Smith v. Vasbinder

Chief Justice Agnew delivered the opinion of the court, The finding of the jury under the instructions given by the court establishes the fact that at the time of the survey and patent to Seth Clover, the defendant (Andrew Vasbinder)'had no title to the 26 acres found for the plaintiff. This portion lay outside of the boundaries marked by the defendant as the limit of his settle [130] ment and improvement. The John Nicholson warrant No. 4546 was filled by survey in 1794, and returned into the Land Office. Whether this survey rvas accepted or not, is uncertain. The question reserved was whether the subsequent survey for Seth Clover, the alleged owner of this same warrant in 1855, and patent to him in the same year, gave Clover any title. The court thought they did not, and gave judgment for the defendant for the 26 acres, non obstante veredicto. In this we think there was error. The general rule undoubtedly is, that after a warrant has been executed, and the survey thereon returned into the Land Office, a re-survey cannot be made on the same warrant without a fresh order for this purpose. The authority of the deputy-surveyor is functus officio when he has returned the survey. Hence a re-survey on the same warrant, after a return of a survey, is held to be void against an intervening claimant of land not within the original survey: Drinker v. Holliday, 2 Yeates 89; Deal v. McCormick, 3 S. & R. 343; Oyster v. Bellas, 2 Watts 397; Cassidy v. Conway, 1 Casey 240. This was not the real question in the reserved point before us. Here the finding of the jury having established that there was no intervening title, legal or equitable, when the re-survey was made for Seth Clover, and the patent granted to him, the only question was whether the patent was good against the subsequent claim of title by the defendant. That it was, is clear according to authority as well as principle. Without pretending to collect and state all the decided cases, it will be found that the-following recognise or incidentally refer to the exception as to the effect of a patent irregularly issued as against claimants subsequent to its date: Nicholas v. Holliday, 2 Smith’s Laws 155-7 ; Trubett v. Nichols & Vance, Id. 158; Attorney-General v. Grantees, under Act of 1792, 4 Dallas 244; James v. Betz, 2 Binn. 12; Bixler v. Baker, 4 Id. 218, 219; Penrose v. Griffith, Id. 231; Downing v. Gallagher, 2 S. & R. 455; Brown v. Galloway, Peters’ C. C. R. 296-7; Whitmire v. Napier, 4 S. & R. 290; Diggs v. Downing, Id. 348. The following cases are directly on the point or affirmatory of it: Light v. Woodside, 10 S. & R. 23; Balliot v. Bauman, 5 W. & S. 155; Delaware & Hudson Canal Company v. Dimock, 11 Wright 397. In Balliot v. Bauman, Justice Sergeant states the law as to patents succinctly and clearly. “A patent is not operative against the rights of a third person existing before the issuing of the patent. He may show that his right is better than that of him who obtained the patent, and for that purpose may inquire into the prior title of the patentee, whether by warrant, survey, settlement or otherwise, and show that his equitable title is better. But one who purchases after the issuing of the patent, and whose whole claim originates subsequently to its date, is not at liberty to search into the imperfections in the previous title of the patentee. If there [131] was any such which the Commonwealth has chosen to overlook, a third person has nothing to do with it. The patent conveys the full legal title of the state, and is as to her, a merger of the previous proceeding and a waiver of informalities; it is, moreover, full and express notice to every person whatever, that the land has been granted away and is not vacant.” The generality of this language was not intended, however, to be extended beyond the subject under consideration by Justice Sergeant. Hence a patent tainted with fraud or procured by imposition, or in entire excess of the proceedings on which it is founded, may be impeached: Burd et al. v. Seabold, 6 S. & R. 140; Attorney-General v. Grantees, 4 Dallas 244; Bixler v. Baker, 4 Binn. 213; Delaware & Hudson Canal Company v. Dimock, 11 Wright 393, That the Commonwealth''herself ‘may inquire into a patent surreptitiously obtained, by scire facias against the patentee, and set aside for fraud, was decided in Philadelphia a few years since in an unreported case. Seth Clover’s patent having been issued upon warrant No. 4546, before any title had accrued to the defendant, judgment on the reserved point ought to have been entered for the plaintiffs for the 26 acres found for them. Therefore the judgment is reversed, and judgment is now entered for the plaintiffs on the verdict with costs, and the record is ordered to be remitted for execution.