Opinion
December Term, 1827.
From Burke.
It is fraudulent in law for the grantee to survey his own entry. Therefore, when this fact was found by the jury, and further that the survey was fairly made, it was held that the grant must be vacated.
THIS was a petition to vacate a grant. From the petition it appeared that the grant to the ancestor of the defendants issued in November, 1802; that in July, 1820, a grant for a part of the same land issued to the plaintiff. The petition charged that William Tate, the grantee in the first grant, surveyed and located his warrant of survey himself.
Attorney-General and Devereux for the plaintiff.
Wilson contra.
From the petition and answer the following issues were made up and submitted to a jury:
1. Was the land surveyed according to law, and were the chain carriers sworn?
2. Did William Tate, enterer and grantee, survey for himself?
(301) 3. Did William Tate lay before the county surveyor the survey made by him, and was the same ratified and signed by the county surveyor?
4. Was there any fraud in surveying the land or in obtaining the grant which issued to William Tate?
The jury being instructed by his Honor, Judge Strange, that it was not fraudulent per se for the grantee to survey his own entry, found:
1. That the land was surveyed according to law, and that the chain carriers were sworn.
2. That William Tate, enterer and grantee, surveyed for himself.
3. That William Tate did lay before the county surveyor the survey made by him, and that the same was ratified and signed by the county surveyor.
4. That there was no fraud in surveying the land or in obtaining the grant which issued to William Tate.
Upon this verdict judgment was rendered for the defendants, from which the plaintiffs appealed.
The question in this case lies within narrow limits. It turns upon the fact that the land in controversy was surveyed by the ancestor of the defendants, who entered it, and to whom a grant issued.
The principle which must decide this case against the defendants was established in Avery v. Walker. It is there established that no deputy surveyor shall be permitted to survey land for himself, and to that case I refer, instead of repeating the reasons there given in support of this position. The grant must be vacated.
PER CURIAM. Judgment reversed, and judgment for the plaintiff.
Approved: Crow v. Howland, 15 N.C. 417.