Jackson ex dem. Atwood v. Douglass

Curia, per Sutherland, J. The governor, as such, has no authority to sell, or contract for a sale, of the unappropriated lands of this state. That power is entrusted to the commissioners of the land oÓice. The person administering the government is ex officio, one of those commissioners ; but he possesses no greater power than any other member of the board. (1 R. L. 292. 1 Greenleaf, 280.) The commissioners are authorized to direct the form of the patent to be issued. But whatever the form may be, the sale and the patent are efficacious, only as directed by, and emanating from the commissioners. The mere signature of the governor does not afford the requisite legal evidence that the patent is approved of by the commissioners. The statute has not declared that such shall be its effect; and there is nothing to show that the commissioners, (admitting it was competent for them to do it,) ever constituted the governor their agent or representative for that purpose. Having no authority, therefore to sign th,e patent to Metcalf, under whom the defendant claims, until it was approved of by the commissioners ; and it not appearing that it was so approved till the 27th of July, 1790, when it passed the secretary’s office; it is immaterial whether it was in fact, signed by the governor when it bears date, or not. But the legal presumption is, that his signature and the affixing of the great seal, to the patent, (which I understand to be what is meant by passing the secretary’s office,) were contemporaneous acts. This would also appear to have been the fact from inspection of the patent, if the signature and certificate in the original patent were placed as they are by the copy given in the case. [461] From what time, then, is .this patent to Metcalf to take effect ? From its date in August, 1786, or from the time when it actually issued or passed the secretary’s office, in July, 1790 1 It is said by the court, Heath v. Ross, (12 John. 141,) that “ according to the usage and practice of the secretary’s office, the patent is dated at the time when the grant is ordered by the commissioners of the land office; and this must be taken to be the time when the contract for the grant was made.” What the evidence of the usage was, in that case does not appear. None is stated. , I cannot suppose it to be so notorious that the court would take notice of it without proof. And, with great respect, I should have entertained very serious doubt, whether evidence of usage would have been admissible, if objected to. The deputy secretary of state is, by law, declared to be clerk to the commissioners of the land office; and it is expressly made his duty to enter the minutes of their proceedings, and to keep the same in the secretary’s office in proper order, with the papers and documents which may be presented to the board. (1 R. L. 292, s. 2.) The application for the patent, therefore, and the order of the commissioners that it issue, must appear upon the minutes of their proceedings on record in the secretary’s office. Those minutes certainly afford evidence of a higher character, as to the time when the patent was ordered to be issued, than the mere date of a patent, in a case in which it is admitted that it did not actually issue when it bears date. The date may have been erroneously inserted in the patent, either by accident or design. It may have been an error in transcribing, or have occurred in a variety of ways, each of which is more probable, than the supposition that it was intended to designate the time when the contractfor the land was made. The defendant, therefore, I apprehend, fails in laying a foundation for the doctrine of relation for which he contends. He does not show a previous contract to which the act that consummates his title, is to relate, and from the date of which, it is, by relation, to take effect. [462] I do not therefore, deem it material to inquire, whether Zephaniah Platt was a privy, so that the doctrine of relation would apply to this case, if there were no other objection to it. It is a fiction of law ; and is never to be adopt-e¿ when third persons, who are neither parties or privies, are to be affected by it. (3 Cowen, 80, and the cases there cited. 12 John. 141.) I am, therefore, of opinion, that the patent to Metcalf can take effect only from the time when it appears to have been approved of by the commissioners, and to have passed the secretary’s office; and, consequently, that the motion for a new trial must be denied. New trial denied.