Chew v. Morton

The opinion of the court was delivered by Kennedy, J. On the first point the court below were clearly right in. deciding that the board of property had no power or authority to revoke or vacate a patent after it had been executed and delivered to the patentees. Before a patent, which is demanded, has been granted, objections to its being issued may be entertained and decided on. by the board; and in doing so, they have the right undoubtedly, arid are bound, either to grant or withhold it as they, in their best judgment, shall think it expedient. Their decision, however, can scarcely be said to be binding, much less conclusive upon either of the parties interested therein; for if the board should refuse to grant the patent, through error of judgment, when it ought to be granted, they may be compelled to do so by a writ of mandamus from this court; and if on the other hand, they should grant it to one not entitled to it, it will be treated by this court or -any other court, where the. patentee shall claim to have acquired a right by means of it, either as a nullity or as enuring to- the benefit of the party .to whom of right it ought to have been granted. In Foster v. Shaw, 7 Serg. & Rawle 161, •this court held that the board of property had no legitimate power to vacate a patent, on the ground that it had been obtained by a forged conveyance. And the late Mr Justice Duncan, in delivering the opinion of the court, says “ this authority is confined to cases of imperfect titles, warrants, locations, rights of pre-emption, promises. 2 Smith’s Laws 13; Act of the 5th of April 1782. But this body possesses no judicial power. It is for them to say in the first instance, to whom the patent shall issue. But this does not decide the right of the claimant. It is open to them for trial by jury, as if no decision of the board had been made. But they can issue no scire facias to repeal a patent, to call in and cancel one. patent and issue another. The legislature have conferred no such power on them.” On the second point, we also think that .the court were right. The agreement between Chew and Morton speaks of the 200 acres which Mor ton was to have, as having been divided off by lines [324] run at right angles, so as to include his improvements, adjoining Braden’s district line; and it having been abundantly proved on the trial, without the least contradiction, that the only lineeof division of the kind made at that time, was that made by Hemphill, it was right that the jury should consider it as the line of division mentioned in the agreement; and it was not error in law certainly, on the part of the court below, in charging the jury, to speak of or treat it as such. It seemed to be the only, and at the same time inevitable, conclusion arising from,the facts and circumstances most incontestably proved. This being the case, it could not be error on the part of the court to instruct the jury that such line, although made by Hemphill at the instance of Morton, yet having been recognised by both parties in their agreement, and acquiesced in afterwards, without objection for more than the space of thirty years, was to be regárded as binding and conclusive in the absence of proof showing fraud. The peace and welfare of society depend much upon a strict adherence to land-marks and boundaries, which have been long established and acquiesced in, though originally founded in mistake. It is not only a rule of sound policy, but becomes one of the greatest justice after a considerable lapse of time, when the party has made valuable improvements which would be impaired or taken away by a correction of the mistake; or when the property has gone into the hands of innocent purchasers, as in this case, for a valuable consideration. It is a rule which has ever been observed by the commonwealth in regard to the boundaries of lands granted by her, in which mistakes are made every day by surveyors against her interest, by including more lands within tire boundaries of the survey than the quantity reported by the return thereof. Even in this case, it appears that the-surveyor, on behalf of the commonwealth, in locating the warrant, under which the parties claim, made a mistake against the commonwealth of 100 acres, for which she has never been paid; and under the rule which seems to have been adopted by the commonwealth, not to correct such mistakes after the grant has been carried into effect, and the title to the land been perfected, she never can demand or receive payment for.it; so that Mr Chew, upon the whole, instead of being a loser by the mistakes which have been committed in surveying the land originally and in dividing it after-wards, is greatly the gainer by being the owner of nearly SO acres more land than he would have been if no mistake had taken place. In truth it may be said that he has never paid for the land claimed in this action, and that he is not now liable to pay any thing for it. If the commonwealth could in any way obtain payment for it now it would be by proceeding against the land itself, which would tend to prejudice the defendant instead of the plaintiff. Judgment affirmed.