MAY TERM, 1769.

Lib. D. D. No. 15. fol. 489.

#### John Carvill’s Lessee *against*Arsinah Griffith.

EJECTMENT for a tract of land called *CarvilVs Adventure,*lying in *Kent*County.

At the. trial of this cause at *Kent*County Assises, *September,*1766, the Jury found by their special verdict, That his late majesty *Charles the Erst, on the*20th of June, in the eighth year of his reign, by his letters patent did grant and confirm unto *Cascilius Calvert,*then Baron of *Baltimore,*in the kingdom of *Ireland,*and to his heirs and assigns,. the Province of *Maryland,*under the boundaries in the letters patent specified and expressed; together with all and singular the like and as ample rights, jurisdictions, privileges, prerogatives, royalties, liberties, immunities, royal rights and franchises, of what kind soever, temporal as well by sea as by land, within the country, isles, islets, and limits aforesaid; to have, exercise, use, and enjoy the same as amply as any Bishop of *Durham*within the Bishoprick or County Palatine of *Durham,*in the kingdom of England, had at any time theretofore had, held, used, or enjoyed, or of right ought or might have had, held, used, or enjoyed. That the said *Cacilius Calvert,*late Lord Proprietary of the Province, afterwards, by his letters patent, did grant unto a certain *William Tol$on*and his heirs a tract of land lying on the eastern side *298of *Chesapeake*Bay, on *FendalPs*Creek, called *Eagle’s Nest,*whereof the land in the declaration is parcel. The patent, dated the 3d July, 1663, recites the grant to be made jn consideration of said *Tolson’s*having transported into the Province six persons in 1661, upon the terms and conditions of plantation of the Province, dated the 2d *July,*1649, and the 22d September, 1658. That *afterwards*the said *William Tolson*entered into the said tract of land with the appurtenances, and was thereof seised as -the law directs, and, so seised, died without heirs. That on the 4th of January, 1724 — -5, a certain *Benjamin*Griffith, the grandfather of the defendant, having obtained an escheat warrant to escheat the aforesaid tract of land called *Eagle’s Nest,*in virtue thereof he caused the same tract of land to be resurveyed, a certificate thereof to be returned into his Lordship’s land-office, by the name of *Benjamin’s Purchase,*of which survey the land in the declaration is parcel.' The warrant is dated the 14th *July,*1724, and recites, that “ Whereas *Benjamin Griffith*had set forth, “ that *Michael Miller*and *Christopher Geist,*on the 16th “ *September,*1723, had set forth, that there was escheat “ a tract of land called *Eagle’s Nest,*originally, on the 3d “ *July,*1663, granted to *William Tolson*for 300 acres, “ who afterwards died possessed without heirs, by *“*which means the same became escheat unto his Lord- “ ship, and that they, being the first discoverers thereof, “ prayed to be admitted to its purchase, and also a special “ warrant to resurvey the same, with liberty to include the “ surplus land therein contained, and to add the conti- “ guous vacancy, (if any,) and that, upon a return of a “ certificate, &c. they might have a patent, &c: And ac- “ cordingly, warrant issued on the 16th *September,*1723, “ for that purpose, all whose right, &c. of and in the said “ warrant, &c. they did, on the 8th of *July,*1724, assign, “ &c. to the said *Benjamin Griffith,*who, in like manner, “ and by virtue of the assignment, prayed a warrant on “ the same conditions, &c. The surveyor was therefore “ directed to resurvey, for and in the name of the said *299“ Griffith, the said escheat land,” &c. That the surveyor, by virtue of said warrant, on the 4th *January^*1724 — 5, resurveyed the said land accordingly. That the said *Benjamin Griffith*did not pay the caution money for the said land, nor obtain his Lordship’s patent on the said survey. That afterwards, on the 22d of February, 1750, *John Carvill,*the lessor of the plaintiff, obtained an escheat warrant, founded on his Lordship’s proclamation, agreeably to his Lordship’s instructions to the Judges of the land-office,(a)*300to affect the said certificate of *Benjamin's*Purchase, in virtue whereof the said *John Carvill*caused the said land called *Eagle’s Nest*and *Benjamin!s Purchase*to be resurveyed, and a certificate thereof to be returned into his Lordship’s land-office, by the name of *Carvill’s Adventure,*and afterwards obtained his Lordship’s patent thereon to him the said *John Carvill*and his heirs by the same name, whereof the land in the declaration is parcel, which patent is dated the 4th of May, 1752, and, after reciting the facts set forth in the warrant to *Benjamin*Griffith, of his noncompliance, and the granting the warrant to *John*Carvill, and certificates returned, recites, that, “ In pursuance “ whereof it is certified into our land-office, that the said “ tract of land is resurveyed, by which it appears, the same “ now clear of elder surveys, contains no more than the “ quantity of 90 acres, and that "there is 87 acres of va-' *301*a*caney laid out for the said *Carvill,*by virtue of the said *(i*warrant, (in two separate plats, by reason of elder sur- “ veys interfering with the said escheat and vacancy,) for “ which said escheat, the said *Carvill*has paid and satisfied “ unto *Benjamin*Tasker, Esquire, our president, agent, “ and receiver-general, for our use, the sum of 12/< 14<s. “ *6d.*sterling, being the money agreed upon for the pur- “ chase of said escheat, and also as well the sum of 4/. *7s.*“ sterling, caution for the said *87*acres of vacancy, as the u sum of I/. 15s. *0d.*sterling, for the improvements men- “ tioned to be made thereon, according to Charles, Lord “ Baron of Baltimore, our great grand-father of noble me- “ mory, his instructions to *Charles*Carroll, Esquire, his then “ agent, bearing date at *London,*the 12th September, 1712, *11*and registered in our secretary’s office of our said Pro» “ vince, together with a paragraph of our instructions, bear- “ ing date at *London,*the 15th *December,*1738, andregister- “ ed in our said land-office.” That the tract called *Eagle’s Nest,*and the land in the declaration mentioned, was located and bounded as located and bounded by the plaintiff on the plats returned in the cause.

