Garretson v. Cole

1 H. & J. 370

Opinion

The ChaNgéiíor,

on motion of Cole’s counsel,, granted him leave to amend his last mentioned petition of the 19th of February, in any manner he thought proper. And the petition was amended, praying that the chancellor would decree the title to be vested, and issue a writ of injunction, in the nature of the habere facias possessionem, to deliver to Cole the possession of the land and premises in the decree mentioned.

Hanson, Chancellor, on the 24 th of February 1800, passed the following decree:

«‘The complainant applies, by petition, for an injunction or process of some kind, to secure him the benefit of the decree, long since passed in this court, and affirmed in the court of appeals.

The defendant, by his solicitor, insists that, not-' withstanding the said decree and affirmance, there is no foundation for any process whatever.

The nature of the present contest requires, in the chancellor’s opinion, that he should make some remarks on proceedings, in which, from mere tenderness to the defendant, he went perhaps to at least the verge of impropriety. It would seem, as if some of those proceedings were expected to be ruinous to the complainant’s cause; and contemptible indeed must b& •the jurisdiction of this court, if from its defects, a-man, in any case, is to derive no benefit from a decree, which it is authorised to make.

Although from the bill, answer and proofs, it appeared, that the defendant had merited a vacation of his patent, and that in strictness, a vacation might, and ought to be decreed, the chancellor, on deliberation conceived, that he might only decree that, which be supposed would fully relieve the complainant, without further loss to the defendant, than that relief required. He therefore decreed a conveyance by the defendant of the land in question.

To administer justice with mercy, the chancellor lias constantly considered the great duty of a judge. Every judge, on his entrance into office, should be enjoined to do this, and much is to be lamented, if the conduct of the persons to whom that mercy is intended to be shewn, shall dictate the necessity of administering strict justice, without regard to mercy. If they cannot consist with each other there is no doubt that the latter must yield to the former.

By the appeal of the defendant, the complainant had long been excluded from the benefit of the decree. The defendant was duly served with copy of it, under seal, to which was annexed a copy of the affirmance, and on proof to the satisfaction of the chancellor, of the said service, and of the defendant’s neglect, and even refusal to obey, an attachment for contempt was, at the complainant’s instance, issued against him. But the complainant, by his counsel, soon after consented to waive, or suspend, the benefit of the attachment, until the court of appeals should he applied to by the defendant at its next sitting, to reinstate the cause and decide on argument. By so doing he granted no inconsiderable indulgence to the defendant. But the defendant, disappointed in his expectation by the court of appeals, conceives that the legislature will reinstate the cause, and, on his petition to the chancellor, is absolutely discharged from the attachment, on the express proviso that another attachment, or other process, shall hereafter issue, &c. &c.

The legislature has indeed passed an act for reinstating all causes which went off the. docket of the court of appeals undecided, but has made no particular provision, relative to this cause. It is however alleged, that notwithstanding an affirmance of the chancellor’s decree in the usual way, the cause has not been decided by the judges of appeals; that they alone can determine whether or not there has been a

decision, and that this court ought not to proceed tm-til the decision.shall have been obtained.

The chancellor will not presume to assert what that decision would or may be. He cannot be absolutely certain, that that honourable body will not say, that in a case where they have affirmed tho chancellor’s decree they have not decided tho cause. But when the chancellor is applied to, as for a matter of common right, for process to enforce his decree, he is to be satisfied that there is just cause for refusing the process. He is otherwise to give his order for its issuing. The mere suggestion that the court of appeals may deckle that a cause, in which they have affirmed a decree, has gone off undecided, is hy no means, in his opinion, a reason for refusing the process.

Tiie only question,' which the chancellor has now to decide is, what is the proper process for giving the complainant the full benefit of the decree?

That another attachment might issue, the chancellor, under the circumstances of the case herein before stated, entertains not the least doubt, but it certainly is not the best process for the complainant’s purpose.

The defendant’s counsel may be right in his idea, that the decree is in law equivalent to a conveyance, and if so there is no need of compelling a conveyance, aor would a conveyance only render the complainant full justice. However the chancellor is satisfied, that the complainant was entitled to process to enforce the conveyance, and that the attachment which issued, was strictly .proper, and reasonable. For although Garretson’s deed might not be absolutely necessary for completing Cole’s legal’title, it was certainly eligible, in order that all doubts, which might he entertained by Vole and others, unlearned in the law, might be dissipated, and the opinion in favour of his title established.

