Taylor's Lessee v. Myers. 7 W. divided in opinion. The following is stated as the case on which the question arose :— "The plaintiff's claim is founded on an entry dated February 17, 1817, surveyed February 19, 1817, and on a patent founded thereon, dated July 18, 1818, covering the premises in question. "The defendant showed that the plaintiff, on February 27, 1797, made an entry on the premises in question, on another warrant, surveyed the same April 15, 1797, and recorded [ 24 ] the plat on June 20, of the same year. “That before making the entry on which his patent is founded, he had withdrawn his said first entry and survey, by a marginal note on the record thereof, made on the surveyor's book, (if a survey so circumstanced could be so withdrawn,) and located the warrant elsewhere. "The parties further agreed, that such withdrawals were customary ever since the year 1799." The questions are: 1. Can the owner of a survey, made in conformity with his entry, and not interfering with any other person's right, abandon his survey after it has been recorded? 2. Can the defendant, upon these facts, protect himself, at law, under the act of congress, passed on the 2d of March, 1807, entitled: "An act to extend the time for locating Virginia military warrants, for returning surveys thereon to the office of the secretary of the department of war, and appropriating lands, for the use of schools in the Virginia military reservation, in lieu of those heretofore appropriated;" and the several subsequent acts on the same subject? 1 The military warrants, to which these questions refer, originate in the land law of Virginia. The question, whether a warrant completely executed by survey, can be withdrawn and so revived by the withdrawal, as to be located in another place, has never, so far as is known, been decided in the courts of that State. In Kentucky, where the same law governs, *it has been recently [ 25 ] determined that a warrant once carried into survey with the consent of the owner, cannot be reëntered and surveyed in any other place. In Ohio, it is not understood that the question has been decided. The first question, however, does not involve the right of the owner of a warrant, which has been surveyed, to enter and survey it elsewhere; but his right to abandon it entirely. 12 Stats. at Large, 437. Taylor's Lessee v. Myers. 7 W. It draws into doubt the right of an individual, to refuse to consummate a title once begun. In this respect no coercive principle is to be found in the act. entry is forfeited, if not surveyed within a limited time. A survey is forfeited if not returned to the land-office by a specified time. In these cases, the right of abandonment is recognized. An individual may abandon his survey by not returning it to the land-office within the time prescribed by law. Why may he not abandon it by any other unequivocal act? This is not prescribed as a single mode by which a right is to be exercised; but is annexed as a penalty for not proceeding to complete a title. The legislature determined, that no man should be allowed to lock up land from others, without such an appropriation as would subject it to the common burdens of society. He was at liberty to perfect his title, or to lose it; but was required to do the one or the other. [ 26 ] by such relinquishment. It seems to be an ingredient in the character of property, that a person who has made some advances towards acquiring it, may relinquish it, provided the rights of others be not affected This general principle derives great strength from usage which has prevailed among these military surveys. The case states that it has been customary, ever since the year 1799, to withdraw surveys after they have been recorded. The place surveyed has, of course, been considered as having again become vacant, and has been appropriated by other warrants, which have been surveyed and carried into grant. It would be a serious mischief, the extent of which cannot be calculated, to declare these grants void. No subject requires to be treated with more delicacy than the land titles of a country, where a law has been explained by usage. Upon the general principle, which has been stated, and upon the custom of the country in this respect, the court is of opinion that the owner of a survey, under the circumstances stated in the first question, may abandon it; but by doing so he will not cancel the rights of others. If the plaintiff was at liberty to withdraw his survey, the defendant could not protect himself, under the act of congress to which the second question refers. The proviso of that act, which annuls all locations made on lands previously surveyed, applies to subsisting surveys, to those in which an interest is claimed; not to those which have been abandoned, and in which no person has an interest. A certificate is to be given in conformity with these principles. CERTIFICATE. This cause came on to be heard on the facts agreed by the parties, and on the question on which the judges of the Green v. Watkins. 7 W. circuit court were divided, and was argued by counsel; [27] on consideration whereof this court doth order that it be certified to the circuit court of the United States for the district of 1. That the owner of a survey, made in conformity with his entry, and not interfering with any other person's right, may abandon his survey after it has been recorded. 2. That the defendant, on the facts stated in the case, cannot protect himself at law, under the act of congress, passed the 2d of March, 1807, entitled, "An act to extend the time for locating Virginia military warrants for returning surveys thereon to the office of the secretary of the department of war, and appropriating lands for the use of schools in the Virginia military reservation, in lieu of those heretofore appropriated," and the several subsequent acts on the same subject. 1 P. 625; 4 P. 332; 6 P. 666; 7 H. 262. GREEN V. WATKINS. 