That the said Lord Proprietary on the 1st day of *August,*1673, did grant unto *Casar Prince*and *John Powell,*the tract of land called *Eastern Neck,*to them and their heirs. The patent recites, that “ in consideration that the “ said *Prince*and *Powell*hath due unto them 200 acres of “ land, part of a warrant for 400 acres granted to the said “ *Prince,*the 1st of *October,*1672, and the one-half of “ which warrant was assigned by the said *Prince*to the “ said *Powell,*agreeably to the conditions of plantations, “ dated 2d *July,*1649, with such alterations as hath been “ made by the declaration of 22d *September,*1658.” That the said *Casar Prince*assigned all his fight and title to the said land to *John Powell*and his heirs, from whom the defendant deduced a regular title, by conveyance and descent. That the land for which the said *Arsinah Griffith,*the defendant, has taken defence on the plats returned into Court, is parcel of the said tract of land called *Eastern**302*Neck,*and that the same land is located, and bounded as the said defendant has located it, upon the plats and certificates produced and filed in Court, and taken in this cause. That the said defendant at the time the action was commenced, and at the time of the finding of the verdict, was actually seised and possessed of the land, for which she takes defence in her demesne as of fee, as the law requires. That the same defendant, and those under whom she hath derived her title, have been in possession, and had actual seisin of the said land, for which she takes defence upwards of sixty years, and have ever since constantly paid the quit-rents thereof to the Lord Proprietary.

Note. It appears by the plots filed in the cause, that the lands called *CarvilPs*Adventure, for which the suit was brought, as located by the plaintiff, contained 80 acres; that the defendant took defence for that part of *Eastern Neck,*contained within the said location by the plaintiff, of *CarvilPs Adventure,*and which part of *Eastern Neck,*is said to contain 80 acres. *Eagle's Nest,*as located by the plaintiff, includes that part of *CarvilPs , Adventure,*for which the ejectment was brought, and is said to contain 300 acres. *Eastern Neck,*as located by the defendant, is said to contain 500 acres.

At the trial of the cause, the following objections were filed, viz.

An objection was made at the Assises, that the record sent down, was materially bad; for that it appears upon the face of the same, that there was no *ouster*alleged by the plaintiff’s lessee, to have been made by the defendant in the first part of the declaration, and that the writ and declaration are materially variant, which is agreed by the parties to be a point saved, and no advantage to be taken of a verdict, but that the matter is to be determined, upon the same principles of law as it should have been at the As-sises upon the objection.

*303Note. By the writ is supposed the caption of the declaration, and the part objected to, was as follows: “ *Ar-*•“ *s'mah Griffith,*late of *Kent*County, planter, was attach- “ ed to answer unto *William Seekright*of a plea, wherefore, “ with force and arms, *he the said*William” (instead of she the said Arsinah,) “ into,” See.

Another objection was also made upon the plaintiff’s producing and offering in evidence, the patent for a tract of land, called *CarvilPs Adventure,*for part of which tract this ejectment was brought, because upon the plat the plaintiff hath not laid down the whole tract to shew that the said part in the ejectment mentioned, was part thereof, and therefore not to be read in evidence to the Jury.

G. *Garnett,*for plaintiff, *on the special*verdict*

The Jury finding the defendant in possession does not prejudice the plaintiff, unless it be found that he was disseised ; for it is within the rule that where two are in possession of lands, the law adjudges the possession to be in him who has the right. *Perk.*sect. 218. *Go. Litt.*181.'a. *Plow.*233. *Bridgm. Rep. 57.*

*W.*Paca, on the same side.

There is a good title found for the plaintiff, and the - question is as it regards the defendant’s title ; 1st. As to the operation of the grant to him, 2d. As to his possession. The grant to the defendant is junior to the original grant, and the Proprietary having granted the land before, he could not again grant it, without its having,first revested in him. 11 *Mod.*150. *Shep. Touch.*245. 12 *Mod.*200. *Cro. Eliz.*402. 1 *Inst.*265. a. sect. 446. Where a material fact is not found, or is ambiguously expressed, the Court will not intend it. 1 *Show.*539. 2 *Lilly's*Reg. 649. *Cro. Car.*521.

*304*S. Bordley,*junior, contra,

Does not controvert their rules, but will explain them. 1st. Possession is a good title against all but those who' have the right. 2d. The plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s. The argument of Mr, *Paca,*that an ambiguous finding cannot be supplied, will operate against them, it not appearing when *Tolson*died.

*Johnson,*same side.

It is immaterial whether there is a title or not in the defendant, it not appearing that *Tolson,*the original patentee, was dead; it does not appear that *Carviil*could have any interest, for without the finding of the death of the original patentee, it does not appear that the proprietor had any thing to grant. 21 *Fin. Trial,*408. pi. 3. As to finding that *Tolson*died seised, is inconclusive, it not appearing *when*he died, and therefore he might be living when the escheat patent was granted. He apprehends gentlemen will contend that the time of *Tolson’s*death appears by the recitals in the grants, but this not being expressly found, the recitals cannot avail. 5 *Bac.*39. ■ The recitals in the grant might have been evidence to the Jury, but could have no other effect.

