Smith v. Smith ( 1827 )

Curia, per

Nott, J.

The validity of the grant is not brought into question in this case. The whole en-quiry relates to the grantée. There can be no doubt but that the title vested in Agnes Harbison if she was alive in the year 1775, and that the plaintiff was entitled to recover. So that the whole case is resolved into that single question. It is manifest that Agnes Harbison under whom the plaintiff claims died two years before this grant was issued. It could not take effect, therefore, because there was no person in esse in whom it could vest. The land still continued vacant, and might be taken up by the defendant or any other person. The verdict is therefore clearly contrary to the evidence, and a new trial must be granted.

Colcock, J. I have a doubt whether we can look beyond the grant.

New trial granted.