On a trial in ejectment, the plaintiffs offered in evidence a
number of entries of recent date made by the defendants within the
bounds of the tract of land in dispute, designated as "Young's
4,000 acres," and attempted to prove by a witness that Young, when
he made the entries, had heard of the plaintiffs' claim to the
land. The defendants then offered to introduce as evidence official
copies of entries made by other and third persons since the date of
the plaintiffs' grant for the purpose of proving a general opinion
that the land contained in the plaintiffs' survey, made under the
order of the court after the commencement of the suit, were vacant
at the date of such entries and to disprove notice to him of the
identity of plaintiffs' claim when he made the entries under which
he claimed. This evidence was unquestionably irrelevant.
Entries made subsequent to the plaintiffs' claim, whatever might
have been the impression under which they were made, could not
possibly affect the title held under a prior entry.
The admission of evidence which was irrelevant but which was not
objected to will not authorize the admission of other irrelevant
evidence offered to rebut the same when the same is objected
to.
The land law of Virginia directs that within three months after
a survey is made, the surveyor shall enter the plat and certificate
thereof in a book, well bound, to be provided by the court of his
county at the county charge. After prescribing this, among other
duties, the law proceeds to enact that any surveyor failing in the
duties aforesaid shall be liable to be indicted. The law, however,
does not declare that the validity of such survey shall depend in
any degree on its being recorded.
The chief surveyor appoints deputies at his will, and no mode of
appointment is prescribed. The survey made by his deputy is
examined and adopted by himself, and is certified by himself to the
register of the land office. He recognizes the actual surveyor as
his deputy in that particular transaction, and this, if it be
unusual or irregular, cannot affect the grant.
Objections which are properly overruled, when urged against a
legal title in support of an equity dependent entirely on a survey
of land for which a patent has been issued, can have no weight when
urged against a patent regularly issued in all the forms of
law.
In Virginia, the patent is the completion of the title, and
establishes the performance of every prerequisite. No inquiry into
the regularity of those preliminary measures which ought to precede
it is made in a trial at law. No case has shown that it may be
impeached at law, unless it be for fraud. Not legal and technical,
but actual and positive fraud in fact committed by the person who
obtained it, and even this is questioned.
Page 28 U. S. 321
It is admitted to have been indispensably necessary to the
plaintiffs' action to show a valid title to the land in controversy
and that the defendants were at liberty to resist the testimony by
any evidence tending in any degree to disprove this identity. But
the defendants were not at liberty to offer evidence having no such
tendency, but which might either effect a different purpose or be
wholly irrelevant. The question of its relevancy must he decided by
the court, and any error in its judgment would be corrected by an
appellate tribunal. The Court cannot perceive that the omission of
the surveyor to record the survey, or the fact that the survey was
made by a person not a regular deputy, had any tendency to prove
that the land described in the patent was not the land for which
the suit was instituted.
The warrant for the land in controversy was entered with the
Surveyor of Monongalia County on 7 April, 1784. At the May session
of that year, the General Assembly of Virginia divided the County
of Monongalia, and erected a new county, to take effect in July, by
the name of Harrison. The land on which the plaintiffs' warrant was
entered lay in the new county. The certificate of survey is dated
in December, 1784, and in accordance with the entry, states the
land to be in Monongalia.
The land law of Virginia enacts that warrants shall be lodged
with the surveyor of the county in which the lands lie, and that
the party shall direct the location specially and precisely. It
also directs dispatch in the survey of all land's entered in the
office. No provision is made for the division of a county between
the entry and the survey. The act establishing the County of
Harrison does not direct that the Surveyor of Monongalia County
shall furnish the Surveyor of Harrison with copies of the entries
of lands which lay in the new county and with the warrants on which
they were made. In this state of things, the survey of the land in
controversy was made by the Surveyor of Monongalia; the plat and
certificate on which the patent was afterwards issued were
transmitted to the land office, and the patent described the land
as in Monongalia County. No change was made in the law until 1788.
This will not
annul the patent or deprive the unoffending patentee of his
property.
