ORDERED, that in future, the several surveyors return several plots on warrants of resurvey issued out of this Court; that is to say, one for the Court, two for each gallery, and the other two for each party; and that the word “ two” in the warrant be altered to *Jive,*

*187SEPTEMBER TERM, 1751.

Lib. E. J. No. 14. fol. 11.

#### Thomas Spalding’s Lessee *against*Thomas Reeder.

THIS was an ejectment for a tract of land called *Spalding's Adventure,*lying in *Saint Mary’s*County, contain» ing 207 acres. Verdict for the plaintiff.

At the trial of this cause, the plaintiff, in order to prove the issue on his part, read to the Jury a grant under the great seal, of the lands in question, which grant was dated the 24th of *August,*1742, and recited that it was macis 44 in consideration that *Thomas Spalding,*of *Saint Mary’s*44 County hath due unto him 207 acres of land within our 46 said Province, 100 acres thereof, by virtue of a warrant 64 for that quantity, granted him the 15th *March,*1739. 44 100 acres more thereof, by virtue of a warrant for that 44 quantity, granted him on the 5th of *April,*1740, and the 44 remaining seven acres by paying the sum of seven shil 44 lings sterling, caution for the same, as appears, &c. 44 and upon such conditions and terms as are expressed 44 in our conditions of plantation of our said Province, 44 bearing date 5th of *April,*1684,(a) together with such 44 alterations as in them is made, by our further conditions, 44 bearing date 4th *December,*1696, together also with 44 alterations made, bearing date 12th *December*1712. 44 Also, &c. 15th *December,*1738.”

Whereupon the defendant in order to shew that the grant was void, offered to prove by witnesses that part of the land contained in the grant, being part of the land in dispute, and contained within the plaintiff’s pretensions on the plots filed in the cause, was at the time of taking up and *188granting the said land, cultivated; but the Court refused-such evidence being given for such purpose, and admitted the grant conveyed to the plaintiff a right to the lands therein mentioned. The defendant excepted to this opinion and appealed to the Court of Appeals.

At *May*Term, 1753, the Court of Appeals affirmed the judgment of the Provincial Court.

Borclley, Darnall, *I. Chase*and *Clark*for appellant.

*Dorsey*and Dulany, for appellee.

(a)

**See *Kilty’s Landhelder,*book 1. cap. 6. p. 113.

Note. In the case of *Carvill's*Lessee v. Griffith, at *April*Term, 1762, in the Court of Appeals, *T.*Johnson, in his argument said, that in the case of *Spalding*and *Reeder,*the warrant was to survey 200 acres, but the surveyor returned 207 acres. And as the determination was on a recent grant in 1742, the Court knew the prevailing rules for its construction. That Lord *Coke*says, Courts are to give such construction as prevailed at the time of the grant.

*William*Paca, in his argument in the same case, says, that in the case of *Spalding*and Reeder, *Spalding*obtained a common warrant for 200 acres; he took up 207 acres including four acres of cultivated lands, the attempt there was to destroy the patent, as well for the uncultivated as the cultivated part, which was unjust and disallowed. In that case the fraud was *dehors*and not apparent, therefore the extrinsic matter could not be given in evidence.

T. Johnson, in his reply, says, 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 have been the reason of the miscarriage of the suit, but the principle before assigned. See the case of *Carvill*v. *Griffith,*at *May*Term, 1769.

*189A CASE.

*Benjamin Boyd*obtained a *common*warrant from the land-office dated 22d June, 1738, which he located on cultivated land, and returned a certificate dated 14th *November,*1738. *Nicholas Vandemon*obtained a *special*warrant dated 17th *October,*1739, which he located on the same land, and returned his certificate dated 19th October, 1739, and a patent issued the 12th *December*following. *Boyd*afterwards discovering that his *common*warrant would not affect the *cultivated*land, petitioned the Judges to vacate the certificate he had returned, and to grant him a special warrant, which they did, dated the 29th *October*1739. He returned a certificate on the 2d of *November*following, which was *caveated*in the office by the above mentioned *Nicholas*Vandemon, who had already obtained a grant for this land, and on á hearing the *caveat*was adjudged good. The matter rested thus until 1763, when *Thomas*Boyd, the grandson of Benjamin, procured from the surveyor’s books a copy of the above certificate, which had been vacated as aforesaid; with this he applied to the office and obtained a patent, under colour whereof he claims to hold the land. *Shiestion.*In whom is the legal title of this land ? If in Boyd, can the persons claiming under *Vandemon*be relieved in equity ?

OPINION.

I think the legal title is in the person who claims under-the elder certificate. I remember the point was determined in’the case of *Reeder*and *Spalding,*in the Provincial Court and Court -of Appeals, and in consequence thereof, there was an information in the Court of Chancery to vacate *Spalding’s*patent, in a similar case, *Spalding*having obtained a patent on a certificate upon a common warrant, when the land was cultivated.

*190The above facts being pi-oved, the fraud will I think be a ground for an information, on *scire*facias, and I have no doubt but the patent may be vacated. When the objection to a patent is made in a Court of law, it is, because it is void, and to be *void;*being considered as a sort of record,the fraud ought to appear *in the patent;*when the fraud arises on circumstances *dehors*the grant, it has been considered as voidable, and therefore that some suit ought to be instituted for its vacating. This was the distinction, and it always prevailed whilst I was in the practice.

Daniel Dulany,

10th *March,*1768.