Ост. 1802

Preston

VS.

Preston.

If a patent be obtained fraudufently, or contra

no action at law can be maintained upon the bond against the heir of Martin Preston: And the heir cannot possibly be answered unless sued as heir, and unless he had promised to pay the debt. This is a suit against him without stating that he is heir; without stating that assets had come to his hands, and without stating an express promise to pay.

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PLAINTIFF NONSUITED.

COURT OF APPEALS, NOV. TERM, 1802.

GARRETSON VS. COLE.

APPEAL from a decree of the court of chancery, iu

ry to the rules of favour of the complainant in that court. The bill

the land office, it

is voi able or void stated that Cole, (the appellee,) on the 12th of Fe

in a court of law,

court of equity

as well as in a bruary 1771, obtained a common warrant from the 60 acres of land, and paid the caution

and if suit be first land office for

brought at law, in which the validity of such

patent money on it.

might be tried,

equity will not the warrant,

afterwards interfere.

Where à court

That within five days from the date of he took it to the surveyor of Baltimore

county, (to whom it was directed,) and had it located

of equity decrees on certain vacant land in that county, which the ap

dant to the com pellee had first discovered, adjoining Grindall and

plamant, and on

the service of a Taylor's Addition, and that the surveyor endorsed

copy of the de.

with the tender of

erte, under seal, that location on the warrant, and also entered it in a deed in pursue his book, but that both the warrant and the book,

ance of the de

eree, the defen

dant refuses to de- were either mislaid or lost. That this warrant was liver up posses

sion, and to exe- renewed from time to time, according to the rules of

cute the deed, a

writ of injunction, the land office, until the 8th of January 1773, when to compel delivery of the possession, it was executed, and a certificate thereof returned, Form of such calling the land Cole's Discovery, and stating it to

may be issued

writ.

If that writ be

not obeyed, the contain 310 acres, and that a patent for the same is

court will grant

an habere facias sued to the appellee on the 10th of April 1775. That

possessionem."

Form of such Garretson, (the appellant,) having been informed by

Writ.

one of the deputy surveyors of the county aforesaid, of the vacancy which the appellee had, as above stated, discovered, did, on the 10th of May 1771, get a special warrant for one hundred acres of vacant land lying in Anne Arundel county, which had been long before granted to one John M.Donald, renewed in his,

Nov. 1802.

(the appellant's) name, with liberty to execute it on the same quantity of vacant land in Baltimore county, adjoining Sheredine's Discovery, Mount Royal and Grindail. That he had this warrant executed, and a certificate thereof returned, dated the 17th of June 1772, calling the land The Silent Cyphers of Africa, and making it contain 665 acres. That this warrant was not executed, according to its express directions, on vacant land adjoining the tracts called Sheredine's Discovery, Mount Royal and Grindall, but that elder tracts were crossed, and vacant land included by it, which did not lie adjoining these three tracts, taking in, in this way, all the vacancy embraced by the appellee's certificate, except about 111 acres. That the appellant's certificate was, by this fraud, and that of the deputy surveyor before mentioned, dated prior to the appellee's. That the appellee was entitled to a preference, because his warrant was located, (as he before stated,) by the endorsement and entry thereof in the surveyor's book, both of which were anterior to the actual date of the appellant's certificate; and because also the warrant of the appellee was executed according to the rules of the land office, and that of the appellant in opposition to them; but more especially, because the vacancy included in the appellee's, certificate could not have been correctly included in the certificate of the appellant, as it did not adjoin the three tracts which his warrant called for. That in consequence of these facts, the appellee caveated the appellant's certificate, on the 22d of January 1773, which caveat was never heard by the judges of the land office, in consequence of the fraud and contrivance of the appellant, who on the 6th of November 1775, petitioned said judges for a dismissal of such caveat, stating that the appellee had removed out of the state to a place called Juniata, a great distance from this state, with an intention to reside there, in consequence of which the caveat was dismissed, and a patent issued to the appellant on his said certificate. That the appellee however never did remove away,

was living on the said land at the date of this pe

Garretson

VS

Colo

Nov. 1802.

