#### *Nichols and Others v. Covey, &c.

June, 1826.

Patent — Prior Claim Included in its Courses — What Passes.† — Where a patent is issued in pursuance of the-Act of 1788, (2 Rev. Code, 434,) which includes in its general courses, a prior claim it does not pass to the patentee the title of the Commonwealth in and to the lands covered by such prior claim, subject only to the title, whatever it may be, in the prior claimant; but, if that title is only a prior entry, and becomes vacated by neglect to survey and return the plat, any one may lay a warrant on the same, as in other cases of vacant and unappropriated lands.

Commonwealth Warrant — Purchase of. — The purchase of a warrant from the Commonwealth, and an entry in consequence thereof, is not a purchase of the land itself, until the entry is carried into grant.

This was an appeal from the Superior Court of Law for Montgomery county, where Nichols and others brought ejectment against Covey and others, for a messuage and five hunderd acres of land. Issue being joined, the jury found a special verdict to the following effect; that a grant issued to Nichols on the 28th day of March, 1796, for 45,000 acres, by a survey dated 12th of June, 1795, with this exception, that “the survey, upon which this grant is founded, includes 6,800 acres of prior claims (exclusive of 45,000 acres) which, having a preference by law to the warrant and right upon which this grant is founded, liberty is reserved that the same shall be firm and valid, and may be carried into grant or grants, and this grant shall be no bar in either law or equity to the confirmation of the title or tiles to the same, as before mentioned and reserved, with the appurtenances:” that on the 18th of April, l7¿9, Hall and Graison' made an entry in the surveyor’s office of Montgomery county, for 100 acres of land, and the. grant issued to Nichols above mentioned includes within its boundaries the land contained in the aforesaid entry: that Hall, one of the persons mentioned in the entry aforesaid, withdrew the said entry, and made an entry to include the said land, in his own name: that there was no survey made on the first entry aforesaid in the name of Hall and Graison: that on the 10th of February, 1809, a survey was made on the entry made in the name of Halt: *that on the 10th of April, 1815, a grant issued to Godby, to whom Hall had assigned his entry: that the land contained in the last mentioned grant lies within the boundary of the grant issued to Nichols, the lessor of the plaintiff, and is the land in controversy: that Godby and Covey were in possession of the land contained in the grant issued to the said Godby, on the 19th day of November, 1819: that the surveyor of Montgomey county, in platting out the 6,800 acres of prior claims mentioned in the first mentioned grant, took into estimation the claim of the said Hall and Graison to the land in their entry as aforesaid contained: that the 500 acres of land, in the declaration mentioned, is part of the land contained in the grant aforesaid to Nichols, and includes the land in controversy, &c.

The Court gave judgment for the defendants, and the plaintiffs appealed.

Leigh, for the appellant.

No Counsel, for the appellee.

*

The President and Judge Cabell, absent.

†

See principal case cited in Carter v. Hagan, 75 Va. 560; Harman v. Stearns, 95 Va. 69, 70, 27 S. E. Rep. 601; Patrick v. Dryden, 10 W. Va. 416; Bryan v. Willard, 21 W. Va. 72; Stockton v. Morris, 39 W. Va. 447, 19 S. E. Rep. 535.

June 13.

JUDGE COALTER

delivered! his opinion.

The question in this case is, whether a parent, issued in pursuance of the Act of 17á8, (2 Rev. Code, 434,) which includes in its general courses a prior claim, is to be considered as passing to the patentee, the title of the Commonwealth in and to the lands covered by such prior claim, subject only to the title, whatever it may be in the prior daimant; so that if that title, as in the case before us, is only a prior entry, subject to be vacated by neglect to survey, and return the plat, as is also this case, no one can enter therefor, as in other cases of lands so becoming vacant and subject to future entry and patent; but, that the patentee of the inclusive survey, is to hold the same against all the world, save the prior claimant, and the particular right under which he held. *In the case before us, the prior claimant forfeited the right he then claimed by, and again re-entered, surveyed, and obtained a patent for the same land, for which the inclusive patentee has brought his ejectment, claiming to recover the land under his patent issued as aforesaid. If any other person had a right to enter for this land, after the original claim became vacated as aforesaid, it was equally competent for the original claimant, as it was for the patentee of the inclusive grant, to do so.

The Commonweatlh, although she has sold and received payment for the warrant, by which an entry is made, has never sold the land which is covered by it, until the entry is carried into grant. The warrant may, at any time, be withdrawn, either before or after the entry becomes vacant as aforesaid, and may be again applied, either in the purchase of that, or any other vacant and unappropriated land. No taxes can be charged for such land, until it is granted to some one by patent. Why is it then, that the Commonwealth shall not be at liberty to sell, and receive payment for, and collect taxes on, lands included within the bounds of such patent, but reserved out of the grant, remaining Unpaid for by the *147inclusive patentee, and for which he is in no wise chargeable for taxes? It cannot arise from any equity in the Statute in his favor. He says he will not pay for it, or subject himself to pay taxes for it, because the Commonwealth cannot grant it to him; and therefore he desires that it may be reserved out of his grant, and that he may pay only for the residue, and be taxed accordingly. The law in relation to surplus lands applies to cases where the patent has issued for the whole tract, and can only be extended to this case, on the postulate that the whole passed; but, that is the question first to be decided. There may be no mistake or fraud in the surveyor in this case; no surplus land, if this prior claim is excluded; and that remedy on behalf of the Commonwealth, can only be applied within a given time, and under particular circumstances. The law, too, under which this patent issued, *was soon found to be productive of frauds and mischiefs, and was consequently repealed; so that I think a very liberal, or what might be called an equitable construction, ought not to be given to it. The party gets all the land he paid for, or for which he is chargeable for taxes, and ought to be satisfied.

I think, therefore, that the judgment should be affirmed.

The other Judges concurred, and the judgment was affirmed.*

*

The President absent.