SEPTEMBER TERM, 1763.

#### The Attorney-General, at the relation of John White *against*John Anderson.

MOTION to dissolve the injunction issued to stop the execution of a judgment, obtained at law by the defendant’s lessee, against the relator at *September*Term, 1760, for a tract of land called *Bedford,*except twenty-five acres laid out for Princess *Ann.*

The substance of the case is as follows:

On the part of the complainant it is alleged, that from the first settlement of the Province, the Lords Proprietaries have granted the rough uncultivated lands on very easy terms on common warrant; but when lands have been cultivated, or have been once granted, and have reverted, the terms have been higher, and the method of proceeding different. That one *Croutch,*about the 25th of *April,*1664, obtained a grant of the land called *Croutch's*Choice; that *Croutch*entered under the grant, and made valuable improvements, and afterwards died without heirs, by which event the land fell to his Lordship by escheat; *220that one Stevens, under a common warrant for 10,000 acres of vacant uncultivated land, prohibitory of the surveys running- into an elder grant, took up the said land in the j'ear 1679, under the name of Beckford, and assigned to *Hotvard;*that *Howard*conveyed to Dent, from whom the land descended to his daughter and heir at law, and from her to the defendant; that afterwards, in 1748, one *Anderson*took up 254 acres, part of *Croutch's*Choice, by an escheat warrant, under the name of *Anderson's Adven*ture, for which he paid 36/. 14s. *6d.*sterling; that the relator is entitled to 140 acres, part of the adventure by purchase, under the escheat grant; that in the year 1758 the relator obtained, under an escheat warrant, a further grant for 58 1-2 acres, part of the first named land, by the name of *White's*Adventure, for which he made composition, and in 1755, obtained an escheat warrant for the residue of *Croutch's*Choice, and in 1757, obtained a grant for 66 acres by the name of *White's Security.*The proceedings at law are then set forth, &c.

On the part of the defendant it is set forth by admission, that the grant was made to *Croutch;*but the defendant does not admit or deny the facts of *Croutch's*entry, improving and dying seised, or *Stevens's*survey being on common warrant. That the rents have been always paid for *Beckford;*that *Howard*and *Dent*were fair purchasers on valuable consideration; that if there was any fraud committed originally, which is not admitted, it ought not to affect a claim under an honest and fair purchase, after so long an acquiescence and an acceptance of rents. The defendant denies that *Beckford*contains such part of *Croutch's*Choice, as the relator contends ; that he believes the original taker up of Beckford, was unacquainted with the lines of *Croutch's*Choice, and, therefore, interfered, without any design of fraud upon the Proprietary; that the taker up of *Anderson's Adventure*had notice of the defendant’s title, and was, at the time of the survey, the defendant’s guardian. He alleges notice of his title to *White*before he purchased.

*221The plot in the ejectment is referred to and made part of the proceedings.

The substance of the argument of *Hall*and Goldsborough, on the part of the defendant, was: That there does not appear to hare been any fraud committed by the taker up, or that he got the land upon easier terms than it might have been obtained on an escheat warrant j that the probability is, that the interfering in the survey was owing to mistake, which often happens in such old surveys, and that when *Beckford*was surveyed, there is no reason to apprehend that uncultivated land was held higher merely because it had beexr before granted, and it does not appear that there was any improvement; that if there had been any fraud committed by the taker up, it had been purged by the subsequent fair purchasers, without notice; *1 Eq. Abr.*333. sect. 1. Siderfn, 153. 2 *Fern.*384. *Godb.*161. That the objection only lay to part, and a small part, of Bedford, and that the patent could not be vacated in part, nor in the whole, when the irregularity happened only as to part; that Anderson, the taker up, was to be discountenanced, from the circumstance of his being guardian to the defendant when a minor, and that *White*came under him with notice.

*Johnson*on the other side : That the method of the application by bill was proper; 1 *Fern. 370. 378.*that the Proprietary having *jura regalice*by the charter, is to be considered on this matter in the royal capacity. That the cases cited are answered by this, that the patent was originally void, *Freeman’s Rep.*172. and what is void cannot afterwards, by subsequent circumstances, be made good. That the whole patent ought to be vacated, since the difficulty in vacating part proceeds from the party’s act.

*Reply.*That if the whole of a patent ought to be vacated, because part of the land granted was surveyed contx-ary to the terms of the warrant, almost all the grants in *Maryland*would be destroyed, because it is notorious that very few surveys are made clear of other grants; that the *222act of 1758 shews in what light the Legislature has constdered guardians taking advantage of their wards;

*JDulany.*As this matter came to a hearing, on motion t0 ^^sso^ve an injunction, I conceive that most of the points advanced cannot now be properly considered.

Whether the land was cultivated, or not, does not certainly *appear;*if it was not, I think it would be hard to maintain, that there was that kind of deceit, or fraud committed in obtaining a grant so long ago, especially after purchases, and so long an acquiescence, as would afford a foundation for vacating the grant. On the contrary, as long possession carries with it a presumption of right, I. think there is an evidence, arising from that circumstance, that the land Was not cultivated, if the being in that state is a supposition to be made in the idea of right. The possession being the only evidence in the case, at present, and the transaction being so remote, that the defendant could not be acquainted with it, I conceive that in the present state of the cause, it is to be taken that the land was not cultivated. If the land was not cultivated, it is hardly to be imagined that a fraud could be intended, or that the Proprietary was injured, because, at the time when *Beckford*was granted, the mere circumstance of its having been before surveyed in part, could hardly have raised the price.

If there had been such a fraud originally committed as would have made the grant void, a purchase subsequent without notice would not have altered the case.

If it were not too early, there, I think, might be well made another point, viz. whether the taker up of *Anderson! s*Adventure, ought not to be considered in equity as a trustee for the defendant, he being then the defendant’s guardian, and inasmuch as the answrer swears that *White*came in with notice, whether, he would not be subject to the trust. Vid. 1 *Domat.*tit. Tutors, from 248 to 264. ■ 1 *P.*Wins. 705. 2 *P. Wins.*107. 122. *Faugh.*181. 183. That a guardian is a trustee. 2 *Chan.*Ca. 245. *Finch’s Rep.*450. 2 *Fern.*480-

The injunction was dissolved and the case was, at *May*Term, 1769, entered abated.