Jackson ex dem. Smith v. Marsh

Curia, per Woodworth, J. The plaintiff gave in evidence at the trial, a patent to the lessor of the plaintiff, x ... . dated the 1 Qth of June, 1823, for subdivision no. 2 ; beginning at the south east corner of the survey 50 acres: from thence giving certain courses and distances, and in- ° ° eluding 135 aeres. The case states, that the action was brought to recover ’ ° _ subdivision no. 2, in lot no. 50, in the township of Sem282 pronius ; and that the defendant was in possession. It appeared by a map and certificate of the surveyor general, admitted as evidence, that lot no. 50 had been subdivided into several lots, of which lot no. 2 was one ; that the map had been filed in his office ; and that subdivision no. 2, as represented on the map, was, on the 23d of March, 1818, sold to the lessor by the surveyor general, acting on behalf of the state. By the act of 1813, concerning the commissioners of the land office, (1 R. L. 296, s. 17,) it is declared, that if any tract of land sold under the act, was occupied and improved on the 17iA of February, 1809, to the value of $25, the occupant of such improvement shall be entitled to recover the value thereof from the purchaser ; and the commissioners of the land office are inhibited from causing letters patent to be issued, until satisfactory proof be produced, that the purchaser has satisfied the occupant for his improvements. In this case, it appears that a contract, under which the defendant claims, was given for 50 acres, being a part of subdivision no. 2 ; and that before February 17, 1809, 15 acres of the 50 were cleared, and 6 acres chopped, the value of such improvements exceeding $25. The patent is evidence of the plaintiff’s right, until set aside or vacated. The inhibition in the act is not against the issuing of any patent ; but against issuing until satisfactory proof be produced, that the purchaser has satisfied the occupant. We are authorized to presume, omnia so-lemniter acta, that public officers, to whom the government committed important trusts, had discharged their duty faithfully ; and received the necessary proof, before the patent issued. No evidence was offered that the requisite proof was not produced to the commissioners. The question is, therefore, not raised, whether an inquiry of this kind was admissible on the trial. But if the question had been presented, I think the doctrine contained in the case of Jackson v. Lawton, (10 John. 23,) decisive : “If the patent was issued by mistake, or upon false suggestion, it is voidable only,; and unless letters patentare absolute283 íy void on the face of them ; or the issuing of them was without authority, or prohibited by statute, they can only be avoided in a regular course of pleading.” And again : “ When the defect arises on circumstances dehors the grant, the grant is voidable only by suit. It would be against precedent, and of dangerous consequence, to permit letters patent to be impeached collaterally.” The material question is, whether the letters patent include lot no. 2. There is an evident mistake in the boundaries. Lot no. 2 begins at the north east corner of the survey 50 acres. The description in the patent is, “ Beginning at the south east corner.” If the map is rejected, as the counsel for the defendant contends, there is no difficulty in the case; for then it would not appear there was any misdescription. It would be intended, that the boundaries in the patent were a correct description of no. 2. But the map, by agreement, forms part of the case. By that, it appears that lot no. 2 begins at the north east corner of the 50 acre survey. The residue of the boundaries correspond with the description in the patent. By beginning at the south east corner, lot no. 2 will not be included ; but the whole or greater part of lot no. 4. The location of no. 2 is equally certain, as the south east corner of survey 50 acres. Both are established by the production of the map. It is, therefore, doing no violence, to reject that part of the description, which commences at the south east corner, and give effect to another part, to which equal certainty is attached ; when it is manifest by so doing, full and fair effect is given to the intention of the parties. In truth, here is a direct contradiction. When the patent grants subdivision no. 2, it conveys that lot according to its real boundaries. By the map, it appears that the place of beginning is at the north east corner of the survey 50. From the patent, and the map taken together, it maybe affirmed, that no. 2 begins at the north east corner. After this, follow the boundaries of no. 2, as described in the patent, which makes the place of beginning the south east corner. The '¡ule to be applied is. t! if there are certain particulars suf [284] ficicnlly ascertained, wlricli designate (lie tiling intended b> be granted, the addition of a circumstance, false or mistaken, will not frustrate (be grant.” (Jackson v. Clark, 7 John. 223.) Erom the. principles adverted to, I think the place o( beginning, as described in the patent, may bo rejected as surplusage ; the description of the premises being sufficiently certain without those words. This was done in Jackson v. Loomis, (18 John. 81,) afterwards affirmed on error, (19 John. 449.) In the case of Worthington v. Hylyer, (4 Mass. Rep. 196,) the same doctrine is laid down by ¡’arsons, C. .1., who observed, that. “ If the description be sufficient to ascertain the estate intended to be conveyed, although the estate did not agree to some particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected.” My opinion is, that (he plainliil is entitled to judgment. ■lodgment for the plaintiff.