Now if the defendant was really satisfied that the decree was sufficient to invest Cole with the legal title, why should he refuse to execute the tendered deed?. With what colour does he complain of the hardship to which the attachment subjected him. It is the first time perhaps that a man in such a way has dared to complain of oppression, in being required to do that, which in his own opinion was to have no opera» tion to his prejudice, and which had been directed by the adjudication of a court of justice. If there be oppression it is by the decree, and not by the complainant’s taking out under the chancellor’s order process to enforce it. Had this court decreed a vacation of the patent instead of a conveyance of part of the land it contained, there would have been no ground for this complaint.

The process or writ, which will best serve the complainant, is an injunction to deliver possession, After much deliberation on the subject, and examination of the books, it appears to the chancellor proper to be granted. Here has been a decree for vesting a legal title in the complainant by a conveyance from the defendant, whose neglect to perform the decree (even if it had not been served upon him) under the act of 1785, has rendered the decree equivalent to a conveyance.

The complainant’s title then is here established, and therefore he must be supposed in conscience aud equL ty entitled to the possession.

An injunction for possession is not a new thing in a court of equity. It has long been used in England; it is' directed in certain cases by the aforesaid act of assembly; and it would disgrace our laws and administration-óf justice, if, after a title to land has been established' by the adjudication of a court, there could be no way of obtaining possession, but after obtaining judgment in ejectment.

On the whole it is'adjudged, ordered and decreed, that the defendant Job Garretson, having neglected to execute the deed by the'‘original decree in this cause directed, the said decree 'hath operated as the said deed would have operated, to convey unto the complainant Richard Cole, and his heirs, the land-lhcreby directed to he conveyed; that the defendant Job Garretson deliver possession of the said land to the said complainant, and that an injunction issue from this court, directing the said defendant to deliver the said land to the said complainant.s>

Writ Injunction from the court of chancery to compel the defendant to deliver possession of lands to the complainant, pursuant to a decree, &c.

Injunction accordingly issued as follows, viz. “Maryland, sc. The State of Maryland to Job Garretson, of Baltimore county, and every and all other person and persons whatsoever, who are in possession of all or any part of that part of the tract or parcel of land, 1 *■ situate in the county aforesaid, called The Silent Cyphers of Africa, or The Silent Zephyrs of Africa, which is contained within the lines of a tract of land called Cole’s Discovery. Whereas it hath' been represented to the court of chancery, in a cause wherein Richard Cole is complainant, and you, the said Job Garretson, are defendant, that by the original decree in the cause passed on, &c. it was decreed that, &c. and that affidavit was afterwards made to the satisfaction of the chancellor, of the service of a copy of the said original decree, under the great seal of the state, upon you the said Garretson, and of your refusal and neglect to obey, fulfil, and perform the said decree) and that by a subsequent decree or order made in the said cause on the, &c. it was adjudged, ordered and decreed, that you the said Garretson, having neglected to execute the deed by the said original decree directed, the said decree hath.operated, as the said deed would have operated, to convey unto the said complainant, Rickard Cole, and his heirs, the land thereby directed to be conveyed, and that, you the said Garretson should deliver possession of the said land to the said complainant, and that an injunction issue against you the said Garretson, to enjoin you to deliver possession of the said land to the said complainant) and the matters stated in the said representation being all just, and true, Therefore, in consideration of the premises, you the said Job Garretson, your servants, slaves, agents, and all persons assisting you, and every and all other person or persons in possession of the said land, are strictly enjoined and commanded, that you, each and every of you, do deliver the possession of the said land and premises, and of every part and parcel thereof, to the said complainant Richard Cole, pursuant to the said decree) and that you cease from any further molesta tion of the said Richard Cole, in the quiet possession of the said land. Hereof fail not at your peril. Witness,” &c.

Writ of habere facias possessionem from the court of chancery, after a refusal by the defendant to comply with a writ of injunction requiring him to deliver possession of lands to the complainant.