*Paca,*in reply.

Where facts are found, the Court will determine upon the operation of law as to those facts. And it appears from the finding, if *Tolson*was just born at the time of the granting of the original patent, in 1663, he must have been at least 89 years of age in 1752, the time of the granting of the escheat patent; and the Court will, in point of law, after this length of time, adjudge him dead. *Gilb. Evid.*102. Verdict in many instances taken by intendment.

*3051 *Cro.*515. 878. *Carter,*80. *Trials per pais,*276. 289.

2 *Mod.*127. *Hob.*262. 54, 55.

«S'. Bordley, junior, for defendant.

The court cannot intend facts, and it being found that *Tolson*was once living, his death cannot be intended, and the length of time was only inducement proper for the consideration of the Jury. 2 *Roll.*461, 2. this case. Nothing to be intended. *Faugh. 75.*

*T. Johnson,*same side.

This is not a question of evidence, which was the point in the case cited out of *Gilbert,*and the authority was only to prove, under what particular circumstances the Court would dispense with the presence of a witness, and admit a lesser degree of evidence. *Co. Litt.*28. a. It does not appear from their argument but that he might have heirs, though it should be admitted that the law would adjudge *himself*dead, yet the presumption cannot extend to his heirs, and that they are dead, as the line of descent may continue much longer.

*Garnett,*for plaintiff.

It is found on the face of the verdict, that *Tolson*died without heirs, and *afterwards*the grant was made to *Car-mil,*and though the patent to the defendant, is set forth between the dying seised, and the grant to *Carvill.,*yet the word afterwards refers to the whole.

It appears from the notes of this trial, by T. *Jenings,*Esquire, that,

*The Court*(present *G. Stewart, B. Hands,*and *J. B. Bordley)*were unanimous, that the finding was sufficient, and that the word *afterwards*referred to the whole. That,

The counsel for the plaintiff, on the overruling of this point against them, were about to speak as to facts found *306in the verdict in general, but were prevented by the Court, who refused to hear any more of the matter, as the coun* sel had not opened the several points at the beginning, Mr. *Bordley*dissenting.

Mr. *Jenings*makes the following note. “ At the “ opening of this cause, Mr. *Jenifer*(one of the Justices) “ left the bench, alleging that there would be an impro- “ priety, in his setting to determine a matter, where the “ proprietor’s interest was so deeply concerned; as he held “ the office of agent. This conduct, it was apprehended, “ gave great umbrage to the other Judges, and was their “ reason for not suffering the cause to be further argued.”

By the record it appears that the Provincial Court gave judgment on the special verdict for ihe plaintiff. The defendant appealed to the Court of Appeals.

At *April, 1772,*this cause was argued in the Court of Appeals: present his Excellency *Robert Eden,*Esquire, Governor, the honourable *Benedict Calvert, John Ridout, John Beale Bordley, George Stewart, William Fitzhugh, William Hayward, George Plater,*Esquires.

