Hoye v. Johnston

2 Gill 291

Opinion

Magbxtder, J.,

delivered the opinion of this court.

The plaintiff in error, filed his bill in the Court of Chancery, to vacate a patent which the defendant had obtained, on the ground, that the survey on which the patent was granted, was in fraud of his, the plaintiff’s right.

These facts appear in the case. The plaintiff on the 5lh September 1839, obtained a warrant of re-survey. He made his survey on the J 9th May 1840; returned his certificate of survey on 31st July 1840; and paid the composition money on the 18th February 1841.

The defendant obtained a special warrant, 29th June 1840, (more than one month after the plaintiff’s survey of his land,) executed it on the 11th July 1840, returned his certificate of survey, and paid the composition money, 24th July 1840; and on 27th January 1841, procured his patent, and then entered a caveat, to prevent the granting of a patent to the plaintiff, on his certificate of survey. The two certificates of survey include the same land. As the defendant had obtained a patent for land, comprehended in the plaintiff’s certificate, as vacant land, no patent, according to the rules of the land office, can be given to the plaintiff until the defendant’s patent is vacated.

One of the grounds of objection, to the relief asked, is, that the plaintiff was not seized of the tract of land, on which he obtained his warrant of re-survey. It appears, however, that the tract of land called Flavia, which was to be re-surveyed, was granted to the plaintiff himself, 7th September 1838; and that the land in controversy, was contiguous to that tract The objection is, that this same parcel of land, had been previously granted to James Swann. The plaintiff’s counsel insists, that it has been adjudged, that the alleged grant to Swann, must yield to the patent for Flavia; and the answer given to this, is, that the adjudication no where is to be found in this record; and from that adjudication, the plaintiff in error can derive no advantage. This will not be controverted; but then, the record furnishes no evidence, that the land claimed for Swann was an older tract than that of the complainant. It would be difficult for the court to discover, by an inspection of this record, that the plaintiff, at the time that he obtained his warrant of re-survey, was not seized of the tract called Flavia, and for which he, himself, had obtained a patent.

In addition to this, it may be remarked, that the plaintiff had made his survey before the defendant had obtained his special warrant. In the case of Hammond vs. Morris, the general court determined, that although a person, who has not a title to the land on which he obtains a warrant of re-survey, cannot thereby claim a right of pre-emption; in all contiguous vacancy, yet, such a warrant will operate as a common warrant. See 2nd Harr. 8f John. 141. And the plaintiff’s certificate of survey, being older than the defendant’s special warrant, then, upon the payment of the composition money, the title to the land commences from the date of the survey; provided, the composition money was paid by the plaintiff, within the time required by law.

The question then arises, was the composition money paid by Hoye in due time?

He made his survey, 19th May 1840; and paid the composition money 1st February 1841. If-the land had been situate in other parts of the State, it would not have been paid, within the time required. But the warrant ol re-survey was obtained on a tract of land in Allegany, and in that county all the vacancy, also, is situated.' Whether, then, Hoye paid the money, within the time required by law, is to be decided by the act of 1822, ch. 128, sect. 3. This act declares all certificates of survey to be null and void, “which shall not fee compounded upon, within twelve months from the date of such certificate.” If this law was now, for the first time, to receive its interpretation, it would seem to be clear, that the owner of the certificate of survey, by the payment of the composition money, at any time within twelve months after the date of his certificate, would be entitled to all the rights which he might have secured to himself, by the payment of it on the day of its date. Such is the construction it has received ever since its enactment, and now, none other ought to be given to it. The composition money was paid by Hoye, 'within ten months after the date of the certificate.

It is concluded, then, that the plaintiff in error has a right to impeach the defendant’s survey and grant; and is entitled to relief, if he has established the fraud, and asked relief in the proper form: was there any fraud practised by the defendant in the execution of his warrant, the survey of the land, the return of the certificate of survey, and obtaining the patent, by which the plaintiff in error is prevented from obtaining the patent to which he is entitled?