On the 7th of March 1800, Cole, by his petition to the chancellor, represented, that on the 4th inst. he caused the injunction heretofore issued in this cause, for delivery of possession of the land specified in the said decree, to be served on the defendant Garretson, and on a certain T. S. a tenant in possession of part of the said land, as by the annexed affidavit appeared. That the said Garretson and T. S. both refused to comply with and obey the said injunction. He prayed that a commission or writ might issue to the sheriff of Baltimore county, to put the petitioner in possession of the said land, pursuant to the directions of the said decree and injunction, &c.

HahsoN, Chancellor,

on the loth of March 1800, ordered that a writ or commission issue as prayed.

Habere facias possessionem accordingly issued as follows, viz. “Maryland, sc. The State of Maryland to the Sheriff of Baltimore county, Greeting, Whereas by the original decree passed in the court of chancery on, &c. in a cause wherein R. C. is complainant, and J. G. is defendant, it was decreed, &c. And whereas by a subsequent decree or order, made and passed in the said cause on the, &c. it was adjudged, &c. And whereas according to the decrees aforesaid, and in conformity therewith, on the, &c„ ah injunction did issue directed to the said J. G. his servants, slaves, agents, and ail persons assisting him, and every and all other person or persons in possession of the said land, commanding that ho the said J. G. and all and every person or persons aforesaid, should deliver the possession of the said land and premises, and every part and parcel thereof, to the complainant R. C, and that ho the said J. G. should cease from any further molestation of. the said R. C. in the quiet possession of the said landr And whereas it hath been represented to the said court of chancery, that on the 4th of March instant, at the county aforesaid, a true copy of the injunction so as aforesaid issued was served on and de- livcrod, in the presence of the said complainant, to the said J. Go and at the same time the original inj únction, with the great seal appendant thereto, was shewn to the said J. CL and that the said complainant R. C. did then and there request; and demand of the said J. G. that he would deliver the possession of the land in the said writ mentioned, according’ to the directions of the said writ, which he the said J. G. absolutely refused to do; and that on the same day, and in manner aforesaid, a true copy of the said writ of injunction was also shewn and delivered to T. S« a tenant of the said J. G. and the original writ, with the great sea! as aforesaid, was also shewn to the said T. S, and that the complainant R. C. then and there made the same request and demand of the said T. S. which he then and there absolutely refused to comply with¿and the said R. C. having applied to the said court of chancery for additional process to enforce the said decrees, Know yc therefore, that to complete and carry into full effect the decrees of the said court of chan-eery, made and passed in manner aforesaid, the said court of chancery hath given, and from this time doth give to you, fall po\vcr and authority to the land and premises aforesaid, situate in Baltimore county aforesaid, and in the decrees and injunction aforesaid mentioned and expressed, you approach and enter, and from thence the said J. G. and the said T. S. as well as all and every other person or persons in possession of the premises being, against the form and effect of the decrees and injunction aforesaid, you remove, and the said R. C. in full, quiet, and peaceable possession of all and singular the premises aforesaid, immediately, and from time to time, as often as necessary, you put and place; and that the said R. C. so being put and placed in possession, you protect and keep quiet; and therefore you are hereby commanded, that immediately after the receipt of this writ, to the land and premises aforesaid you approach and enter, and the said J. G. and the said T. S. as well as all and every other person and persons in possession of the said land and premises being, against the form and effect of the decrees and injunction aforesaid, from th,e possession thereof you remove, and to the said R. C. the full, peaceable, ami quiet possession of all and singular the premises, yoxi deliver, put and place, and so from time to time as often as necessary; and the said R. C. so being put in possession, you preserve, keep and continue, and cause to be preserved, kept and continued, according to the true intent of the decrees and writ of injunction aforesaid, and of this writ. Witness,**

