Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-06-22

WHERE THE BOUNDARY OF ~
GRANT FROM THE STATE IN
CLUDES OTHER LANDS THERE
TOFORE GRANTED, WHICH ARE
RESERVED. AND THE RESERVA-
TIONS CAN BE LOCATED. THE
GRANT IS GOOD AND CONVEYS
ONLY THE LAND NOT RESERV-
ED
THOUGH THE NUMBER OF ACRES
IS GREATER THAN CALLED FOR
THE GRANT IS NOT VOID.
WHEN THE STATE Is NOT INTER-
ESTED PERSONS CLAIMING UN-
DER ONE GRANT CAN BRING;
SUIT TO SET ASIDE ANOTHER
FOR THE SAME LAND.
THE ACT OF 1855, REPEATING
CODE. SECTION l245. AS TO REG
ISTRATION. DOES NOT APPLY TO
GRANTS FROM THE STATE.
This was an action of trcspass upon
land and was question of title be-
tween parties claiming under various
grants from the State. There was Il
Judgment in the lower court for plain
tiff and defendants appealed.
The court says:
Il Is also commended by defendants
Wat the Love grant IS lnVHltC-NOlu-
Tor the reason that 1t appears from the
grant that the boundary includes other
lands heretofore granted, ,and which
are excepted from the operation of that
grant. We do not think so. If the reser-
Vations had been general in their terms,
without pointing their location or re-
ferring to something by which they
could be located. the reservations
would have been void. and the grant
would have been operative rs to the
whole territory included within its
boundaries. But where the reservations
are located. or the data is given by
which they may be located. the rcsrvn-
tion Is good. and the grant is also good.
and conveys that part OF the boundary
not embraced in the reserva tons. The
fact that 1t is stated i'm the grant that
the part reserved has heretofore been
granted affords the data by which the
reservations may be located, and this
being so. both the grant and the reser-
vations are good. But, the grant being
general, the burden Is on the party
claiming the benefit of the execution
(the reservation) to locate the same; he
being supposed to be in possession of
the prior grant, II he Is the owner So,
II defendants claimed that their grants
covered territory within the rescrva-
tions contained In the Love grant, the
burden would be on them to show this.
But defendants do not claim under
grants, or titles derived from grants, for
the reserved lands mentioned in the
Love grant. They claim under q grant
to Cooper and Goodhue issued since the
Love grant. They claim that the grant
contains more land than Is called for i'm
the entries. that this is a fraud upon
the state, and " the Love grant is
void on that account. But. when the
parts reserved are deducted from the
amount named in the grant, it is found
That the acreage conveyed by the grant
1s but little more than the amount
stated to have been granted. But, IL the
amount or acres contained in the grant
amount called for in the grant. this
fact would not make the grant void.
The defendants. being interested in
the lands covered by their grants. and
the state no longer being interested in
them, have right to bring an action 70
vacate and set aside plaintiffs grant.
But this must be done by direct pro-
ceeding. and not by a collateral attacI,
upon the grant. This, 1t seems to ms.
might be done under the Code by way
OF EQUITABLE counterclaim. If all the
necessary parties were before the corr
But. If they could do this, thew have
not done so in this case The whole ~
Tort OF the defendants has been to show
that the grant to Love is void. and NOT
that 1t Is voidable. If 1t is void. it con-
veys no titie, and plaintiff has no cause
or action against defendants. But If n
IS not void. though 1t may be yoidablo
It Is good, as against defendants. until
1t ls declared void by n court having
jurisdiction to do so. While defendants
have the right to bring an action to So,
aside the grant under which plaintiff
claims title. 1t would do them no good
to bring such a suit, unless they have
grounds that would enable them to
maintain their action and to have tho
grant set aside.
Upon examination, st is found that
the act of 1885 repealed section 1915 of
the Code, and is substituted in its place
while the statute providing for the reg
istration of grants Is section 2779 Of tho
Code; thus showing that the act of 1855
mad nothing to do with the registration
OF grants from the state. Affirmed.