*Johnson,*for plaintiff in error,

Considers only the effect of the grant of *Eastern*Neck, to *Casar Prince,*and *John Poxvell,*upwards of 100 years ago. The grant recites, that they have due to them two hundred acres. The consideration of the grant, was 200 acres due to them, being palatines, according to his Lordship’s instructions. The seisin and possession, under this tide, is found to have continued upwards of sixty years. Grants of the crown are generally upon two considerations. *4 Bac. 210.*1st. For the encouragement of the subjects in rewarding services. 2d. Those made on a valuable consideration, as money, &c. whereby the crown is enriched. Those grants receive different constructions, where the grant is only voluntary; if the crown be deceived, the grant may be void, for it is to be supposed the crown would not have granted, had all the circumstances been *307known, and if the party is stripped of his property, where the grant is merely voluntary, he is left in the same cireumstances, but if he pays a valuable consideration, the case is otherwise. The charter was granted to the proprietor, with a view to colonization, and for that purpose a land-office was established, for disposing of these lands, anti people were invited over to purchase them; therefore the construction of the king’s grants, and those of the proprietor, should be very different. The old cases of resuming grants, are not to be relied on at this time. In the reigns of *Henry*VIII. Elizabeth, and the Stuarts, it was the spirit of the times to construe grants nicely, in order to vacate them, and the crown resumed grants unjustly, to reward their favourites; but since the abolition of tenures, and the introduction of the excise, the crown not having the same power to grant lands, there are few instances of a resumption. *Bro. Pat. 72. Plow. 455. Fin. Prerog. R. B.*pi. 2. If the king is not deceived by the party, but by his own surmises, it shall not vitiate the grant. 2 *Bac.*210. Every allegation of the party will not make the grant void, if not true; but if the grant be made on that suggestion only, and would not otherwise have been made, it would avoid it. A false suggestion of the party, shall not in all cases vitiate, if the suggestion is not material. 1 *Mod.*195. There is no false recital in the grant to *Prince*and *Powell.*It is alleged, they had two hundred acres due to them; if the fact was otherwise, the Jury should have so found it, which, as they have not done, the allegation must be taken for truth. As, to the instructions to the Judges, the Court in their judicial capacity, cannot take cognisance of them, and therefore they are found on the verdict. Further, if the suggestion were not true, it is immaterial, for there is no circumstance, which if disclosed, could with reason have induced the Proprietary to withhold this grant; at least there is no such circumstance appearing, that he was prejudiced by this grant, for it is not set forth that escheat land, at that time bore a higher price than other land, and it would be contrary to every principle of legal reasoning, *308to argue from probability and conjecture. There is no fraud found in the mode of obtaining this grant, therefore none can be presumed. If the proprietor had in consideration of one penny, given land generally, there is nothing to shew that the proprietor did not mean to grant cultivated land, or land liable to an escheat, nor is there evidence or facts found, to induce an opinion, that if the proprietor had known this land to be escheat, that he would have refused this patent. Formerly it was usual, and in many instances it now often happens, that a warrant is delivered to the surveyor, to be executed without the party ever seeing the land; if then the surveyor has improperly executed the warrant, it was a fraud in him and not in the grantee; and it would be unjust the party should suffer for the fault of the officer. The conditions of plantations varied by the instructions to the officers, which Courts of Law cannot take notice of. If a non-compliance with land-office instructions, is to vitiate a grant, it will in a great measure destroy all modern patents. Suppose the surveyor runs into elder surveys ; that small spots are left out; that a few rotten fence logs are not returned on the certificate; that a seisin in fee is alleged, when it is only an estate tail 5 and that the grant contains more land than is returned by the surveyor ; by supposing all these circumstances to arise from the act of the party, and this act is to be construed fraudulent, the grant will be void, and the proprietor have a right to resume the lands. The Lord Proprietary does not grant land on the mere suggestion of the party ; he has his own officers to inform him of the nature and circumstances of the land, and the information of the Proprietary’s officers is essential to the obtaining of a grant. It ks a rule, that whenever the great seal is put to a patent, it passeth the legal interest, and if a Court'of Law has a right to examine into the consideration of those grants, it would destroy great numbers of them. And if a grant purchased for a valuable consideration, could be declared void in a Court of Law, the consequence would be that the *309consideration would be lost. Suppose a contest to arise in the land-office between two persons, who should obtain the grant; the matter is heard by the Proprietary’s officers, and a patent is obtained by one, the other is dissatisfied with the judgment against him, enters on the land, and an ejectment is brought against him by the person in whose favour the grant issued, and when he produces his grant in support of his title, the other produces evidence to shew that the consideration of the grant was bad, and that the conditions of plantation had not been complied with, and thereby defeats the title of the plaintiff, and relies upon the possession. Or suppose a dispute arises only about the extent of bounds, to settle which an ejectment is brought, She party comes into Court expecting that his boundaries only are in dispute, and after a warrant of resurvey has issued, he might be taken by surprise, by his adversary’s making the cause turn on a different point, by contesting the validity of the grant, on account of the consideration, or on account of its having been obtained by surprise from, the Lord Proprietor. The consideration of the grant can be examined into only in a Court of Equity, which has a power to give adequate relief, where there has been a gross fraud in obtaining it. See *Vernon’s*case, 1 *Vern.*277. If the grant was vacated in Chancery, that Court would order the consideration to be refunded, and might order a further sum to be *paid;*they would take into consideration the length of possession, and that there were other persons claiming under the grantees, as purchasers for a valuable consideration. The construction of grants here, ought to be agreeably to the local circumstances of the country» The argument drawn from inconvenience, is held to be a forcible one by all the old lawyers; therefore, if a person claims title as heir to the person dying last seised, it is sufficient on the principle of convenience ; for it would be impossible in many instances to prove the regular descent. This point has been determined before, in the case of *Spalding*and Reeder, decided in the Provincial Court, in *310the year 1751, and in the Court of Appeals, in 1753,(a) and finally in the Court of Chancery, in the year 1755. *Reeder*objected to *Spalding’s*grant, he having included vacant land in a résurvey made by a common warrant; and it is clear from the determination of this case, both in the Courts of Law and Equity, that the fraud cannot be considered at law, and if there is no proof of the fraud in equity, a non-compliance with the private instructions given to the Judges of the land-office, shall not destroy the grant. The case of *Spmkling*and Reeder■ is stronger than the one under consideration, the warrant there being to survey only 200 acres, and the surveyor returned 207. and as this was a recent ti'ansaction, the Court knew the prevailing rules for its construction; but the grant in question is a very ancient one, and it is a rule established, that grants are to be expounded according to the existing laws at the time, but it is not now known what were the laws at that time respecting escheat warrants, but from the continuance of this patent, it never having till lately been called „in question, there is the strongest presumptive evidence, it was regularly obtained.

Hall, on the same side.

