Lee v. Hoye's Lessee , 1 Gill 188 ( 1843 )

Stephen, J.

delivered the opinion of this court.

During the trial of this case, several exceptions were taken to the opinions of the court below, upon which it becomes the duty of this court now to decide. The plaintiff to support the issue on his part joined, offered in evidence certain certificates and extracts from the books of the land office, for the purpose of shewing title, in the respective persons named in said papers, to the respective lots of land, to recover which this action was instituted, at the time said papers and entries were made; to the sufficiency of which extracts from the books of the land office for such purpose, the defendant objected, on the ground that said extracts did not furnish sufficient evidence to prove that said lots of land had been allotted to the respective persons therein named by the commissioners, so as to vest the legal title to said lots in said persons respectively; but the court was of opinion and so instructed the jury, that the said extracts were legally sufficient for the purpose for which they were offered; to which opinion and instruction the defendant excepted; and whether in that opinion there was error, it is now necessary to determine.

By the act of 1788, chapter 44, it was made the duty of the commissioners to distribute the lots in controversy among certain officers and soldiers by lot, and to endorse the name of the officer or soldier on the ticket, containing the number drawn by such officer or soldier; and the law provides that thereupon, an estate in fee simple should be' vested in the officer or soldier in such lot, without any patent, deed or grant, to be issued for that purpose: a legal estate in' fee therefore vested in the officers and soldiers by operation of law, without any further evidence or muniment of title to be' furnished by the officers of government for that purpose. The law directing the distribution, also provides that the commissioners shall make a record of all the lots by them distributed among the said officers and soldiers, and return the same to the Register of the Land Office, to be by him safely kept. The said law also recognises the validity of the books, in which-are entered the certificates of all the lots distributed as' aforesaid, ascertaining and defining their respective boundaries and locations. From these books and the record returned into the land office by the commissioners, the certificates and extracts offered in evidence were taken and certified by the register of the land office, and we are of opinion that they were good and sufficient evidence lor the purpose for which were offered. So far as the question of title was involved, they were by law invested with all the legal properties and attributes Of a patent, and were therefore competent and admissible evidence; the certificates of the register embracing every thing which the records of his office can furnish in relation to the title and ownership of such lots.

The plaintiff then in addition to the preceding evidence, offered in evidence an escheat patent for the land for which the ejectment was brought, and there rested his casé; relying upon the same as legally sufficient, together with the evidence in the first bill of exceptions to vest the legal title of the land, for Which the suit Was brought, in him, and to entitle him to recover; but the defendant objected to the sufficiency of the patent for that purpose^ on the ground that it did not appear on the face of the patent whose lands were escheated, nor were any of the facts or circumstances set forth to shew that said lands were liable to escheat; but the coUrt overruled the objection, and were of opinion that the patent was legally sufficient to vest the title in fee in the plaintiff in the lands it purported to convey, and that therefore the plaintiff was entitled to recover.

In this opinion of the court there was no error, so far as thé same was objected to by the defendant. In 2 H. & J. Rep. 126, the principle is stated to be, that an escheat grant is prima facie evidence of title, and is available for that purpose until the contrary is proved. It is not necessary dr usual according to the practice of the land office, to state On the face of thé patent whose lands w’ere escheated, of the facts or circumstances which shew the lands were eschéatable. Where a warrant regularly issued, has been executed by the proper officer, and a certificate returned, which has laid a sufficient time in the land office without caveat, to justify the emanation of a grant, it is but a fair, reasonable, prima facie presumption, that the land taken up was escheatable, and that the title passed to the grantee. But the court erred in that part of their opinion, in which they declared that the plaintiff was entitled to recover all the land covered by the patent, as well that part which was escheated, as that which had been taken up as vacancy. It appears by the proof in the case offered by the plaintiff himself, that lot numbered 1225, had been allotted to a certain John Kidd, which was taken up and included in his patent, as vacancy.

We think there was no error in the opinion of the court in the third bill of exceptions. The lots were distributed to the soldiers in 1789, in virtue of the act of Assembly passed for that purpose, and South Bar was patented on the 2nd March 1805, a period of time too short to warrant a presumption of the death of the holders of such lots, without heirs, under the circumstances of the case; there being no proof moreover that the soilders ever resided on the lots, or in the neighborhood where they were situated, or any evidence offered of any facts or circumstances on which such a presumption could be properly founded. But such a presumption at all events, ought not to be made in support of a title, acquired in violation of law and the rules of the land office, which require two-thirds of the value to be paid to the State, before a title can be obtained in lands liable to escheat, and which also require that a warrant of resurvey should be founded upon a seisin in fee, in the lands upon which the resurvey is to be made; neither of which essential conditions appear to have been complied with in the case of the patent for South Bar.

We think there was no error in the opinion of the court in the fourth bill of exceptions. The possession of the defendant of the lots in controversy was only a partial one, and that for so short a period as ten or fifteen years, with a general claim of title, was too short a period to warrant the presumption of a conveyance of the lots to the patentee of South Bar, as prayed for by the defendant. For the reasons above stated, the judgment of the court below is reversed and a procedendo ordered.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.