On the 29th June 1840, the defendant obtained a special warrant, and by the express terms of that warrant, he had authority to survey, in order to purchase the vacancy of which he gave a description; provided, that in making that survey, he did not run his lines “-within the lines of any former or more ancient survey.” This he was evidently forbidden to do; and to prevent unintentional violations of this, the second of the rules, adopted by the Governor and Council in 1782, and which from time immemorial had been a rule of the land office, was adopted. See the rule in Landholders Assistant, p.435; and opportunity was thereby afforded to the defendant to know, and he is presumed to know, that before he obtained his warrant, another warrant, whether in name a general, or special warrant, had actually been located; and this land, now in dispute, had been included in a survey by another person. Besides being presumed to know this, his answer admits, that he had actual notice of it, and with a knowledge of it, he actually prevailed upon the surveyor, to violate the instructions under which he was acting, and to represent to other officers of the State, who were to judge of the fairness and regularity of his proceedings, that in executing his warrant, he had conformed to the rules of the office; and by these misrepresentations the defendant so obtained the patent, which now enables him to deprive his antagonist of a grant, to which he is entitled. It is^easily to be accounted for, that the officers of the land office, especially in earlier days, were not over-anxious for a rigid observance of the rules of office; or as a former Chancellor of Maryland observed, determined “merely with reference to the interests of the State, or perhaps its officers.” The lord propriatory, first, and then the State, had land to dispose of; and if the vendee paid the price asked, for every acre, to which his grant gave him a title, the vendor was no gainer by a rigid observance of these rules. Still, it was the duty of all to take notice, and not to violate those laws; and more especially, not by acting fraudulently themselves, to obtain an unconscientious advantage of others. Some, who take up lands in Maryland, seem to think, that there is scarcely any regulation of the office, which men, dealing for land, are bound to observe; except that which requires a man to be seized of the tract of land, upon which he applies for a warrant of resurvey; and accordingly, this defendant, who claims a right to urge this, as an objection to a grant being issued to the plaintiff, claims it, because of violations by himself of many of the regulations of the office; whereby, the officers were deceived, and the plaintiff is defrauded.

If indeed, such objections, as it may be presumed that the defendant would urge, in opposition to the claim of the plaintiff to a grant, had been established by proof, in the case, it would not be necessary for the court to inquire minutely into the actings and doings, and the motives for those actings and doings of the defendant; but as, in his efforts to destroy the plaintiff’s equity, he has been so unsuccessful, it can no longer be controverted, that this whole proceeding on the part of the defendant, was in fraud of the law; and that, of the frauds practised, in order to obtain a patent to himself, and then, by the aid of that patent, to prevent the plaintiff from obtaining one, the latter has just cause to complain and to ask relief therefrom.

But, then it is contended, that although the defendant may have obtained his patent by fraud, and although the plaintiff in error, may be entitled to the relief which he seeks, yet, in this case, he cannot obtain it; and this, because the State has not been made a party, (either complainant or defendant,) to the suit. The counsel in the course of their argument, have furnished us with some cases like this, in which relief was given, although the State was not made a party to the bill of complaint.

We are told, that “the non-joinder of a mere nominal or formal party, will often be dispensed with, if entire justice can be done without him; or if he cannot, properly, be made a party to the suit.” Story's Equity Pleading 196. No person should be made a party who has no interest in the suit, and against whom, if brought to a hearing, no decree can be had. Now, it would be difficult to prove, that the State has any interest in the decree, which may with propriety be passed in this case. The State, moreover, is not bound to be a party complaining; and has taken care to let it be known, that she does not choose to be a defendant in her own courts. It is not necessary that she should be a party; it should not rest with the State, or any department of its government, to say, whether one of her citizens, really aggrieved by another citizen, shall have justice administered to him. We have then precedent and rule to warrant the decision, that although the State is no party to the bill, ample relief may be had.

We therefore reverse the decree of Chancery, with costs in both courts, and decree, that the said Johnston shall convey to Hoye, in fee simple, all the land included in his patent, dated the 27th January 1841, for a tract called “ Fort Meigs."

DECREE REVERSED AND CAUSE REMANDED.