There are two points to be considered; 1st. As t* the effect and operation of the grant, to *Prince*and *Powell»*2d. As to the effect and operation of 'the escheat patent, granted to the defendant (in error.) Their grant is still in force, but the grant to the defendant is void, the land not being escheatable in the year 1752, when the patent was granted to *Carvill.*The Lord Proprietary in 1752, had a proper tenant in possession of the land, from whom he had received rents for a considerable time. There is a distinction to be made, in considering the doctrine of es-cheats between the disseisor, and those who are tenants by’ *311title, as if the disseisor dies, and the land descend, or in case where a feoffment is made by the disseisor, though an acceptance of rent from the first wrong doer, will not bar the escheat, yet the acceptance of rent from others will. ' Of the nature of an escheat, and where the Lord shall be barred, see 2 *BL Com.*244. 1 *Black. Lazo*Tracts, 193, These authorities shew that the escheat happens, where the land cannot descend, *propter defectum sanguinis*; but how can there be said to be a defect of blood, when the lands have been in the appellant’s family for upwards of sixty years, and there is still a proper tenant in possession. That the Lord cannot enter for an escheat, where there is a descent or feoffment, see *Brook. Ab~.*‘265. b. sect. 20, 282. sect. 5. *Co. Litt.*268. a. 1 *Roll. Abr.*816. The distinction he supposes will be made to consider the Lord Proprietor, in *loco regis*is of no force in this instance. The Lord Proprietary is to be considered only as the Lord of the fee. That Lord *Baltimore*does not consider himself as having privileges commensurate with those of the crown, is evident from his resuming the grant “ *3Iy u Lady’s Manor”*in Baltimore, on the principle that it was void, being made by the proprietor to his wife ; whereas, such a grant from the crown to the queen would be good. The powers and privileges given by the charter, do not transfer any royal rights to the Lord Proprietary, but only such as might be exercised by the Bishop of *Durham ¡*therefore it will be needless to cite cases to shew the general prerogative of the King; but the authorities should be confined to the privileges exercised by the Bishop of *Durham*only. See the case of Sir *fames*Lowther, and the Duke of Portland, on the doctrine of *nullum*tempus, where the Court were so cautious of admitting the title of the crown, after the estate had remained so long in the *IJortland*family, though no grant could be shewn, that they thought it more prudent to determine the matter on a collateral point. The King as to an escheat for failure of blood, is considered only as a feodal Lord, but where the escheat is *propter*delictum, he is considered *312as having a regal title. In the first case it is called an escheat; but where there has been a crime committed it is called a forfeiture. *Wright’s*Tenures, *115.*If the doctrine of *nullum tempus*be applied to escheats, the utmost inconvenience will ensue; for the terms of the escheat patent are, “ be it escheat by any ways or means whatso- “ ever.” So that, if a party has been in possession of lands for one hundred years, and another obtains an escheat patent, he would be entitled to the lands by shewing that they had been escheatable at any time; and unless the. party in possession could trace his title regularly from the first grantee, he would be in danger of losing his property. The Marquis of *Winchester's*case, in 3 Coke, 1. *Hob.*242. was determined in the reign of Elizabeth, when prerogative was at its height. It would be inconvenient in *England,*if a different doctrine were to prevail; and it must be remembered, that, according to the best definition of prerogative, it is an extraordinary power vested in the crown for the benefit of the subject.

*Taca,*for the defendant in error.

If his Lordship had been acquainted with the whole of the circumstances, he might have refused the escheat patent ; but having granted the land, and an interest having vested in a fair purchaser, it must be considered on strict, legal principles.

The four points made on the other side are,

1. That the descent cast bars the escheat.

2. That the acceptance of rent also bars.

3» That the length of time also bars.

4. That this being a Common Law Court, it cannot inquire into the consideration of the grant.

That the grant of the King where he is deceived, shall not bind him, and this benefit and privilege arises from a supposition that he is always employed for the benefit of .his people, *vide*4 *Bac. Abr.*210. *5 Co.*94. 6 *Co.*29. *Jenk. Rep.*304. 10 *Co.*109. 1 Ld. *Raym.*49. .People know the *313terms on which they may secure lands; if they did not know they should inform themselves, as they take the grant at their peril. The application for the warrant comes from the party who wishes to take up land, and if he applies for a common warrant, he contracts for common vacant land; and when the certificate is returned, a grant passes of course on a presumption that he has pursued his contract. The party here contracted for common vacapt land, and located the common warrant on escheat land; this was a breach of his contract, and a fraud committed on his Lordship by depriving him of his revenue. If a common warrant issues, the location of it is at the election of the party; the surveyor does not locate warrants without directions from the party holding the warrant. If he gives a false direction to the sheriff, and takes up another kind of land than he is authorised to do by his warrant, it is at his own risk, and it is a fraud upon the Lord Proprietary, because he is induced, by the suggestion of the party, to take a less compensation for the grant. The proprietor is bound, with respect to common vacant land, by his proclamation or instructions, which are recited in the grants on common warrants,, but there is no such recital in the grant of escheat lands, there being at that time no instructions respecting them, and the Lord Proprietary had a right to what he thought was the value of the land, and therefore might have set his own price upon it. In the case of lands taken up on common warrant, the kind of land taken up by the warrant is the act of the party. But the certificate returned is the act of the officer, and, if he includes in the survey more land than the party pays for, the proprietor is bound by it. As to the argument, that the fraud and imposition do not appear on the face of the grant; the fact is otherwise, it being apparent that the patent issued on a common warrant for vacant land, and not for escheat land. The descent cannot bar the Lord Proprietary. The king is not barred of his land by a descent cast. A descent is the transmission of the freehold from die ancestor to the heir, and must have a subject to work *314upon. The law which gives a title by descent, in case of a common person, is founded on two reasons; as a punishment for laches, and to protect the heir, and have the righttried by an action at law. Wherever a person claims under a descent, and sets up that descent to take away an entry, it supposes a tortious entry or disseisin. *Co. Litt.*237. s. 385, 386, 387. There can be no disseisin of the King, and therefore a dying seised cannot affect him. There are two reasons why the King cannot be disseised; 1. Because a disseisin is a matter *in*pais, and nothing can, pass from the King but by matter of record. 2. The king cannot be disseised because he is chief lord of the fee, or lord paramount, and a difference is to be observed between the chief lord of the fee, and a lord of the manor. Further, there can be no disseisin without a tenure; but no person can hold in the same manner as the King enjoyed his property. 2 *Bac. Abr.*98. *Co. Litt.*1. 65. *Wright’s*Tenures, 58. *Bro.*tit. *Disseisin,*241. pi. 4. 10 *Co.*112, 2 *Leon.*31. 1 *Burr.*109. All landed property was. originally in the crown, and is now held of the King. If one subject disseises another, the disseisor stands in the same relation to the crown as the disseisee did. The King holds *injure coronas,*and if he can be disseised, of whom would the disseisor hold. As to the case of the *Marquis of*Winchester, 3 *Co.*2. they mistake the right of Lord *Norris*for that of the King. The King never was seised, Lord *Norris*having such a right only as could not escheat or be forfeited at common law, and the act of attainder did not mean to give any thing but what he might so take. There was no disseisin of the King ; but by the defective recovery, the entry of *Norris*was taken away, and, with respect to him, the Marquis of *Winchester*was in by title.

