Witherinton v. M'Donald

1 Va. 306

• Court: Supreme Court of Virginia
• Decided: June 10, 1807
• Status: Published

Opinion

Thursday, June 11.

Judge Tucker,

(alter stating the e delivered the

There being no suggestion of fraud on the part of the plaintiff in obtaining his patent, in this case we are relieved from the necessity of discussing the decision of this Court, in the case of jlamblclon, Bradford and others v. Wells, June term 1791,

* in which the defendant offered to prove the plaintiff to have been guilty of a fraud in obtaining his patent, by procuring a plat to be returned to the Register’s office, knowing that an actual suivey had not been made. By anote of ¡hatease yesterday read in Court by one of the j udges, who copied it from a note of the late President, 31r. Pendleton, it appears that other extraneous evidence was offered and rejected by the Court on the trial d that cause; such as a copy of the proclamation of Geo. 3, to grant lands to certain officers and soldiers; 2dly, testimony of witnesses to show that the deed (perhaps the patent) oí the lessor of the plaintiff was granted to Sarah Gibbs the representative of John M'Plalby, and not to the soldier himself, as was necessary by the proclamation; 3dly, witnesses to prove an actual settlement by James 6<jx before the warrant to Gibbs, which settlement was recognized by the commissioners; and an assignment by Cox to Decker. All which testimony this Court appears to have considered as properly rejected. The evidence offered in the present case appears to me to stand upon the same footing. It might perhaps have availed upon a caocat; (a proceeding calculated to prevent the emanation oí' a patent;) where the parly applying for it does not proceed in the manner which the law requires: but, a patent being the highest evidence of a complete leg al title, and a matter of record; no evidence, not in itself sufficient to avoid it, ought to be admitted to go to a jury on the trial of an ejectment. I am therefore of opinion that the judgment be affirmed.

Judges Roane, Fleming, and Lyons expressing themselves satisfied with the opinions delivered yesterday, the judgment of the District Court was unanimously affirmed..

See Tucker’s Black. vol. 3, pa. 261, note 10.