His Honor being of opinion for the defendant, judgment was entered accordingly, and the plaintiff appealed. This was a petition and scire facias to vacate a grant. The defendant made two objections wherefore his patent should not be vacated. First, that the plaintiff's grantor had been disseised, and was out of possession, when he made the deed to the plaintiff, so that nothing was purchased but achose in action. Secondly, that the right of entry of *Page 406 those under whom the plaintiff claimed was taken away by seven years continued adverse possession.
The first objection is good in law. The person who conveyed to the plaintiff had been, and continued disseised in March 1830, the date of the conveyance to the plaintiffs. By the common law a choose in action (except in the case of the King) cannot be assigned or granted over (Lampet's case 10 Rep. 48 a; 2 Ves. 181) and the reason of the laws not allowing such was, because it tended to champerty and maintenance, and to pass debts, and pretended titles into the hands of more powerful men, who were then able to oppress (496) the inferior orders. (2 Thomas' Coke 113.) It is an established maxim of the common law that no possibility, right, title or any other thing that was not in possession, or vested in right could be granted or assigned to strangers. (Ib. 456.) No right entry or re-entry can be assigned, so that if a person be disseised, and assigns over his right to another before he has entered on the disseisor, such assignment is void. (Ib. 566, note S. Winch v. Keeley, 1 T. R., 619. Innes v. Dunlop, 8 T. R., 595.)
In the second place the plaintiff's grantor being disseised, and his right of entry taken away by the act of 1715 (Rev. ch. 2, sec. 3) he could not, in our opinion have maintained a scire facias to vacate the defendant's grant, because he could not be considered such a personaggrieved, as comes within the meaning of the tenth section of the act of 1798 (Taylor's Rev. p. 193), establishing a court of patents. Seven years continued adverse possession by the defendant, under his junior grant (which would be color of title) would have taken away the right of entry, and barred the plaintiff in an action of ejectment. The action of ejectment is not mentioned eo nomine, in the act of limitation; but that act declares when a right of entry shall be taken away by reason of an adverse possession, accompaniew [accompanied] by efflux of time. The right of entry of the plaintiff, and those under whom he claims, is clearly taken away in this case by virtue of the statute; then what benefit would he derive by vacating the defendant's patent? The Court could not in this species of action, order the possession to be surrendered, the plaintiff, would still be driven to his proper action for the land, where he must be defeated by reason of the seven years adverse possession of the defendant under his junior grant. To sustain this proceeding at the instance of the petitioner, it is indispensable that he should be aggrieved by the patent which he prays to be vacated. No person can be thereby aggrieved, but he who has an *Page 407 interest in the subject matter of it. If it appears that the petitioner never had such interest, or if he once had it, that the same has been utterly extinguished or barred, he is then an officious intermeddler with what concerns him not, has no right to be protected, and no grievance to be (497) redressed.
This decision is not in conflict with McRee v. Alexander, 10 N.C. 322, which we understand to rest upon the point that a petition filed at the instance of several relators, may be maintained, although one of the relators be barred of all right to the land by the act of limitations. We feel ourselves bound by that decision, and shall steadily adhere to it.
PER CURIAM. Judgment affirmed.
Cited: Miller v. Twitty, 20 N.C. 10; Hoyt v. Rich, Ib., 677; Hollandv. Crow, 34 N.C. 280.