Ringgold's Lessee v. Malott

1 H. & J. 299

• Court: General Court of Virginia
• Decided: May 15, 1802
• Status: Published

Opinion

Chase, Ch. J.

(a). The court are of opinion, that the time when Conucocheague Manor was laid out is a matter of fact to bo determined by the jury, and that if they find it was laid out subsequent to the 28i/i of June 1731, the reserve made by the Lord Proprietary by bis order of that date does not attach to it.

The opinion of the judge of the land office, as far as it is expressed by his order, that patent should issue to Malott on his certificate, cannot conclude the parties in this case as to the fact when Conococheague Manor was laid out, or as to the fact whether there was any reserve annexed to it. 'This court in all questions relative to the extent and operation of interfering grants, have a concurrent jurisdiction with the judge of the land office — and it is the peculiar province of the jury to decide facts.

In the case between Malott and Westerberger, it does not appear to the court that the judge of the land office decided any fact by his order that patent should issue. The certificate having been corrected pursuant to the order of the late judge of the land office, and Westerberger’s caveat being withdrawn, all contest betweep Malott and Westerberger ceased, and the order for issuing a patent to Malott on his certificate was a matter of course, no other objection appearing.

The relation of the patent to the certificate, so as to overrea.ch mesne grants, is founded on a principle of equity, and is a fiction of law, introduced for the attainment of justice, and to prevent circuity of action — this court doing that which a court of equity would effect. And it is the opinion of the court, that if the jury find Conococlieagne Manor was laid out after the order of the Lord Proprietary in 1731, that in such case there was no reserve attached to it, and the defendant had a complete equitable title to the land: — But if the jury find otherwise, his attempt to take up land within the reserve, was a fraud and deception on the Proprietary and his officers, and no equitable interest was acquired in the land by his certificate and payment of the caution money.

[As between the Proprietary, and a person who takes out a common warrant, such person acquires a right to have his warrant located on any vacant land in the county, to the. surveyor of which the warrant is directed, it being the inception of the contract between the Proprietary and such person, for so much vacant land as is expressed in the warrant, and no after act of the Proprietary laying out manors or making reserves, could defeat such intercst(a).]

By the act of confiscation all British property was seized and vested in the state. The state, as to lands of the Proprietary, stood in his place, and they remained subject to all claims and rights created and acquired under the Proprietary — and supposing these circumstances to exist, which would have vested an . quitable interest in Malott, his grant will have relation to his certificate, and control the operation of the grant to Jordan so far as they interfere.

The plaintiff excepted. Verdict for the plaintiff for part only of his pretensions, (the jury being of opinion that Conococheague Manor did not exist until after the year 1731,) as to the residue the verdict was for the defendant. Judgment upon the verdict. There was no appeal to the Court of Appeals.

Duvall and Done, J. concurred.

This paragraph, though constituting a part of the opinion of the Court, was not inserted in the bill of exceptions which was signed.