6 Va. 233 | Va. | 1818
Lead Opinion
The Court’s opinion was delivered by Judge Roane, as follows:
This is a writ of right brought by the appellant against the appellees; the female appellees claiming as heirs of Thomas Powell deceased. The mise being joined on the mere right, and the case submitted to a Jury, an exception was taken to an opinion of the Court. The bill of exceptions states that, at the trial, the tenants exhibited, in evidence to the jury, 1st, a patent of 10 September 1755, to James and John Christian and William Brown, for 3926 acres of land; which is set out; 2dly, a judgment of the General Court, of the 29th of April 1774, revesting the title of the said land in the crown for the non-payment of quitrents; which was rendered on the petition of John and Charles Christian, and certifies that they had prosecuted their petition with effect; which judgment is also set out: 3dly, a Deed of bargain and sale, of 30th October 1777, from the said John and Charles Christian to James Grcssom, for 983 acres of the said land; and 4thly, a Deed from said Gressom to Thomas Powell, of 21st August 1787, for 433 acres of the said land. The exception then states, that the demandant then introduced, as evidence of his title, a patent of 23 November ’97, granted by the Governor of Virginia, for 6695 acres of land; and that it was admit
It Is here to be remarked that NorvelVs patent does not aver on its face that the land thereby granted was Avaste and unappropriated land. It is, however, entirely in the form prescribed by the land law, which form is silent in this particular. It .states, however, that it is founded on a treasury warrant, and it will consequently be taken to convey waste and unappropriated land, if such only can he taken up by virtue of such warrants.
The patent is perfectly free from objection on its face; and, if it is to be impeached and rendered void, it can only be by means of extrinsic evidence. There is no difference in this particular between such evidence as arises from the admission of the parties, or from other sources. If testimony of the last description is not permitted to impeach a patent in a trial at law, neither can the first: the party must still recover on his patent, though be should admit facts, which, if they appeared on the face of the patent, might tend to vacate it. The principle interdicting the introduction of extrinsic evidence,
It is therefore not judicially known to the Court in víhis case, that the land conveyed by Norvcll’s patent is
The necessity, too, of a decision of this point, is probably not urgent, as cases of this description are gradually passing out of existence. With respect to the decision of a case, between the same parties, in this Court on a former occasion, we are of opinion that it does not interfere with or obstruct this decision. That case was in an ejectment; this in a writ of right. In that case, the Court went, or might have gone, on the ground of possession only: in this, the actual title comes in question.
On these grounds, we are of opinion to reverse the judgment, and award a new trial. On that trial, the evidence exhibited by the appellees is not to be admitted. As the instruction given by the Court was founded on evidence now interdicted by this Court, it would be superfluous to say that, on the new trial, that instruction is not to be repeated.
This is the opinion of all the judges, except Judge Brooke. He requests me to state his dissent from the-foregoing opinion.
Dissenting Opinion
has since furnished the reporter with an opinion stating his reasons for such dissent, as follows :
Judge Brooke. My opinion in this case will he tittle more than a commentary on the one 1 delivered in the same ease, when it. was before this Court, in the
But, upon the merits, the former decision of this Court was correct. The plaintiffs in ejectment, and the appellees now before the Court, held an estate upon condition, under the judgment of the General Court, founded on the petition of those under whom they claim. The legal title was revested in the Crown by that judgment, to he transmitted to them upon the performance of the conditions therein mentioned. On the failure to perforin the conditions, no forfeiture could be pronounced in behalf of the Commonwealth (on which the rights of the Crown have devolved) except by the General Court or some other tribunal substituted by law.
But the right of the Commonwealth to grant land before granted, on the ground of a forfeiture, as in the present case, could not accrue until that right was judicially ascertained. Under the act of 1748, in relation to lapsed lands before patented, no right was reserved to the Crown to claim as for forfeiture, on the nonperformance of the conditions prescribed by the judgment of the G eneral Court, as in this case. It’s only security, under ■that act, for the performance of the conditions on the-part of the petitioners, was that, in the event that the conditions were not performed, some other person would again petition to have a grant for it on the same terms, and would Caveat the person claiming a grant, on the ground that he had not performed the conditions prescribed by the judgment of the General Court. This
See the Act of 1748.