Lyne v. Jackson

1 Va. 114, 1 Rand. 114

Opinion

Judge Brooke,

delivered the opinion of the court:

Footnotes

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The court is of opinion, that the appellants properly came into a court of chancery for the relief prayed in the original bill, against the representatives of Hezekiah Davisson, and also for the relief sought by the supplemental bill against James Wilson and Daniel Davisson, and that the register of the land office was a proper party in both cases, to effectuate the relief to be decreed them. The object of the original bill was, to prevent the issuing of a patent by the register on the survey of the lands in controversy, or an assignment thereof by the representatives of the said Davisson ,• and of the supplemental bill, to prevent Wilson or those who might claim under him, from getting a patent for the same land, before the controversy between the parties to the first bill, was adjusted. The decree of the chancellor dismissing both bills for want of jurisdiction is therefore reversed, and the court, proceeding to render such decree as the chancellor ought to have made, is of opinion, that the assignments of the warrant by H. Davisson to himself was not authorised by the agreement with Lyne, in the proceedings mentioned, nor had he a right to survey the land in his own name, on the entry made by virtue of that warrant. The court is further of opinion, that the appellees Wilson and Daniel Davisson are to be considered as having notice of the rights of Lyne from the filing of the original bill, and probably on the facts in the case, had express notice thereof: that these rights are to be affected by that notice, and must yield to the claims of the appellants. It is therefore decreed and ordered, that upon the appellants P'^duci'ií» to the register of the land-office a copy of the survey made on the 14th day of August 1785, in the name of the said Davisson, he make out or cause to be executed to them a patent in due form of law, for the land comprehended within the lines of the said survey, to be held by the said appellants, subject to the just claims of the representatives of the said Davisson to any part thereof under the said contract; and liberty is reserved to them to resort to the court of chancery for a full and final settlement of all accounts and claims under the said contract. And it is further decreed and ordered, that the appellees Wilson and Daniel Davisson and the register, be perpetually injoined from taking out or issuing any patent on the survey in the name of the said Wilson, dated on the 10th day of September, 1815.

Judge Roane absent from continued indisposition.