Ridgely, for the appellee

Footnotes

•

(a). After stating the facts, contended that the decree should be affirmed, because Garretson’s survey was illegal, contrary to the tenor of his warrant, contrary to the rules of the land office, and the patent was obtained by fraud and false, suggestion. If these facts are established, there can be no doubt of the decision being in favour of the ap-pellee. Ey the uniform practice of the land office-, and by the tenor of the warrant directed to the surveyor, the party making a survey is interdicted from ’ crossing any elder survey. If he does, so tar as such survey includes vacancy after passing through thu elder tract, it is void, or at least so on caveat, and as if no warrant had been executed thereon, and remains liable to the first applicant who regularly executes a warrant — for the words of a special warrant are these — “not running your lines within the lines of any former or more ancient surveyThe plots shew that the lands interfere, and that Garretson did run through cider surveys. [The locations on the plots were ex-plaincd'to the court.] Having established the point, that Garretson’s survey is. not one compact body, the next inquiry is, what would have been the decision of the judges of the land office on that question? The point stands in this court in the same situation as if the caveat was now trying in the land office, and tho same decision ought to take place. The judges of the land office, on hearing Cole’s caveat, would unquestionably have ruled it good and valid, so far as related to the part included by Cole’s Discovery: that part being detached and a tract, apart and distinct from the vacancy included in the first part, as the plots shew. If then Cole’s certificate would have prevailed, so far as it comprehended vacancy, on a hearing in the land office, let it be considered whether Garretson?s certificate, fortified by a patent, fraudulently obtained in the manner proved by the exhibits, will preclude the interference of a court of equity, it is a constant rule in equity, that where there is either snppressio veri or sugg~’stio falsi, the act done or procured to be done in consequence of either, shall be avoided•, and (be party making use of or benefitied by such suppression of the truth, or such suggestion of a falsehood, shall derive no advantage t herefrom in a court of equity. Let it therefore be inquired, whether Garretson hath either suppressed the truth, or suggested a falsehood, to procure his patent in the present case, and also to avoid a hearing on Cole’s certificate before the judges of the land office. By adverting to the proofs, particularly to the testimony procured from the land office, it will b8 found that Garretson, to avoid a hearing on the merits in the land office, and surreptitiously to obtain a patent, not only concealed the truth, but suggested a falsehood. He concealed from the judges that Cole lived in Baltimore county, at that very time, on the land, and also that he had got a patent; but h & falsely suggested that he Cole had left the state and gone to Juniata, a country at an immense distance off, where a summons or notice from the land office could not reach. On this false suggestion, the judges, without a hearing, and without giving Cole notice to come forward to substantiate his objections, dismissed the caveat and ordered a patent to Garretson. The point in controversy may well be reduced to this single question — Shall Gar-retson, who could not prevail against Cole on the. caveat, be permitted when he comes into á court of equity, to avail himself of a falsehood and be in a better condition on that account? Shall he stand in a more favourable light before this tribunal, where equity and justice hold and balance the scales, than he would have done if the caveat was depending in the land office? Shall a legal advantage obtained by a notorious falsehood protect him in this court? The attorney general has contended, that as the complainant paid the caution for 60 acres only he was entitled only to lay his warrant for 60 acres, which he has done, and which quantity he holds clear of Garret-son’s survey., The uniform practice of the land office has been directly the reverse. For Cole had a right under his’warrant, when located, to include as much vacant land as he pleased, and provided he paid for it in due time, and complied with the other requisites, he was entitled to a grant. That this was the course of proceeding in the land office appears from the certificate of Garretson himself; for although he only paid for 100 acres of special warrant, yet he included in his survey upwards of 600 acres. He has more than 100 acres clear of Cole’s Discovery, if that circumstance can have any weight. It is also contended by the attorney general, that Garretson’s certificate was examined and passed before Cole’s warrant was renewed the last time. This it is apprehended to bo perfectly immaterial;, for if the survey by Garretson was originally erroneous, no subsequent fraudulent act of the party himself could rectify and make it valid. It is not denied that Garretson*s survey runs into and through patented lands, because the fact will not admit of denial. But the attorney general contends, that if the fact be true it cannot be material; and that if a grant can be op.ee obtained the grantee’s title, is good to all the land which is not taken away by older surveys. This position it is admitted will prevail in a court of law. It will also obtain in a court of equity, it is supposed, against the proprietor or the state,, if the grant has been honestly and fairly obtuined, because the caution money is all the state requires. But the attorney general will never say that a grant obtained under such .circumstances as exist in the present case will stand the test of a court of equity and be adjudged to prevail against a fair purchaser such as Cole. Shall Garretson be permitted to take advantage of his own wrong? The attorney general admits that the. owners of the patented land would have good cause to caveat, but he goes further and contends, that pal eat would have issued to Garretson for the vacant land on a corrected certiiieate. This is denied — -it would have only issued jor the vacancy contiguous and adjoining together, and not for detached parcels of land in the same survey, it is also contended by the attorney general, that Cole took no step to prosecute the caveat from 22d January 1773, and that it was dismissed for want of prosecution. This was not the time cause. It was the false allegations contained in Garretson’s petition to the judges of the land office. If Garretson .really wished