10 Watts 321 | Pa. | 1840
The opinion of the court was delivered by
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
Judgment affirmed.