The misnomer of a county in a patent for land will not vacate
the patent. It will admit of explanation, and if explanation can be
received, the patent on which the misnomer is found is not
absolutely void.
This was an ejectment brought by the defendants against the
plaintiffs in error in the District Court of the United States for
the Western District of Virginia, exercising circuit court powers,
for the recovery of a tract of 4,000 acres of land in the said
district, being a tract lying in the northeast corner of a large
connection of surveys made together, owned by Reed and Ford, the
said Youngs, Thomas Lardley, and others, some in one name and some
in others, as appearing by the surveyor's diagram. There was
Page 28 U. S. 322
a verdict and judgment for the plaintiffs, which this writ of
error is brought to reverse.
During the trial, the counsel of the defendants tendered three
bills of exceptions to opinions of the court, which are signed,
sealed, and made part of the record, and which are substantially as
follows:
The first bill of exceptions states that the plaintiffs below,
on the trial of the case before the district court, introduced a
grant for the lands claimed, which grant is described in the third
bill of exceptions, and the plat and report of the surveyor made in
the cause.
That the plaintiffs also offered in evidence a number of entries
of recent date, made by the defendant Stringer, within the bounds
of the said land, as designated on said report, as John Young's
4,000 acres, being the land claimed by the plaintiffs, and
attempted to prove by a witness that Stringer, when he made those
entries, had heard of the plaintiffs' claim to the land in
controversy. The defendants thereupon offered as evidence official
copies of entries made by others and third persons since the date
of the plaintiffs' grant for the purpose of proving a general
opinion that the lands claimed were vacant at the date of the said
entries, and to disprove notice to Stringer of the identity of the
plaintiffs' claim when he made the entries under which the
defendants claim to hold. The court decided this evidence to be
inadmissible, to which the defendants excepted.
The second bill of exceptions, after setting out the plaintiffs'
grant, states that the defendants then offered in evidence the
surveyor's book of Monongalia County to prove no such survey had
ever been returned to the office of said surveyor and recorded in
the books of the said surveyor, and further offered to introduce
evidence to prove that Henry Fink, the deputy upon whose survey the
grant purports to have issued, resided at the date of the said
survey in Harrison County, and was not then a deputy surveyor of
Monongalia County. The defendants offered the said evidence to
prove that no survey had ever been made and that the register
issued the grant without proper authority, on which
Page 28 U. S. 323
account the same was void. The plaintiffs objected to this
evidence as inadmissible for the purpose stated, and the court
rejected it as such. The defendants counsel then offered the same
evidence to disprove the identity of the land contained in the
plaintiffs grant with that now claimed by the plaintiffs, and
represented by the surveyor's report as contained by the blue lines
thereon and thereon designated by the Roman numeral V. The court
also rejected the said evidence for the last mentioned purpose, and
the defendants excepted.
The third bill of exceptions states that the plaintiffs on the
trial of the cause introduced a grant in the words and figures
following, setting it forth at large. The grant is issued to John
Young, the lessor, and dated 10 June, 1786, for 4,000 acres, the
premises in question, bounded as follows, to-wit: (describing it by
metes and bounds).
The defendants thereupon offered in evidence a certified copy of
an act of assembly of Virginia establishing the County of Harrison
and a copy of the certificate of the survey on which the
plaintiffs' said grant issued, dated December 13, 1824, after the
act for erecting the County of Harrison was in operation, and
proved that the land purporting to be granted and the land claimed
as having been surveyed lay in the bounds of the County of
Harrison, and upon this evidence the counsel moved the court to
instruct the jury that if it was satisfied from the testimony that
the lands lay in a different county from that in which the survey
imports to have been made, then the grant was void at law, and that
it was not competent for the plaintiffs to contradict the call for
the county in the grant. But the court delivered its opinion that
the foregoing facts, if true, should not avail the defendants in
the present action, as the grant was not void, to which opinion the
third bill of exceptions is taken.
Page 28 U. S. 336
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This was an ejectment brought in the Court of the United States
for the Western District of Virginia. The jury found a verdict for
the plaintiffs, on which the judgment of the court was rendered,
which judgment has been brought to this Court by writ of error. As
the trial, three bills of exception were taken to opinions given by
the court to the jury, and the cause depends on the correctness of
these opinions. The first bill of exceptions is in substance:
"The plaintiffs at the trial of this cause produced a grant
[setting it forth in words and figures therein]. This grant is
issued to John Young, dated 10 June, 1786, for 4,000 acres, bounded
as follows: beginning at a black oak corner to land entered by
George Jackson, and running thence N. 3� W. 1001 poles,
crossing waters of Stone Coal creek to a beech, thence N 80�
E 641 poles, crossing a branch of said creek to a white oak S.
3� E. 1,001 poles, by lands surveyed for Thomas Laidley, to
a white oak, and thence S. 80� W. 660 poles, crossing waters
by lands of said waters to the beginning. Also the plat and report
of the surveyor, Thomas Haymond, made in this cause, in pursuance
of an order, &c. The plaintiff also offered in evidence a
number of entries of recent date, made by the defendant Stringer
within the bounds of the tract of land designated on said report as
John Young's 4,000 acres, being the land claimed by the plaintiffs,
and attempted to prove by a witness that Young, when
Page 28 U. S. 337
he made said entries, had heard of the plaintiffs' claim to the
land in controversy. The defendants thereupon offered to introduce
as evidence official copies of entries made by other and third
persons since the date of the plaintiffs' grant for the purpose of
proving a general opinion that the lands contained in the report
and diagram of the surveyor made in this cause were vacant at the
date of such entries, and to disprove notice to Stringer of the
identity of the plaintiffs' claim when he made the entries under
which the defendants claim, but the court declared its opinion to
be that the said evidence was inadmissible, and rejected the
same."
The testimony offered by the defendants was unquestionably
irrelevant. Entries made subsequent to the plaintiffs' grant,
whatever might be the impression under which they were made, could
not possibly affect the title, and were therefore clearly
inadmissible. This principle has never been controverted, but the
plaintiffs in error insist that they had a right to introduce this
testimony in order to rebut other equally irrelevant testimony
which had been offered by the plaintiffs in ejectment. This
testimony was the recent entries made by Stringer, and the witness
who proved that at the time of making them, he had no notice of the
plaintiffs' claim. This testimony was undoubtedly irrelevant, and
had it been opposed, could not have been properly admitted. Had the
defendant moved the court to instruct the jury that it must be
utterly disregarded, that it must not be considered by them as
testimony, and this instruction had been refused, the refusal to
give it would have been error. The defendant, however, has not
taken this course, but has chosen to repel the testimony by other
evidence which was clearly inadmissible. Whether a case may exist
in which improper testimony may be calculated to make such an
impression on the jury that no instruction given by the judge can
efface it, and whether in such a case testimony not otherwise
admissible may be introduced, which is strictly and directly
calculated to disprove it, are questions on which this Court does
not mean to indicate any opinion. It is unnecessary, because the
testimony rejected by the court is not of this character.
Page 28 U. S. 338
Entries made subsequent to the plaintiffs' grant by others can
have no tendency to disprove the evidence of notice by the
defendant when his entries were made.
The second bill of exceptions is in these words.
"Upon the trial of this cause, the plaintiffs, in support of the
issue on their part, introduced a grant to the lessor of the
plaintiffs in the words and figures following: 'Patrick Henry,
&c.' The defendants thereupon offered to introduce the
surveyor's book of Monongalia County to prove no such survey had
ever been returned to the office of said surveyor and recorded in
the book of said office, and further offered to introduce evidence
that Henry Fink, the deputy upon whose survey said grant purports
to have issued, resided at the date of the said survey in Harrison
County, and was not a deputy surveyor of Monongalia County. The
defendants offered said evidence to prove the said grant issued
without any survey's having been made, and that the register of the
land office issued said grant without proper authority, and that
the same was therefore void. To the giving of which evidence the
plaintiffs, by their counsel, objected, and the court declared its
opinion to be that such evidence could not be given for the
purposes aforesaid, and rejected the same. Whereupon the
defendants, by their counsel, offered the same evidence to disprove
the identity of the land contained in the plaintiffs' grant with
that now claimed by the plaintiffs and represented by the figure in
the said surveyor's report. But the court declared its opinion to
be that the said evidence ought not to be received for the last
mentioned purpose."
In rejecting this testimony, the court decided that the
nonappearance of the survey on which the grant of the plaintiffs
had been issued on the book of the Surveyor of Monongalia County,
where it ought to have been recorded, and the fact that the person
who made the survey was not at the time a deputy surveyor of
Monongalia County could not avoid the patent, and that the evidence
of those facts was consequently inadmissible.
The land law of Virginia directs that within three months after
a survey is made, the surveyor shall enter the plat and
Page 28 U. S. 339
certificate thereof in a book, well bound, to be provided by the
court of his county at the county charge. After prescribing this
among other duties, the law proceeds to enact that any surveyor
failing in any of the duties aforesaid shall be liable to be
indicted, &c. The law, however, does not declare that the
validity of such survey shall depend in any degree on its being
recorded.
The act also directs that the surveyor
"shall, as soon as it can conveniently be done, and within three
months at the farthest after making the survey, deliver to his
employer or his order, a fair and true plat and certificate of such
survey,"
&c. This plat and certificate is to be returned into the
land office within twelve months at farthest. It may be returned
immediately, and consequently may be returned to the land office
before the expiration of the three months allowed to the surveyor
for recording it in his book. This plat and certificate of survey
is an authority to the register to issue a patent.
The surveyor undoubtedly neglects his duty if he fails to record
the plat and certificate of survey, and is punishable for this
neglect, but the act furnishes no foundation for the opinion that
the validity of the survey or of the patent is in any degree
affected by it.
This point occurred in the case of
Taylor
v. Brown, 2 Cranch 234. That was a suit in chancery
brought by a junior patentee to establish an elder equitable title
against the elder patent. Both claimed under old military surveys
made in virtue of military warrants granted for services under the
regal government, an entry of which with the surveyor was not
required by law; consequently the survey was the foundation of a
title to be asserted in a court of equity against a title which was
valid at law. The omission of any circumstance affecting his title
was not, as in this case, cured by the patent.
In answer to the objection that the survey was not recorded
within the time prescribed by the act of 1748, which contains a
similar provision to that which is found in the present land law,
the court said
"This section is merely directory to the surveyor. It does not
make the validity of the survey
Page 28 U. S. 340
dependent on its being recorded, nor does it give the proprietor
any right to control the conduct of the surveyor in this respect.
His title, where it can commence without an entry, begins with the
survey, and it would be unreasonable to deprive him of that title
by the subsequent neglect of an officer not appointed by himself in
not performing an act which the law does not pronounce necessary to
his title, the performance of which he has not the means of
coercing."
We adhere to this opinion.
The circumstance that Fink, who is stated not to have resided at
the time in Monogalia nor to have been a deputy surveyor of that
county, has also been considered as vitiating the patent.
The chief surveyor appoints deputies at his will, and no mode of
appointment is prescribed. The survey made by his deputy is
examined and adopted by himself, and is certified by himself to the
register of the land office. He recognizes the actual surveyor as
his deputy in that particular transaction, and this, if it be
unusual or irregular, cannot effect the grant. This point also
appears to have been substantially decided in the case of
Taylor v. Brown. In that case, Taylor's survey was made by
Hancock Taylor, who was killed by Indians, so that he never
returned the plat and certificate of survey to William Preston, the
principal surveyor, as was required by law. His field notes,
however, were brought to the principal surveyor, who made out a
plat and certificate of survey from them. To the objection that the
plat and certificate not having been returned to the office, the
survey was not completed, the court answered
"This survey then is in law language made by William Preston. It
is confirmed as a survey made by him. The law recognizes it as his
survey. Assuredly then his certificate may authenticate it."
It cannot escape observation that if these objections were
properly overruled when urged in support of the legal title against
an equity dependent entirely on the survey, they can have no weight
when urged against the validity of a patent which has been
regularly issued in all the forms of law.
In Virginia, the patent is the completion of title, and
establishes
Page 28 U. S. 341
the performance of every prerequisite. No inquiry into the
regularity of these preliminary measures which ought to precede it
is made in a trial at law. No case has shown that it may be
impeached at law unless it be for fraud -- not legal and technical
but actual and positive fraud in fact committed by the person who
obtained it, and even this is questioned.
In
Hambledon v. Wells, reported in a note in 1 Hen.
& Mumf. 307, the defendants in ejectment in the district court
offered evidence to prove that the grant under which the lessor
claimed was defective in several prerequisites to a patent. The
court of appeals overruled these objections, but determined
"that the district court erred in not permitting the appellants
to give evidence that the appellee procured the plat on which the
patent was obtained to be returned to the office, knowing that an
actual survey had not been made."
In this case, the objectionable act was a fraud knowingly
committed by the patentee himself. Even this case has been
questioned, though not, as far as is known, expressly
overruled.
In
Witherington v. McDonald, 1 Hen. & Mumf. 306,
the defendant in ejectment offered evidence to show that the survey
upon which the plaintiff's patent was founded was illegal, and also
that the patent was obtained upon a certificate signed by Charles
Lewis, as clerk of the land office, instead of being signed by the
register or his deputy, as is required by law. The defendant
excepted to the opinion of the court rejecting this testimony, and
appealed to the court of appeals. The judgment was unanimously
affirmed in that court. In the course of the trial, the case of
Hambledon v. Wells was mentioned by several of the judges
with disapprobation, and it was said that a single case decided by
three judges against two was not considered as conclusively
settling the law.
The case of
Hoofnagle v.
Anderson, 7 Wheat. 212, was a suit in chancery
brought to obtain a conveyance for a tract of land in the Virginia
Military Reserve, in the State of Ohio, for which Anderson had
obtained a patent. After its emanation, the plaintiff had located a
military land warrant
Page 28 U. S. 342
on the same land, issued for services performed by an officer in
the Virginia Line on continental establishment. The services
performed by the officer on whose warrant Anderson's patent had
been issued were in the state line, though the warrant was
expressed, by mistake, to be for services in the continental line.
This Court said
"It is not doubted that a patent appropriates the land. Any
defects in the preliminary steps which are required by law are
cured by the patent. It is a title from its date, and has always
been held conclusive against all whose rights did not commence
previous to its emanation."
After the rejection of this testimony when offered to defeat the
patent, it was offered for the purpose of disproving that the land
contained in the patent was the same land claimed in the suit. The
court rejected it when offered for this purpose also.
It is admitted to have been indispensably necessary to the
plaintiffs' action to show a valid title to the land in controversy
and that the defendants were at liberty to meet this testimony by
any evidence tending in any degree to disprove this identity. But
the defendants were not at liberty to offer evidence having no such
tendency, but which might either effect a different purpose or be
wholly irrelevant. The question of its relevancy must be decided by
the court, and any error in its judgment would be corrected by an
appellate tribunal.
Now this Court cannot perceive that the omission of the surveyor
to record the survey, or the fact that the survey was made by a
person not a regular deputy, had any tendency to prove that the
land described in the patent was not the land for which the suit
was instituted.
The third exception stated that the plaintiffs had offered in
evidence a grant as set forth in the second bill of exceptions,
&c. The defendants thereupon offered in evidence a certified
copy of an act of the Assembly of Virginia establishing the County
of Harrison in the words and figures following: "An act for
dividing, &c." and a copy of the certificate of survey on which
said grant issued, in the words and figures following: "December
13th 1784, &c.," and proved
Page 28 U. S. 343
that the land purported to be granted, and the land claimed as
having been surveyed, lay in the bounds of the County of Harrison,
established as aforesaid, and therefore the defendants moved to
instruct the jury that if it was satisfied from the testimony that
the land lay in a different county from that in which the survey
purported to have been made, that the grant was void, and that it
was not competent for the plaintiffs to contradict the call for the
county in the patent and survey; but the court then and there
declared its opinion to the jury that if even the facts aforesaid
were true, they could not avail the defendants in the present
action, and that the grant under these circumstances would not be
void.
The warrant was entered for the land in controversy with the
Surveyor of Monongalia County on 7 April, 1784. At the May session
of that year, the general assembly divided the County of
Monongalia, and created a new county, to take effect in July, by
the name of Harrison. The land on which Young's warrant was entered
lay in the new county. The certificate of survey is dated in
December, 1784, and, in accordance with the entry, states the land
to lay in Monongalia. The grant conforms with the certificate.
The land law of Virginia enacts that warrants shall be lodged
with the surveyor of the county in which the lands lie, and that
the party shall direct the location thereof specially and
precisely. It also enacts that "every chief surveyor shall proceed
with all practicable dispatch to survey all lands entered for in
his office." No provision is made for the division of a county
between the entry and survey. The act establishing the County of
Harrison does not direct that the Surveyor of the County of
Monongalia shall furnish the surveyor of the new county with copies
of the entries of lands lying in Harrison, and with the warrants on
which they were made. In this state of things, the survey was made
under the authority of the Surveyor of Monongalia, and the plat and
certificate on which the patent afterwards issued were transmitted
to the land office. It was not till the year 1788 that the
legislature passed an act on this subject, which directs that when
any county shall be thereafter divided, the
Page 28 U. S. 344
surveyor of the new county shall be furnished with copies of the
entries of all the surveyed lands lying in his county.
If in this uncertain state of the law, the Surveyor of
Monongalia County has surveyed an entry properly made in his office
for land which by a subsequent division of the county falls into
Harrison, and has made his certificate as if the county still
remained undivided, ought this error, if it be an error of the
officer, to annul the patent and deprive the unoffending patentee
of his property?
The counsel for the plaintiffs in error has produced several
cases to show that a mistake of this character in a royal grant or
any misinformation to the officers of the Crown will vitiate the
instrument. We are not sure that grants which may be supposed to
proceed from royal munificence are to be placed precisely on the
same footing with grants which are the completion of a contract of
sale, every preliminary step in which is taken by officers
appointed for the purpose by government, who act without the
control of the purchaser. After making his location, he may show
the land located, but has nothing to do with the authority of the
surveyor or the language in which he may make out his plat and
certificate of survey. In this case, there could have been no
imposition attempted on the government by the purchaser. The
mistake is accounted for, and there can be no imputation on the
intrinsic fairness of the transaction. The misnomer of the county
might take place, as has been suggested at the bar, in a case in
which all the proceedings were perfectly regular. Had the survey
been made the day before the law dividing the County of Monongalia
took effect, the plat and certificate of the surveyor must have
stated the land to be in Monongalia. The patent could not have
issued until six months afterwards, and must have stated the lands
to lie in Monongalia, although at the time of its emanation they
would in fact lie in Harrison. To say in such a case that the
misnomer of the county could avoid the patent would shock every
sense of justice and of law too much to be maintained. This
misnomer of the county then must admit of explanation, and if
explanation can be received, the patent is not absolutely void.
Page 28 U. S. 345
The circumstances on which the motion to reject the grant was
made might be very proper for the consideration of the jury on the
question whether it comprehended the land in controversy, but do
not, we think, destroy its validity.
A vast deal of testimony, of which the Court can take no notice,
is crowded into this record. The bills of exceptions taken to the
opinions of the district judge present the only points which we are
at liberty to consider. In those opinions there is, we think, no
error. The judgment is
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the district Court of the United States for the District of
West Virginia, and was argued by counsel, on consideration whereof
it is ordered and adjudged by this Court that the judgment of the
said district court in this cause be and the same is hereby
affirmed with costs.