to have had a hearing of the caveat, why did he not summon Cole, and let the caveat he tried on the merits? The reason why he did not is evident. He well knew that at that time Cole could have proved his being the-first discoverer. — ills location with the surveyor oí Garreison’s 'making his survey through elder surveys — and also *hat no s:rant would have issued to him, inasmuch as at that lime Cole hada ¡mtent for his land. Each and every of which facts were inseparable obstacles against a grant issuing to Garretson. It seems that Garretson has denied privy to the false allegations contained in his petition to the judges of the land office. It is immaterial whether it was done by him or his agent, quifacit per alinm, facitper se. But the at« torncy general contends, that it clearly appears that Cole could not have supported his caveat. Cole is willing that the case should rest on that point. It is also contended that Garretson had done every thing entitling Imnself to a grant before Cole made his survey. This is denied, for Garretson never could have got a grant on a hearing before the judges of the land office and the land included in Cole’s survey, notwithstanding Garretson’s certificate must he considered, at the time Cole surveyed it, as vacant land liable to the first applicant. The attorney general contends, that the only circumstance which would give Cole an equity would be the prior location of his warrant, which has not been established. This is denied by the appellee, who contends, that as soon as he made his survey, although it was subsequent to Garretson’s, yet inasmuch as it was made agreeably to the rules of the land office, being in one body, and Garretson’s was not, but in detached parts, not only an equity was created, in his favour, but a right attached as fully as if Garretson had never included Cole’s survey within his lines. It has been also said, that the priority of Garretson’s location gave him a preference; this is admitted, so far as it comprehended vacancy contiguous, but not vacancy detached. And it has been contended, that although a younger survey runs through an elder, yet the paten-tee hath good title to all the land contained in his grant not included in the elder survey. The position is not admitted in the extent laid down by the attorney general. So far as the proprietary or state may have been interested, it has been acquiesced in, although the doctrine may not be tenable. But vehen such younger patent hath been obtained fraudulently — - when its legal operation would tend to defeat a fair purchaser under a regular survey, a court of equity would be established to but little purpose if it did not possess competent powers to afford relief. The cases aie frequent, and the court is referred to the case of Bowen vs. Norwoods decided by chancellor Rogers, (% Harr. & M(Hen. 201 .J The attorney general asks, for whose benefit is the prohibition of not running into elder surveys? And he answers the question to suit himself, by saying that it was intended for the benefit of the patentee only. This was not the sole reason of the prohibition — it was, that all Surveys should be inane compact body, and not in detached pieces. It was to prevent persons selecting the good spots, and leaving out the had adjoining parts. It is also contended by the attorney general, that no person has a right to caveat but the person holding the elder tract, or unless the caveator can shew he had acquired an interest in the vacancy before the survey is made which is caveat-ed. This position is not sound or tenable; for all that Is requisite for the caveator to shew is, that he had acquired a right to the■ vacancy, at the time of his caveat. This was Cole’s case. He had made a regular survey. Garget son’s survey was so incorrect and irregular, that it was as if no such survey existed. It is said, that on a caveat for running through elder surveys, the judge of the land office will not vacate the certificate, but order it to be corrected. But it should be recollected, that this caveat was not made to exclude elder tracts, but to exclude vacant land, which Garretson had no right to include, he having crossed elder tracts for that purpose, and which vacancy Cole had fairly acquired by contract. But, says the attorney general, there are a variety of patents for what are called double surveys. It is admitted there are; but if one ofthe two parts happens to be circumstanced as Cole’s survey is, no instance can be produced, that, a patent hath been ordered on a hearing by caveat. It has been said that the appellee has violated the rules of the land office as much as the appellant. This is not admitted; for his survey only comprehended one compact piece of vacancy. It does not cross elder surveys to include vacancy. The attorney general contends, that Garretson had done every thing to entitle bint to a grant. This is denied; for he did not conduct himself according to the terms of the contract with the Lord Proprietary; that is, make his survey according to the rules of the land office. The Lord Proprietary was not compellable to make the grant. It has been said, that when Cole contracted with the ..Lord Proprietary, he did it in his own wrong to defraud Garretson, with full notice. Cole knew that Garretson never contracted for vacancy which it was necessary to cross an elder survey to come at; that Garretson had made no such contract with the Proprietary; and therefore he, Cole, acted fairly and uprightly, even if he had full notice of what Garretson had done. It is contended that Garretson was guilty of ná fraud, and if he was, it cannot injure his title either at law or in equity. But would the judges of the land office have ever granted Garretson a patent or dismissed the caveat on a hearing? They certainly would not. He then obtained a grant by suggestiofalsi, which he was not entitled to. It has been contended, that Cole’s caveat, according to the instructions of the judges of the land*office, could not be in force longer than six months, unless under very special circumstances. What was the universal practice of the land office? Never to dismiss a caveat, hut on hearing or notice. Did not the appellant know, when he exhibited his petition, stating Cole to be at Juniata, that Cole’s caveat-was in force? < Why did he state its existence and assign reasons for having it dismissed without a hearing if it had previously expired? He well knew, that if the truth had been' known to the judges that Cole lived in Baltimore county, the caveat would not have been dismissed without a hearing, and consequently that he Garretson would never have got a grant for Cole’s land.

