Hardin v. Cain

41 Ky. 56 | Ky. Ct. App. | 1841

Judge Ewing

delivered the Opinion of the Court.

Mark- Hardin claimed title to two hundred acres of land under a certificate issued by the commissioners under the headlight law of 1798, to Stephen Tate, and a survey thereon, made in 1799, and patent issued thereon to him in 1835, as assignee of one Cates, as purchaser of said claim at the Register’s sale, filed his bill against John J. Cain and John Cain, to compel them to release to him their elder legal title, claimed by virtue of a patent issued in 1830, on a survey made on a Kentucky Land Office warrant. The Circuit Conit decreed John J, Cain to release, John Cain having disclaimed title, and the former has brought the case to this Court.

It is provided by the 10th section of the act of 1815, (StaL Laws, 1022,) “for quieting litigation,” that all entries heretofore'made, and all titles founded upon surveys heretofore made, which for the time being were authorized to be made-, shall be deemed superiorto surveys made upon warrants obtained by virtue of this act, notwithstanding any alleged vagueness in the entries or certificates on which surveys were founded, and notwithstanding such surveys may not be made conformable to entry.

This section is decisive of the controversy between the claims in contest. Hardin having established the execution of his survey as early as 1799, and identified the land embraced by it, and shown that it was made by virtue of a certificate duly and regularly emanating from the commissioners, who were appointed by law to grant such certificates, cannot, in a contest with the defendant’s claim,’ be driven to establish its specialty or the notoriety of the objects called for by it;, his survey, thus executed, is paramount and superior to the claim of the defendant, and his patent thereon confers upon him a superior equity to the land in contest.

Defendant in such ease, not permitted to go behind the patent and contest the regularity of complainant’s derivation of title, the par tent is presumed to have issued upon competent evidence .of title as against aholr der of a treasury warrant claijp. Morehead <$■ Reed for plaintiff; Owsley for defendant.

Nor can the defendant be permitted to go behind the patent and question the regularity of the assignments, whereby the complainant became invested with the legal title to Tate’s claim. The patent having issued to him, it must be presumed that it was issued upon competent and sufficient evidence of a regularly derived title from the original holder. And indeed, we cannot admit that he may not assert against any adversary claimant, all the rights which the patent confers, until the same shall be annulled or the legal right is. wrested from him, by some prior claimant of the inchoate title; and until that is done, the adversary claimant cannot go behind the grant and impeach it on the ground of irregularity in the assignments, or in the prior derivation of title; these are matters, inter alios acta, in .which he can have no concern, and by which his interest is in no wise affected. It cannot detract in the slightest degree from his title, whether the grant has issued to one man or another.

Decree affirmed with costs.