It is found that *Tolson*died seised; they cannot pretend that he was seised only of a naked right j there is nothing found of a descent to *Tolson’s*heir, or any other circumstance, to shew the land could not escheat if the freehold was not in the Lord Proprietary at *Tokon’s*death. *315and they must, contrary to law, suppose the freehold in abeyance ; the same answer applies to the case in Hobart, 242. It may be asked, if there are no-descents found on the verdict. To this it may be answered, that those descents were after the land escheated, and no subsequent descent can prejudice the Lord Proprietary, he being actually seised of the lands on *ToIsoji's*death without heirs? and the lands were afterwards obtained by a palpable fraud and deception. There is a distinction between a descent to prevent the escheat to a common lord, and to the King; for the reason of the first is on account of laches, which can never be imputed to the King.

In the next place, it is to be considered, that the King is not affected by length of time. He is not bound by the statute of limitations. 4 *Bac. Abr.*200. 11 *Co.*68. *Hob. 347. Plow.*143.

As to the objection, that the consideration of this grant cannot be inquired into in a Court of Law. In matters of fraud this Court has a concurrent jurisdiction with the Court of Chancery. The Common Law Courts may vacate the King’s grant; the great difficulty generally\ is to come at the facts. Here the facts are found, and the Court has jurisdiction. 1 Burr. 396. *Cary's Rep. 45.*The King, by virtue of his prerogative, may elect to proceed in what Court he pleases. 4 *Bac.*202. 4 *Inst. 17. Plow.*243. ■ 10 *Co.*109. *Jenk.*304. 5 *Co.*94. 6 *Co.*29. 10 *Co.*10. 1 LcL *Raym.*49, 50. 1 *Vent.*17.- 1 *Co.*52. 2 *Co. Dodditigton's*«ase. Where were the King’s grants considered before the astablishment of the Court of Chancery ? It is reasonable, when the fraud appears on the grant, or by the finding of the Jury, that it should be considered in a Court of Law, - because the presumption arising from the solemnity of a contract in favour of the party obtaining it, is destroyed by the circumstance of fraud appearing. The case of *Spalding*and Reeder, in the Provincial Court, was very different from the present case. *Spalding*obtained a common warrant for 200 acres. He took up 207 acres, including four acres of cultivated lands. The attempt there *316was to destroy the patent as well for the uncultivated as the cultivated part, which was unjust and disallowed, Had a proceeding been instituted to set aside the present grant to the plaintiff in a Court of Chancery, there could have been no relief, for the Chancellor cannot vacate the patent in part, as the seal must be taken off from it; but they do not encounter these difficulties in a Court of Law, as it may be adjudged that nothing passed, as in the common case where lands lay foul, the junior grant shall be expounded so as not to pass land included in elder surveys. In the case of *Spalding*and Reeder, the fraud was *dehors*and not apparent; therefore this extrinsic matter could not be given in evidence: but here the fraud appears oh the patent. The case of *Anderson*and *White*went off because the Court would not make a partial repeal.(a)

In the next place, the Lord Proprietary possesses the *jura regalia*of the crown. That the Proprietary, *quoad*this Province', is a Count Palatine, and a Count Palatine is entitled to all the *jura regalia*of the crown. *Fin. Abr.*tit. Courts, 574. s. 2, 3. 6. 8. 1 *Bac. Abr.*633. 635. *1 Bulst.*160. 3 *Bulst.*156. 4 *Inst.*204. 206. 216. Davis5 *Rep.*60. 62, 63. From these cases it appears, that a Count Palatine has all the *jura regalia*of the crown, both in respect to jurisdiction and seigniory. It may be objected, that the Lord Proprietary may be considered as having the *jura regalia*in regard to his jurisdiction, but not in regard to the seigniory; and he supposes the 5th clause in the charter may be relied on as limiting the *jura regalia*to jurisdiction only. The tenure under the charter is of free and common socage ; that of a Count Palatine is a tenure » by knight-service, held of the King’s person; that of the proprietor is like that of the Castle of *Windsor.*Royal seigniory is not held by Counts Palatine by reason of the dignity of' knight-service, for all subjects may hold in the same manner. The *dominium regale*is the absolute pro*317perty in the land contrasted with the use or particular enjoyment of it, and a man may be said to possess *dominium*as to others, though not against the King. Formerly all tenures were *in*capite, but the tenants *in capite*could not claim any dominion against the King. The tenures in socage were less humiliating, as the tenant was not obliged to personal service. The King may, on each tenure, grant *jura regalia*against all but himself; and royal seigniory cannot depend on any particular tenure. For sdgniory and tenancy are inconsistent; the one is supremacy, and the other inferiority. If the case were otherwise, the tenure would destroy the seigniory.

