2 W. Va. 519 | W. Va. | 1868
The language of the statute, Code of 1860, chap. 112, sec. 64, p. 545, is broad and comprehensive, and I see no good reason for giving to it the narrow con'-struction contended for by the counsel for the appellant.
The case at bar is within the reason no less than the language of it, and I think this is a proper case’ for a bill in equity to repeal a patent, and remove the cloud upon the title, which that patent occasioned, although such patent might be void.
But as the evidence fails to show that the elder grant under which complainant in the court below claimed, covered the land embraced by the junior patent sought to be repealed, and yet is sufficient to make it probable that such is the fact, there should have been an issue directed to be tried by a jury to ascertain that fact. The defendant in the court below contends that the land, if covered by the elder grant, was forfeited, and relies upon the auditor’s certificate, filed by the other side to prove it, which fails to do it. A forfeiture will not be presumed, neither the facts nor want of them, from which such presumption can be deduced. One of the 2,000 acre tracts ivas properly on the commissioner’s land books and charged with taxes for the years 1810 and 1811, and I think it but reasonable to conclude from the evidence that it was subsequently continued thereon and in part made up the land subsequently charged as 6,000 acres and again as 5,122 acres and again as 5,089 acres, the lai'ger quantities being the result most probably, if not manifestly, of official blunders in the commissioner by combining the quantities of several smaller tracts into one entire amount, and though the exact amount of the additions, correctly made, would not correspond precisely with those charges, yet the appearance of certain figures in each, the local description of the lands and the taxes assessed, all go to show, not only the loose manner in which commissioners performed their duty in matters of such importance, but also
The first cause of error assigned is that the complainant by his own showing had no claim to the interposition of a court of equity, as he charges in his bill that he has the elder legal title, and that the possession has always been with that title. Under the statute, Code of "Virginia, 1860, chapter 112 section 64, page 545, thei'e are three causes assigned for which a grant may be repealed by bill in equity, one of which is fraud. The bill distinctly charges that the defendant by fraud and stratagem procured his patent for the land in question, so that I think there is sufficient charged in the bill to give jurisdiction. 2 Band., 206; 3 Gratt., 291,315.
The second cause of error complained of is that the complainant was bound to prove the identity and location of the survey claimed by him, and upon the proofs he offered the
The purpose of evidence is to satisfy the court and not the witness. It seems to me that this evidence was clearly insufficient to locate the land in question, as it amounted to nothing more than the opinion of the witness. 5 Graft., 120. It is claimed that the certificates of the auditor filed in the case show that the 2,000 acre tract claimed by the complainant was forfeited for omission and liable to entry. It is incumbent on him who alleges a forfeiture to show it. S. P. Moore, the patentee of the 2,000 acre tract claimed by the complainant, had upon the books of the commissioners of the revenue for the county of Harrison, for all of the years for which if might have been forfeited for omissions, a tract or tracts of land which from quantity and local description may have included this tract, and if it might have been included it must be presumed that it was until the contrary appears.
The bill of the complainant, in the court below, represents that the defendant, Randolph, by fraud and stratagem, procured a patent from the commonwealth of Virginia, about the year 1851, for 135 acres of land, the greater portion of which, if not all, lying in the county of Doddridge, and alleging further that the defendant, for fear of detection, went to the county of Harrison to obtain 1ns patent for said land, and has by various means undertaken to force possession of the same, he well knowing at the same time that complainant had title to said land by and through S. P. Moore, to whom it had been patented many years before.
These allegations of the complainant’s bill it is sufficient to notice in considering the first point made in the argument of the cause.
It will be seen from the transcript of the record that the allegations of fraud and stratagem in the procurement of the grant, as set up in complainant’s bill, are fully and completely refuted by the answer and the exhibits filed in support thereof. This is conclusive of this part of the case. But then it is alleged in the last paragraph of the bill, “that from the premises stated, the complainant believes said grant of 135 acres of land is void or voidable, because it was issued contrary to law and to his prejudice.” I remark first, the statute provides that a grant may be repealed where it is shown to have been issued “to the prejudice of the equitable rights of a party.” The allegation of complainant that this grant was issued to his prejudice amounts to nothing in a question of the repeal of a grant. And secondly, that the grant here is either a void or a valid grant. It cannot be considered in any measure a voidable grant. True, it is absolutely void if issued contrary to law, as claimed by the complainant.
How the question arises, what is the purport and effect of the terms in the statute “contrary to law?” Grants for land in Virginia were obtained by making due entry of the land proposed to be taken up, obtaining a plat and certifi
In my opinion the court below erred in not dismissing the complainant’s bill, and the decree should therefore be reversed.
Decree reversed.