, Judge,

delivered the opinion of the Court:

We have carefully examined the act of 1798,establish-ing a Court of Patents, in the hope we might be able to satisfy ourselves, that we are at liberty to determine this case upon principles of equity but the result is, that we find it impossible to do so, without a departure from the *obvious*meaning of the Legislature. The present proceedings are under that act, and besides the generality of the expressions used, the *scire facias*is directed to be awarded against the grantee, or patentee, the *owner,*or *person claiming under such grant;*and the act in substance declares, that if any grant shall appear upon verdict, or demurrer, to have been *made against law,*the Court shall vacate it: for us then to hold that the act did not extend to the case of an innocent purchaser, would be like adding a saving to the act of limitations. The Legislature, in its enumeration of cases, has mentioned precisely that in which the Defendant is placed; viz: a person claiming under the grant; and there is nothing from which it can be collected that he was to be more favoured than a purchaser with notice. This act, in its operation, must be construed like the act declaring gaming bonds void, by which, as the Legislature ias made no savings, all gaming bonds into whatever bands they may come, are absolutely void.

Then as to the other part of the case, whether this jrant was made against law, we think there cam be no loubt. The act of 1777, pointed out in what manner *378grants should be obtained ,* and in the case of entry-takers, directs that they shall enter lands before a Justice o the Peace, to be returned to the County Court, and then ¿eciarog that entries by entry-takers made otherwise shall bo void, and liable to the entry of any other person. Miller, the grantee, *was*an entry-taker, and obtained this grant in defiance of the law, his grant therefore was against law. Any other construction .would be to render inefficient the principal object of the Legislature, which was to vacate the many grants that had been made, upon illegal entries, and illegal warrants. This act was passed immediately after the discovery of the improper practices that had prevailed in the several land offices, and from its scope, seems to comprehend every possible case.

As to the act of limitations, there is no limitation prescribed by the act, and the 9th section gives the Court jurisdiction and cognizance of *all*grants made since the 4th of July 1776, by which it would seem, that it was the intention of the Legislature to exclude the operation of length of time. But if the acts of limitation did apply, there was not twenty years before the petitioner’s grant to bar the State; nor seven years afterwards, before the filing of this petition, to bar the petitioner. So that in no event, can the Defendant be aided. There must therefore be judgment for the petitioner that the grant be vacated.