By the act of November session 1800, eh. 88, entitled, «An act to empower the judges of the court of appeals to reinstate the cause of Job Garretson against 'Richard Cole,” the judges were authorised and empowered, on motion, at their nest session, to reinstate the said cause, if in their judgment and opinion, under all the circumstances of the case, the same would tend •to do justice between the parties. Tiie preamble to the said act stated, that it was represented that the said case at June term 1799, was decided without argument, by reason of the indisposition of the appellant’s counsel, and that the decision of the said cause Involved principles of great consequence to the titles to real estate; that the court of appeals had expressed iheir regret, that the law of the last session did not authorise them to reinstate the said cause for the purpose of hearing an argument thereon, and had intimated their willingness and desire that^the same should be reinstated.

This court, in virtue of that act, at June term 1801, on motion of the appellant’s counsel, reinstated the said cause, and the same was argued by Martin, (Attorney General,) for the Appellant, and Ridgely and Harper for the Appellee.

In. the tt'ia! rof fln action of ejectment either party may avail himself* of equitable circumstances in his ca*e topreventi the relation ofst grant to the date of the certificate of survey, if sucli circumstances exist; and whether there arc suck .equitable cireum-, stances is proper' for a court of law to decido»

The Court or Appears [Mackall, Jones, Potts, and Dennis,](a) at this term reversed the decree of the court of chancery and directed the chancellor to dismiss the bill of complaint, and that each party should pay his own costs, both in the court of chancery and in this court.

The court of appeals also gave the following reasons for their reversal of the decree,

“In the argument of this cause, the doctrine of relation was fully discussed by the counsel, and seemed to be considered as making an important part of the case, and thence it may be inferred, that it may have had influence on the decision of the court.

It is therefore proper to state, that the court do not consider the doctrine of relation, as established by the courts of justice in this state, as at all involved in the question decided by this court, and neither enlarged or restricted by their decision, nor in any manner operating on the case between the parties, so far as the same was before this court as a court of equity.

In the trial of the ejectment, mentioned in the bill between the parties, in the general court, the defendant might have availed himself of any equitable circumstances in his case, to prevent the relation claimed by Garretson of his grant to the dale of his certificate, for the tract of land called The Silent Cy-inkers of Africa, if such circumstances existed. Whether there were such equitable circumstances in his case was proper for the general court to decide.

On the trial, the complainant hath attempted to establish as grounds for relief, that the rules of the land office had been violated by Garretson in executing his warrant, and that the caveat of Coleto his obtaining a grant was discharged on a false suggestion by him, and the patent obtained by fraud. On this view of the subject, we think that Cole hath not supported such a case as entitled him to the relief prayed and decreed by the chancellor.’*

Rumsey, Ch. J. absent,