Opinion
(Decided 9 November, 1898.)
Vacating Grants — Parties.
Where the State has no interest in the land an action to vacate a grant must be brought by the party in interest in his own name and at his own expense.
CIVIL ACTION to vacate a grant, heard upon demurrer by Adams, J., at March Term, 1898, of the Superior Court of PENDER County.
It appears from the pleadings that the State has no interest in the land.
Demurrer was sustained, and the case dismissed at costs of plaintiff.
Plaintiff appealed.
Zeb V. Walser, Attorney-General, and Stevens Beasley for plaintiff (appellant).
Frank McNeill for defendant.
This is a civil action brought by the State to annul and vacate a grant. It is averred in the complaint, and is admitted by the demurrer, that the State has no interest in the land. The action is brought for the benefit of another claimant. In such case, the other claimant has full relief by a direct action as authorized by The Code, sec. 2786, and should have brought it at his own cost and charges, and as required by The Code, sec. 177, requiring all actions to be brought by the party in interest. Carter v. White, 101 N.C. 30. The Code, sec. 2788, authorizing the State to bring actions to vacate and annul letters patent applies to the canceling of grants only in those cases in which, upon the cancellation, the title to the realty would revest in the State, which is thus the party in interest. S. v. Bevers, (740) 86 N.C. 588. If this were not so, parties contesting the validity of grants, alleged to be junior, could overwhelm the State with the costs of litigation in which it has no interest.
This action is not brought by the State "upon relation," in which the relator is the real party in interest, and, indeed, section 2786 of The Code does not authorize an action of that kind, but a direct proceeding in his own name by the party who conceives he has been injured by the grant he seeks to set aside.
In dismissing the action there was
No error.
Cited: Wyman v. Taylor, 124 N.C. 431; Henry v. McCoy, 131 N.C. 589.