Garretson

tition, which was known also to the appellant. That according to the practice of the land office at that time, a caveat could not be dismissed but after a hearing or notice to the parties, and their neglecting to attend. That the appellant having thus obtained a patent, brought an action of ejectment in the general court against the appellee, for the said land, and got judgment thereon against him, that court being of opinion that the appellant bad the legal title from his certificate's being older, his patent having relation back to the date of the certificate(a). That execution was had on this judgment against the appellee for the costs, which he would have to pay, and possession given of the said land to the appellant. All of which doings of the appellant, and his confederates, are stated to have been contrary to equity and good conscience, and the bill therefore prayed for the usual process against the appellant, and that he might be compelled to convey to the appellee all the land included in the certificate of The Silent Cyphers of Africa, which was embraced by the appellee's certificate of Cole's Discovery, concluding with a prayer for general relief, &c.

The appellant's answer denied all the fraud charg ed by the bill, and stated that he got Donald's warrant assigned to him for a valuable consideration. That his certificate had not been antedated by his contrivance, or that of the deputy surveyor, but bore date on the day it was executed, as it ought to have done. It admitted that the caveat stated by the bill had been put in by the appellee against the appellant's certificate, and that it had been dismissed on the petition stating the facts mentioned by the bill, but denied that the appellant had any knowledge of that petition, or gave his consent to its being filed as it was. It also admitted, that the facts stated in that petition were untre. That the petition must have been filed by one Cox, vho acted as the appellant's agent, having been spoken to by him for that purpose when he was going to Anapolis, but that he gave him no other instructions than to get the caveat dismissed. It denied that any other va(a) 2 Harr. & M.Hen. 459.

373

Garretson

VS.

Cole.

cancy was included by the certificate of The Silent Nov. 1802. Cyphers of Africa, than lay adjoining the tract called Grindall, one of the tracts called for by the warrant; and stated, that if there was, it could not injure the appellant's title to that which did lay adjoining those tracts. It also admitted the judgment in the general court, and the execution on it, and the delivery of possession, &c. as stated in the bill, and concluded with a prayer to be dismissed, &c. with costs.

The proof taken under a commission in the cause, was the surveyor's deposition, stating that he thought that about 22 or 23 years back, he had made an entry on Cole's warrant, of its location, as stated in the bill, or in a book kept by him for that purpose, but that he burnt many papers supposed by him, at the time, to have been useless, amongst which he thought it likely was this warrant and book. He also stated, that the appellant's warrant was executed by his deputy; and several other facts not necessary to the understanding of the points decided by the court, and which are therefore omitted to be stated by the Reporters.

HANSON, Chancellor, at February term 1797, passed the following decree, viz.

The said causes standing ready for hearing, and being submitted on the written arguments of the counsel on each side, the bill, answer, depositions, exhibits, arguments. and all other proceedings, were by the chancellor read and considered.

The case appears to be thus.-Under the old government each of the parties obtained a patent in which the land in dispute is included. Each of the surveys, on which those patents issued, if properly made, was authorised by warrant; although neither of them was made under a special warrant designating the land, nor does there appear to have been any locations giving a title to the said land before the survey was actually made.

Garretson had the elder survey, Cole the elder patent; and according to an established doctrine at law, Garretson's t tle prevailed over Cole's. Cole therefore applies to this court for a decree, either to vacate

Nov. 1802. Garretson's patent, or to compel him to convey; and the grounds of his application, supported by the proofs, are as follows:

Garretson

TS.

Cole.

Garretson's survey violated the fixed rules of the land office in running through and taking part of a patented tract, and by including two distinct pieces of vacancy, between which run the said part of a patented tract; the second piece of vacancy was afterwards comprehended in Cole's survey; and Cole therefore caveated Garretson's certificate.

By the uniform practice of the land office no caveat could be dismissed without hearing, or at least giving the caveator an opportunity of being heard; provided he could be served with notice of hearing. Instead of taking measures to have Cole's caveat fairly heard, Garretson, or some person in his behalf, preferred a petition to the judges, suggesting that Cole had removed a vast distance from the province; and as there was no probability of his return, the petition prayed a dismission of his caveat, and a patent on Garretson's certificate. The caveat was dismissed, and a patent was issued without the judges requiring any proof of the suggestion, which on a fair investigation would have turned out altogether untrue and groundless.

The object then of Cole's application to this court is to be placed, in effect, in the situation, in which he would have been, after a full and impartial hearing `before the judges of the land office.

From the beginning of the court of chancery it has exercised its jurisdiction in relieving against fraud and imposition; and no instance can be shewn, where it has refused its aid to prevent the person who has practiced fraud or imposition from depriving another thereby of his right. If the agency of a third person could avail him in whose favour a fraud is practised, it is probable that such agency would always be procured; and therefore this court will not distinguish between that which is perpetrated by a man on his own account, and that which he does in behalf of another.