It may be objected, that the statute *Quia emptores*ter*rarum*affects the case, and that one cannot grant lands to hold but according to the terms of that statute; and if that were the case, all alienees under him must hold of the King. And it may be urged, that the King cannot dispense with an act of parliament; but this statute does not bind the King, and this act was made for the benefit of chief lords, and such lords may renounce the benefit given them, under the rule *Quilibet potest renuntiare juri pro se intro*ducto'. 5 *Bac. Abr.*36. 4 *Bac. Abr.*199. *Fitz. Ff. B.*486. 210. *Bro. Abr.*Tenure, 165. 11 *Co. 63. Co. Lift.*s. 140. If the argument held good, the lord would lose all the right of escheat, which would devolve upon the King.

The next point is, whether the King has dispensed with the statute, and empowered the Lord Proprietary to reserve on his grants what services he pleases *;*if he has, the Proprietary must have *jura regalia*as to the seigniory; and that the King has given such power is evident from the 18th section of the charter. The clause mentioning *£ such and so great services, &cc. as to the same now Baron of “ Baltimore, his heirs and assigns, shall seem fit and agree- “ able, and not immediately of us, our heirs and successt sors,” mean such services as may be reserved on the tenure created by the proprietor’s grant to his tenants. They hold of him *in*capite, but any service may be rev *318served on this kind of tenure. If the Lord Proprietary is at liberty to reserve such 'services as he pleases, he may certainly make his tenants hold of him, in which case he -yvill be entitled to escheats, &c. as appendant to his royal seigniory. Suppose the matter doubtful, it should be construed in favour of the proprietor. *Fid.*Charter, s. 22. This is mentioned on a supposition that the argument will be urged on the other side. The Lord Proprietary is entitled to *jura*regalia, in respect to his seigniory on other reasons, for he has a right as well to crown as to feudal escheats. Feudal escheats revert to him by reason of the tenure, and he takes them as a common Lord ; but crown escheats or forfeitures, are paramount the creation of the tenancy, and when they revert, he has them in virtue of such seignioiy. Suppose that the soil only was granted to the proprietor, he could not claim crown escheats, which shews he does not claim them as feudal Lord. If the King could hold as paramount, the seigniory of his lordship would be extinguished, and unless the proprietor claimed these lands in virtue of his seigniory, his title would, on escheat, become extinct, *ergo*he stands *loco regis.*Fin. *Ahr.*tit. Tenure, 240. pi. 3. 210. pi. 9. *Bro. Ahr.*Parliament, 77. 2 *List.*64. Suppose a man commits treason, and the land escheats, the Lord can only claim as governor, and not as Lord of the fee. In *Davis’s Rep.*the royal seigniory was inferred from royal escheats. *Fid.*63. There is no case-in the books, where the jurisdiction and soil are in the same persons, that it does not draw royal seigniory after it; and being entitled to royal seigniory, he cannot be disseised, as disseisin is an act *in pais.*

In the next place the Lord Proprietary has a right to escheats, in virtue of his jurisdiction, and to be equally protected in them from descents on this reason, as in respect of his seigniory. In all trials for landed property, it is necessary to shew a title from the proprietor ; and the reason why the practice of shewing a grant from the Lord Proprietary, prevails in our Courts, is because no one can *319claim against him by disseisin, and if any one enters on his Lordship’s land, it is an intrusion. 2 *Bac. Abr.*98. 1 *Burr.*109. He cannot be divested of his land but by record. It was objected at the last hearing, that perhaps upon the argument, as the King can only take by matter of record, and the same principle applying to the proprietor, an office should have been found, entitling the Lord to his escheat. But this is under the distinction, that where a person is possessed, an office is necessary, but if there be no one in possession, no office is necessary. 4 *Co.*58. 9 *Co.*96. Considering the proprietor as a common Lord of a Manor, the disseisins and descents found, are not of such a nature, as to bar the escheat; a descent to bar the escheat, must be after an actual disseisin; for if the party die, and the land descend, the entry may be taken away, but not the escheat. The person dying without heirs, must have been disseised. The reason why the descent to the heir of the disseisor bars the escheat, is, that there is a tenant by title, to perform the feudal services, but where the Lord himself is disseised, the reason fails, there being no tenant. This evinces that descents being found after the escheat, if it has any effect to give a title, it must be by a disseisin of the Lord; but it has been shewn the Lord cannot be disseised. 2 *Roll.*Abr. 512. In the present case, possession was found in *Tolson*at the time of his death, and immediately on his ■ death the possession being vacant, the land vests in the Lord. The Lord not being barred by any descent found in this case, there not having been a disseisin before the descent cast, immediately on the death of *Tolson*without heirs, the title of his Lordship commenced. \!

Johnson, in reply.

