Person's Heirs v. Davey

5 N.C. 115

• Court: Supreme Court of North Carolina
• Decided: June 5, 1806
• Status: Published

Opinion

Locke — -Judge,

delivered the opinion of the court. Upon the trial of a caveat, the question is not, which of the parties has the better grant or title, but simply which has tho best equitable right to obtain a grant. It is the peculiar province of the jury to determine this question from all the facts disclosed to them on the trial. The verdict of the jury therefore, saying, that the defendant Davey is entitled to a grant cannot impair or destroy the grant of Person’s already obtained-; and if his grant be valid in law, his heirs will be able to secure the land in dispute. The court therefore think that on this ground a new trial ought not to be granted: but that Davey should be permitted to obtain bis grant and the parties be left at liberty to determine the validity of their respective grants by a trial in an ejectment or jn guch other mode as they may choose»- The second reason assigned for a new trial is insufficient, as the fact (Its-closed in the affidavit was known before the trial of tho caveat and the proof of that fact omitted to be introduced thro5 the negligence of the caveators. Let the rule for a new tri-al be discharged.: