Brown v. Galloway , 4 F. Cas. 373 ( 1816 )

WASHINGTON, Circuit Justice.

There are two principal questions in this cause: First, had the lessor of the plaintiff a good title to the possession of this land, at the time when this suit was brought? and if he had; then, secondly, is he entitled to a verdict, and of what nature?

First, the plaintiff has produced a regular paper title to the Population Company, under whom he claims; that is to say, a patent dated the 20th July, 1799, and also a lease from the trustees of that company to himself. The defendant has attempted to impeach this title, by insisting that no proof has been given, to show that the acts which the law requires to be performed, previous to. the emanation of the grant, were performed. It is contended, that he has failed to prove, that the warrant to Giss was entered by the • deputy surveyor in his book, prior to the inception of the defendant's title; that it was regularly surveyed on the land and returned; or that the grantee of the warrant, made such a settlement as the law required, within two years from June, 1794, (which it is insisted is the only legal date of the warrant,) or accounted for his not having done so. These objections have been answered in detail, by the plaintiff’s counsel; but the short and conclusive answer is, that it was not necessary for the plaintiff to prove the regularity, of his proceedings antecedent to the patent, which as between him and the state, or the defendant, is to be considered as evidence, that all the previous steps leading to this consummation of the title, had been regularly pursued, unless the contrary is proved by the person who attempts to impeach the validity of the patent. This point has been long since decided in this court; and most uncertain and precarious would be the situation of the land titles in this state, if a patentee of land could not rest with some degree of confidence on this evidence, but must be called upon at all times, when intruders or others thought proper to question it, to prove not only that his own acts in pais but those of the public officers concerned in the execution of other acts, and entrusted by the public to do them, were regular^ performed. It has been contended, that the ■ inception of the defendant’s title by settlement, was prior to the date of the patent in question, and, that in such a case the rule above stated does not apply. I do not admit that this would affect the rule, if the fact were as the counsel has stated it But such a settlement is not proved, and the only evidence relied upon as proof of it, is, the recital in the vacating warrant granted to the defendant and some affidavits which accompanied the application; but the latter are not evidence in this cause, and the former would be no evidence against the plaintiff, upon the defendant’s own rule as it was laid down by his counsel.

The question is, has the defendant given any evidence to impeach the patent under which the lessor of the plaintiff claims? He contends, that the land could not have been regularly surveyed, because two of the corner trees, called for in the survey, could not be found by a witness who was examined. And is the certificate of a public officer. stating that on a certain day, now twenty years past, this land was surveyed, to be discredited by the unsuccessful efforts of a stranger to find all the corners of the land? To admit exparte evidence like this, for such a purpose, would be highly unreasonable. It does not appear that the witness made a regular survey of the land, that he went to the real corners, or that the plaintiff or any other person on his behalf, or who was enabled to give the necessary information for tracing the lines, was present. Such evidence therefore can have no weight. As to the necessity of proving a settlement, or a prevention and persistence, which it is contended could not exist in this case, the whole argument proceeds upon a mistaken notion, that the time of the payment of the purchase money, constitutes the only real date of the warrant. The warrant, according to long and uniform practice, is dated as of the day of the application, although it is retained until the purchase money is paid, when, and not before, it issues to the party. The application constitutes an inchoate contract between the state and the individual, by which the former agrees to permit the latter to appropriate a certain quantity of land, and to furnish him with the proper authority to make this appropriation, upon his paying the purchase money. When the money is paid, and the warrant received, the purchaser is obliged to pay interest from the day of the application, because that was the date of his contract, and of his obligation to pay. As between the state and the individual, the contract therefore has its inception and takes effect from the day of the application. But, if the latter does not within a reasonable time pay the purchase money and take out his warrant, third persons may take advantage of his laches, and defeat the prior right which he had acquired by his application. As to third persons, therefore, the right of the first applicant dates from the payment of the purchase money. But, that the date .of the- warrant, is the period from which the two years are to run, within which the settlement is to be made, is manifest from the words of the law, and has been so decided by this court, and by the supreme court, and is consistent with the nature of the contract, and the policy of the state.

The last objection to the title of the lessor of the plaintiff, is, that no deed has been produced from Giss, to the Population Company. This was not necessary. We cannot but know, from the evidence in this cause, that Giss is a mere man of straw, that his name was used by the Population Company for the purpose of enabling them to appropriate this tract, being one out of some hundreds, applied for by that company at or about the same time, and which were laid down on the connected plot. But were it otherwise, still, upon general principles, in an action at law against this very applicant, the equitable title of the real applicant, cannot ptand in the way of one, who has paid the purchase money and has obtained a patent; much less against a third person. If Giss has any title, it is one which could only be asserted and decided upon, in a court of equity. But on a trial at law, it is sufficient for the plaintiff to produce his patent, and thus to clear away all legal objections which may be made to it, on the ground of a non-performance of the conditions, on which the patent was to issue. As to an outstanding equitable title in a third person, if any such existed, it can afford no shelter whatever to the defendant in this ejectment.

If, then, the lessor of the plaintiff had a legal title to this land, at the time at which this suit was instituted, the only remaining question is, whether he is entitled to a verdict for damages, that title having since expired? The cases referred to by the plaintiff’s counsel, prove, that where the term expires before the trial, so that the plaintiff cannot recover the possession, he may proceed for damages for the trespass, and for mesne profits. No contradictory authority has been mentioned by the counsel for the defendant, but they have contended, that since, upon the general principle of law, trespass quare clausum fregit, will not lie by a disseisee, before he has made an actual entry, the plaintiff cannot convert an ejectment into an action of trespass, and demand damages without making the like proof. The answer to this argument is, that in this action the entry has been confessed, and this confession is sufficient for every purpose, unless where an actual entry is necessary to complete the plaintiff’s title to the land. That this confession is sufficient to entitle the plaintiff to recover damages and mesne profits, is evident from the consideration, that in an action for mesne profits, where the confession has been made, it is sufficient for the plaintiff to produce the verdict and judgment, without proving either a title to the land, or an entry under the judgment. But where the judgment is obtained by default, an entry must be proved. 6 Bac. Abr. 625. As to the amount of damages, the jury are the only proper judges; there is no general rule, and the quantum depends on the circumstances of the case.

Verdict for plaintiff, for one dollar damages.