7 W. 27. A writ of right brings into comparison the titles of the parties to the writ; the question is which of those two parties has the better right to the land. Though a mere outstanding title in a third person, consistent with all the facts necessary to constitute the demandant's case, cannot be shown to defeat his action, yet if the existence of that title is inconsistent with any fact necessary to be proved by the demandant to maintain his title, as against the tenant, it may be shown by him. Thus, as seisin in fact by the demandant is essential, if he relies merely on a patent to prove such seisin, it may be disproved by showing an earlier patent to a third person. Green v. Liter, 8 C. 229, explained. *THIS cause was argued by Montgomery, for the plaintiff in error. Hardin, for the defendant. STORY, J., delivered the opinion of the court. [ * 28 ] The record in this case presents a great variety of facts, out of which several important questions have arisen; but as the merits of the cause may, in the opinion of the court, be completely disposed of by the decision of a single point, the facts which illustrate that point will alone be mentioned. This is a writ of right, originally brought by the plaintiff in error, against the defendant in error, to recover a certain tract of land in Kentucky, described in the writ. Issue being joined on the mere right between the parties, the demandant, to sustain his suit, gave in * Green v. Watkins. 7 W. evidence a patent of the land in question, granted to him by the commonwealth of Virginia, and dated the 28th day of January, 1784, and offered proof of the boundary. But he offered no proof, other than his patent, that he was ever seised of the land [ 29 ] in question. According to the decision of this court, in Green v. Liter, 8 C. 229, a patent of vacant lands of the State conveys to the grantee a constructive actual seisin, sufficient to maintain a writ of right; and, therefore, the demandant in this case entitled himself primâ facie, upon this evidence, to a recovery. To rebut this conclusion, the tenants offered in evidence, as well for the purpose of proving title in themselves, as to show that the demandant was never seised of the premises, certain patents from the commonwealth of Virginia, which included the premises, to wit, a patent to John Lewis and Richard May, dated the 1st of June, 1782; a patent to Edmund Eggleston, dated the same day and year; and a patent to John Gratton, dated the same day and year; and a patent to Isham Watkins of the same date: under which patents the tenants endeavored to derive by mesne conveyances a good title to themselves in severalty. To the regularity of the title of the tenants so derived, the demandant' took several objections, which were overruled by the court, and the conveyances were admitted in evidence; and if, in point of law, the patents so offered in evidence by the tenants, were admissible, for the purpose of showing that the demandant never had any constructive actual seisin in the premises, which was the only seisin on which he relied, the regu larity of these mesne conveyances to the tenant becomes wholly immaterial, since, if these patents were still outstanding in strangers, they would, if admissible, all establish the same defect of seisin in the demandant. The question, then, which meets us at [ *30 ] the threshhold of this cause is, whether it *be competent for the tenants, in a writ of right, where the demandant shows no seisin by a pedis positio, but relies wholly on a constructive actual seisin, in virtue of a patent of the land, as vacant land, to disprove that constructive seisin, by showing that the State had previously granted the same land to other persons, with whom the tenants claim no privity. In other words, whether the tenants can set up title and seisin in a stranger, to disprove the seisin of the demandant; and, upon the fullest consideration, we are all of opinion that they may. The reasoning on which our opinion is founded, is this; the mise joined in a writ of right, necessarily involves the titles of both parties to the suit, and institutes a comparison between them. It is consequently the right of each party to give any fact in evidence which destroys the title of the other; for the question in Green v. Watkins. 7 W. controversy is, which hath the better mere right to hold the demanded premises. It has been already decided by this court, and is, indeed, among the best established doctrines of the common law, that seisin in deed either by possession of the land, and perception of profits, or by construction of law, is indispensable to enable the demandant to maintain his suit. The tenant may, therefore, show in his defence, that the demandant had no such actual seisin; for the seisin of the freehold by the tenant, which is admitted by the bringing of the suit against him, is a sufficient title for the tenant, until the demandant can show a better title. The tenant may thus defeat the demandant, by proving that he never had any such seisin in deed; or if he once had it, that he has parted with *his [ 31 ] whole estate, by a conveyance competent to convey, and actually conveying it. * To apply this doctrine to the present case. The demandant here relies, not on a seisin in deed, by a pedis positio, but on a seisin in deed by construction of law, in virtue of his patent. If the land included in the grant belonged, at the time of the conveyance, to the state, and was vacant, upon the principles already asserted by this court, it conveyed, by operation of law, a seisin in deed to the demandant. But if the state had already granted the land by a prior patent, it was already, upon the same principles, in the adverse seisin of another grantee, and, consequently, the patent to the demandant could not convey either title or seisin. It is, therefore, manifest, that for this purpose, to disprove the seisin of the demandant, the tenants in this case were entitled to introduce the four patents above stated, even if they failed to establish a privity of estate in themselves, since these patents were all prior to that of the demandant, included the land, and, if admitted, would show that the seisin in deed, by mere construction of law upon the grant of his patent, never had a real existence. It has been supposed, however, at the bar, that the case of Green v. Liter, 8 C. 229, establishes a different doctrine on this point. In our opinion, that case does not justify any such conclusion; and certainly was not understood by the court to require it. It will be recollected, that the case of Green v. Liter came before this court upon a division of opinion of the judges of the circuit court upon certain questions of law, stated in the record. [ 32 ] To those questions, in the form in which they were stated, and to those questions only, could the opinion of this court properly extend. In answer to the fifth question, which involved the inquiry, whether actual seisin, or, as it is commonly expressed, seisin in deed, is necessary to maintain a writ of right, and whether a patent from |