The rule of decision in this case, ought to be with a view to the ease and security of the people, and also to the particular circumstances of this Province, independent of any feudal considerations. Property must be enjoyed, and *320secured by rules which, promote a general convenience, and although an argument from particular inconvenience to an individual, ought not to be regarded, yet arguments drawn from géneral inconvenience are most forcible, and this should be the leading principle in the enacting of the laws of every community. He agrees that the grant would, not have passed, if the Lord Proprietary or his officers, had been acquainted with the circumstances; but it will not do for the public to depend on the generosity of either. The rule of construction in avoiding the King’s grants, as appears in 1 Raym. 149. is, where there is falsehood expressed to the prejudice of the King: this rule applied here, at once determines the controversy in favour of the plaintiff, for there is no false suggestion appearing; it is only expressed, and that by the proprietor himself, that the grantor had due to him 200 acres. The only fraud assigned is the non-compliance with the Lord Proprietary’s instructions, to the judges of the land-office ; but these cannot be taken notice of judicially. If the Court were to consider them, and was to ground their decision upon them, in case of an appeal to England, these instructions would not be considered, and so there would be a different judgment upon the same record, founded on different evidence. The gentlemen argue from the act of the officer, and of the party; but this Court as private individuals may know something about the manner of locating warrants, but as a Court they cannot take notice of it. The Jury by finding the grant, do not find the recitals to be true. *5 Bac. Air,*323. [^u. if not 319.] The argument, that the proprietor was defrauded in his revenue, is inconsistent with the allegation, that there were no particular terms allotted for escheat lands, and in the infancy of the country, it is reasonable to suppose they were not estimated higher than other lands, therefore there was no prejudice to the Lord Proprietary. This supposition is strengthened by the act of Assembly, for granting deserted lands, *[^¡tecere if the act of 1704,*c. 58. s. 3. and *4. is meant.] It*is more than probable that in the early settlement of the Province,, *321escheats were so seldom, and of such small value from the great quantity of lands there was then to be granted, that no instructions were given to hold them up at a higher price than common vacant land. In the case of *Johnson*v. Howard, Mr. *Paca*contended, that fraud could not be presumed, it not being found. It is not found here; it must therefore be taken for granted that this patent was fairly obtained. The case of *Spalding*and *Reeder*has not been answered; for where the King is deceived in his grant, the books say it is absolutely void; but there is no force in the reasoning that if a man demands too much, he shall not have that which he is justly entitled to, and therefore that could not be the reason of the miscarriage of the suit, but it was the principle before assigned. The case of *Anderson*and *White,**(a)***is not truly stated, for he drew the bill, and well remembers it did not go off on that objection *;*all fraud was denied, and length of possession was insisted on.

(a)

 The following are the instructions referred to in the special verdict, viz.

The Lord Proprietary’s Instructions to the Judges of the Land-Office, dated 6th *November,*1725.

*Maryland,*sc. By the Honourable Charles Calvert, Esquire, ©overnor and Commander in Chief in and over tire Province of *Maryland.*

A PROCLAMATION.

Whereas several persons have applied to his Lordship’s land-office, for special warrants to take up lands cultivated and improved, which, according to the conditions of plantation, could not be affected by common warrant, and others, upon discovery of lands escheated to his Lordship, have also taken out escheat warrants, which warrants have been generally obtained by persons pretending to have made a discovery of the said lands to entitle them to the pre-emption thereof as a reward and encouragement for such discovery, and, having obtained such warrants, have either delayed the execution thereof, or only returned certificates of their surveys, wholly neglecting the paying his Lordship any consideration for his lands for a considerable number of years, contrary to the true intent of granting such warrants, and have thereby hindered such as would gladly take up such lands, and pay his Lordship for the same. His Lordship, therefore, for the better establishing a more regular method of proceeding in relation to escheat and special warrants in his land-office, and to prevent any persons being surprised by his instructions to *Philemon Lloyd,*Esquire, his Judge in land affairs, dated the 19th of *November*last, directed a proclamation to be immediately issued, intimating that all persons pretending right unto lands within this Province, upon certificates, grounded upon special warrants, that they should pay the conditions thereof in a certain limited time, and take out their grants thereon, on pain of being re*300fused such grants on failure thereof. These are therefore in his Lordship’s name to publish and make known unto all persons obtaining spe_ cial warrants for lands escheatable, surplus land, or lands otherwise reserved by conditions of plantations, that if they do not, within two years next after the, date hereof, come and pay and satisfy unto his Lordship, his agents, or other persons by him appointed to receive the same, such price as has already been, or shall thereafter be agreed, upon for all such escheat or forfeited lands, and shall pay the composition money for surplusage, and make good rights for all vacant lands that shall be added to former surveys, and also pay for the improvements made thereon according to the nature and import of the sundry warrants and certificates of survey grounded on the same, and likewise shall sue out grants thereon within the time limited as aforesaid, that then his Lordship hereby declares, that he will recall his former acts of favour as to the land warrants granted as aforesaid, and the certificates of resurveys made thereon, and doth hereby subject such land to the benefit of the next discoverer, as if no such resurvey had been made, and all warrants whereon 'the certificates of such resurveys were grounded, are hereby, declared to be null and void, as if "said warrants had never been granted. Whereof his Lordship’s agent and secretary, and all others concerned, are charged to take particular notice. Given at *Annapolis,*under his Lordship’s great seal at arms, this sixth day of *November,*in the tenth year of his Lordship’s dominion, &c. *Anno Bom.*1725.

Cha. Qalvert.

(a)

 Vide *ante,*the case of *Spalding*and *Reeder, September*Term, 1751.

(a)

 See *Anderson*and *Whitey September*Term, *1703.*

(a)

 See *ante,*the case, *September*Term, 1763.

It has been said that the King has an election to sue in what Court he pleases; but that is no argument, to say that the grantee of the King has the same privilege, for the King cannot communicate or assign it even by express words ; but the rule is *vice versa,*for where the King purchases lands of a subject, he shall hold it without any diminution of his privileges ; but the subject cannot partake of them in any grant of lands from the crown.

The Court of Appeals at *February*Term, 1772, reversed the judgment of the Provincial Court.