APRIL TERM, 1770.

Lib. D. D. No. 16. fol. 526.

#### William Hath’s Lessee *against*James Polk.

EJECTMENT for a tract of land lying in *Somerset*County, called *Long*Guile.

At the *Somerset*Assises, held in *September,*1769, the following point was saved for the opinion of the Court, viz.

In this cause, the plaintiff, in order to shew his title to the tract of land called *Long Guile,*in the declaration mentioned, gave in evidence to the Jury, an escheat *patent to*the lessor of the plaintiff, which was granted him for the want of heirs of a certain *James*Johnson. The defendant by his counsel objected to the operation of the same, as the plaintiff failed to shew the original grant to the said *James Johnson*for the aforesaid tract, on which the escheat patent was founded. Which point is agreed by the counsel to be saved and argued at bar.

And the Jury found by their special verdict, that *William*Hath, the lessor of the plaintiff, obtained his Lordship’s grant for the lands in the declaration, bearing date the 29th of *September,*1763, which grant recited, that *James Gray,*of *Somerset*County, by his petition to the agents for the management of land affairs within the Province, set forth, that there was escheat a tract of land called *Long Guile,*originally granted to a certain *James*
      *364
      *Johnson*for 50 acres, who died thereof possessed, intestate and without heirs, by which means the same is become escheat, and the petitioner being the first discoverer, pray-ed to be admitted to purchase a special warrant to resurvey the same, with liberty of adding any contiguous vacancy j and that, on return of a certificate of resurvey, he complying with all requisites might have a grant thereon, which Was granted him, and accordingly a warrant, on the 7th of August, 1745, issued. In pursuance of which a certificate was returned into the land-office, dated 19th *Septem*ber■, 1745. That on the 19th of September, 1745, he assigned all his right in the certificate to *William*Hath, to whom the present grant is made, who has since paid and satisfied to the agent and receiver-general the sum of 5/. sterling caution for the same.

They also found, that the defendant, on the 19th day of August, 1752, also obtained his Lordship’s grant for the .tract of land called *Addition to Smith’s*Hope, reciting, that *James*Polk, of *Somerset*County, by his petition to the agents for the management of land affairs, set forth, that there was escheat a tract of land called *Long*Guile, in the County aforesaid, originally granted unto a certain *John Johnson*for 50 acres, who died possessed thereof intestate and without heirs, by which means the same became *escheat;*and he being desirous to purchase the same, (be it escheat by the means aforesaid, or by any other ways or means whatsoever,) prayed a special warrant to resurvey the said land, with liberty of adding any contiguous vacancy, and that, on return of a certificate of resurvey, he paying such reasonable price as should be agreed upon for the purchase of the said escheat, making good right to the vacancy added, and complying with all other requisites usual in such cases, might have a grant thereon, which was granted him, and accordingly a warrant on the 19th of March, 1749, issued, in pursuance of which it was certified to the land-office, that the aforesaid tract or parcel of land contained the quantity of 50 acres, and there is the quantity of 170 acres, of vacant land added, for which *365.■said escheat and vacancy, the said *James Polk*paid and satisfied the agent and receiver-general, as well the sum of 10/. sterling, being the money agreed upon for the purchase of said escheat, as the sum of 8/. 10s. sterling cau* tion for said vacancy, which, added together and reduced into one tract, was granted under the name of *Addition to ■Smith's Hope.*

They also found, that the defendant, in consequence of the said grant to him, entered and was possessed; and being so possessed, on the 2d day of April, 1754, by deed of bargain and sale conveyed to *William*Hath, the lessor of the plaintiff, a part of *Addition to Smith's*Hope, which part is laid down on the plats as being part of *Long*Guile. They further found, that the said *William*Hath, after the said purchase from *James*Polk, on the 18th of February, 1763, the said *William*not then having obtained his grant on the certificate of survey of *Lbng*Guile, paid to the agent and receiver-general the sum.of *Si.*sterling as the purchase-money for the escheat lands, as also the sum of 1/. *17s.*for eighteen years rent then due on the same, on payment of which he obtained his grant, fkc.

Goldsborough, for plaintiff.

