APRIL, 1810. act; and secondly, because the judicial department would not be distinct, if it could mingle with the executive to repeal a grant from the governor. But repealing, and Alexander adjudging void, are different acts, with different effects. If a scire facias could issue, there would be no benefit, or policy in requiring it; being a tedious and expensive remedy, and coming after the evil has had its effect. For, if Greenup recovers, a scire facias and repeal of the grant will not restore possession to Alexander. V. Greenup. Any other illegal act of the executive, or of the register, can be inquired into collaterally. Why not, therefore, this? Even an act of the Legislature may be so adjudged void, on the ground of its being unauthorized by the constitution. Why then should not a patent be avoided on the ground of its being contrary to law. One of the cases fit for scire facias is where a junior patent issues for the same thing.(a) (a) 6 Bac. Yet every day's practice is to declare the junior patent void, incidentally.(6) So, in England, if a patent authorize a (b) Haywoo nuisance, the nuisance is subject to prosecution, before the 128. 375. 497. repeal.(c) 3. If the patent was evidence that the title of Monkhouse was extinct, it was not conclusive evidence; for, at any rate, a judgment in favour of Monkhouse upon an inquisition of escheat would have falsified the recital. Neither was it legal evidence of that fact, which ought to have been shewn by the verdict of a Jury, upon such inquest. 4. The diversity of opinion between the Judges in the District Court did not take away the erroneous instruction by one of the Judges. On the other side, in answer to the first point, it was said that the whole argument was founded on a mistake. These were not lands escheated to the Commonwealth, but to Lord Fairfax. If he allowed them to be treated as waste and unappropriated lands, the Commonwealth had no right to claim any thing more. The act of 1785 conveyed a VOL. F. 111. Rep. (N. C.) (c) 6 Bac. 111. APRIL, 1810. complete title to all persons claiming under Lord Fairfax. The entry was made in his office, and must be presumed Alexander lawful at the time. The patent having been granted, Greenup. every circumstance to give it validity ought to be presumed. A man, claiming title under the Commonwealth, and producing a grant, is not bound to go farther back, and shew his entry and survey. It has been decided, again and again, that Lord Fairfax had a right to lay down regulations for his office. He might have had one rule as to lands which had been cultivated and improved, and another as to lands which never had been cultivated. The land here might have been waste and unappropriated; for it does not follow, from its having escheated from Monkhouse, that he had ever occupied it; or that the legal title had ever been vested in him: he might have had a merely inchoate right, as an entry, or survey; and such right might have escheated. But, though not waste, the land might have been unappropriated; and that is sufficient; for, though the word waste is mentioned in the preamble to the 4th section of the act of 1785, c. 67. it is dropped in the enacting clause, which speaks of unappropriated lands only; and, according to 6 Bac. 381. words in a preamble are not necessarily to be extended to the enacting clause. The word “unappro priated," applied to all lands not specifically appropriated to the use of Lord Fairfax; as is evident from the act of (a) 2 Rev. compromise, passed December 10th, 1796; (a) and all the Code, App laws on this subject are to be taken together, so as to ex(71) (72.) No. V. p. (b) Pickett v. pound one of them by another.(6) Dowdull, 2 What law prohibited Lord Fairfax from granting out Wash. 106. ru v. Burns, Ibid. 121. Johnson v. lands that had before been granted, if escheated? The Buffington, 16.116. Cur- Commonwealth had no right; because the title was acquired from him. If a grant, then, from him would have been good, merely on payment of the ancient composition money, (if he chose to accept that as full satisfaction for the escheated land.) why should not a grant from the Commonwealth be equally good? By the entry with Lord Fairfax, the ap pellee obtained an inchoate right, and was entitled to perfect 33. APRIL, 1810. V. Alexander (a) Ch. Rev. p. 180. The appellee, in this case, has the right of the Common- (b) Ch. Rev. wealth, and of Lord Fairfax also. What preferable title can there be in the appellant? Argument in reply. The plaintiff in ejectment is bound to make out a complete title; which has not been done in this case. It is said that the patent, of itself, proves his title. But we say, he should have shewn more than the mere exercise of power. The right in 1778 was in Lord Fairfax. It should have been shewn in what manner it travelled from him to the Commonwealth. Where the act of 1785 authorizes a grant of Lord Fairfax's land, it must be on a survey made and "returned into the late proprietor's office."