The case, briefly stated, is this: In 1745, *James Gray*escheated a tract of land called *Long*Guile, as granted to *James*Johnson, returned a certificate in 1745, which he assigned to *William*Hath, the plaintiff. In 1763, *Hath*paid the purchase-money, and *for*eighteen years back rents, and obtained a patent in September, 1763. In 1750, *James*Polk, the defendant, escheated the same land as originally granted to *John*Johnson, returned a certificate, paid the purchase-money, and obtained a patent in 1752, and afterwards, in 1754, conveyed part of the land to *Hath.*The only question, then, for the consideration of the Court, is, whether the patent to *William*Hath, of the 29th *September,*1763, shall have relation to the certificate in 1745,. and is an elder title than the grant to *James Polk*in *175%.*
      *366Though the plaintiff has not produced in evidence a patent to *Johnson,*the original grantee, yet the recital in the patent to *Hath,*of the patent to *Johnson,*is evidence sufficient against the Lord Proprietary, and those claiming under him. *Gilb. Evid.*99, 100. The recital of a lease in a deed of release is good evidence of such lease against the releasor, and those who claim under him; but to others it is not, without proving there was such a deed. *Salk.*286. 6 *Mod. 45.*2 *Lev.*108, 109. Where there are divers acts concurrent to make a conveyance, «the original act shall be preferred, and the others shall have relation to it. 18 *Vin. Abr.*tit. *Relation,*290. pi. 8. *Wm. Jones,*421. 428. The execution of all things executory respect the original act, and shall have relation thereto, and make but one act, though done at several times. *Cro. Jac.*512. 10. *Go.*49. In the case of deeds of bargain and sale, the enrolment has relation back to the delivery of the deed. *Hob. 165.*2 *Inst. 675.*2 *Cro.*643. *2 Burr.*1134. The defendant’s warrant should have been a proclamation warrant of escheat. The part conveyed by the defendant to the plaintiff, in *April, 1754,*is not in dispute. If it were in dispute, the deed cannot operate but as an estoppel as to the part conveyed by it. *Co. Litt.*352. It is not material when the money was paid to the Lord Proprietary. It has been established that younger grants relate to elder certificates, and it is in the very nature of relation to divest an. intermediate estate and to prejudice third persons. *Vent.*198. 200, 201.

*Hall,*contra,

Admits the general rule of relation, but contends that this case must be distinguished. If the rule were to be taken strictly, the defendant’s grant would have relation to the original certificate of *Johnson.*He puts the case of grants, interfering with escheat grants. A person may either take up escheat land by an escheat warrant, or by a proclamation warrant on the escheat; in this case, the de*367fendant chose to take up the land by an escheat warrant. He escheated the land for want of heirs of *John*Johnson, and the plaintiff escheated for want of heirs of *James Johnson.*Relation is a fiction of law, always accompanied with equity to support a right, and not to work a wrong-. *Co. Litt.*150. 3 *Co.*29. b. 13 *Co.*20. b. Relation will not divest an estate which had been lawfully vested. 3 *Co.*29.2 *Vent.*198, 199. *Show.*298. *Vin.*Abr. tit. Relation, 293. pi. 6. Hath the plaintiff relinquished his claim, by not compounding within two years? If a person takes out a warrant for land, has it surveyed, but chooses not to compound and obtain a grant for it, is the Lord Proprietary for ever to be precluded from granting that land to another ? The contract between the plaintiff and the Lord Proprietary was not complete, by the taking out of the warrant, and the surveying of the land; it could not be considered as complete, till the purchase-money was paid. When the plaintiff paid the *Si.*purchase-money, in *1Y63,*the Proprietary had nothing then of *Long Guile*to grant, a grant of it had already been made to the defendant, and the purchase-money paid by him. If a grant, by letters patent under the great seal, be pleaded and shewed forth, though the defendant cannot plead *nul tiel*record, but as it is in the nature of a conveyance, he may deny the operation of it, he may plead *non*concessit, and prove in evidence, that the King had nothing in the thing granted. *Co. Litt.*260. a. 12 *Mod.*200. As to the practice of this Province, no such case as this, has ever before happened in our Courts. There have been instances of trespasses after a certificate, and before a grant was obtained thereon, in which the question about elder and junior grants has occurred ; but he recollects no instance of a case similar to the present, having been decided.

*368Goldsborough, in reply.

Relation will work a wrong, cites *Vin. Abr.*tit. Relation* 287. 293. pi. 1. He admits, that where an estate has been lawfully vested, relation will not divest it. *Co. Litt.*150. a. 3 *Co.*29. b. The defendant is not a stranger, but he is a privy in estate. He might have prevented the plaintiff from obtaining his grant, by a *caveat*in the land-office.

The Provincial Court gave judgment upon the special verdict for the defendant.