(c) The case of Pickett v. Dowdall,(d) shews (c) Act of that the Lord Proprietor made a variety of regulations in 4. his office, differing from those in the land-office of Vir. (d) 2 Wash. ginia. Among others, there was one, that, if no survey was made in six months after an entry, the benefit of the entry was forfeited. Yet nothing is said in this patent about a survey; an entry only is mentioned. Why did the law require the grants to be on surveys returned to the proprietor's office? Certainly, that it might be shewn whether the order had been renewed by the proprietor. What could not have been set up as a demand against Lord Fairfax cannot be a just title under the Commonwealth. In this case, the entry had run out when the Commonwealth came to operate upon this land; for the survey was seven years after the proprietor's death. A patent is never good without reciting the consideration for which it issues. The act of Assembly expressly 106. APRIL, 18:0. V. requires this; that all who look at a patent may judge of its original validity. But, here, the recital was altogether Alexander defective. It did not state that any inquest of office had determined the land to have escheated; nor that it was sold as escheated land; so as to give a title to a purchaser. Greenup. Under the regal government, would any man have said the King could grant escheated land without an inquest of office? There was an escheator who held his inquests in every County. The governor gave a preference to the person applying for an escheat warrant: but every patent recited the inquisition and proceedings thereupon. This was a great security to the rights of the citizens; that their freeholds were not to be taken away but by verdict. Was there any difference between the Northern Neck and the other parts of Virginia? This charter, which infringed the rights of the people, and sprang from nothing but an intrigue, ought not (above all others) to be favoured. Would the people of the Northern Neck have permitted the proprietor to seize their lands without an inquest? Would they yield that their rights should be different from those of the rest of the people? In this case, the defendant, if he could have shewn himself the heir of Monkhouse, might have defeated the plaintiff. An heir may bring ejectment against a person holding by an escheat patent. Yet the Court instructed the Jury that the title under the patent was conclusive, unless the defendant could shew a title paramount to that of Monkhouse! Curia adv. vult. Saturday, June 2. The Judges delivered their opi nions. Judge ROANE, after stating the case. With respect to the general question in this case, I take it to be clear that although a patent, perfect on its face, is only to be vacated for matter dehors the patent, by a proper and regular proceed Judge TUCKER, having been one of the Judges in the District Court, did not sit in this cause here. ing, yet that a patent may carry on its face intrinsic evidence of its own nullity, and be considered void, when exhibited in the progress of a trial. I will put the case of a patent obtained "for land now holden in fee by A.," or "for escheated land," (at this day under the Commonwealth,) in the ordinary way, as if it were waste and unappropriated land: in either case, it does not want extraneous evidence to shew, that the Commonwealth has been deceived in its grant, or rather has granted that which was not grantable at all in the first case, or, in the second, in that mode, or for that consideration, which the law of the country justifies. The recognition of a principle going to defeat patents perfect as upon the face thereof, on the ground of extraneous and latent defects, by a regular proceeding, does not conflict with another principle, that a patent which is defective per se, is to be held void, in the first instance. In the case before us, admitting for the present, that the act of 1785 applies, for the purpose of perfecting entries for escheated land made in the time of Lord Fairfax; the question is, whether this patent is not void, as on its face; 1st. On the ground that it does not state that the escheat preceded the entry; and, 2dly. That it does not state that the escheat was regularly made by an inquisition. This last question is important; and I shall not now decide it, as there are other and plainer grounds on which I hold the judgment of the District Court to be evidently erroneous. On the one hand, it may be argued that the officers of the Commonwealth should be intended to have granted the patent on the proper documents only; and, on the other, it is a principle of our law, certainly not to be relaxed in favour of a Lord Proprietor, and greatly for the liberty of the subject, that the King cannot enter upon the lands of a subject upon mere surmises, nor without the solemn inquisition of a Jury. As to the 1st objection, it is only stated that the land escheated from Jonathan Monkhouse, deceased. There is nothing in the patent to shew that this escheat happened APRIL, 1810. Alexander V. Greenup. |