Smith v. BakerSmith v. Baker
- Reporters:
It is unquestionably a general and well established rule of the land office, that no patent shall bo issued for any land for which a pаtent had been previously granted, so long as such patent remains in force ; and it is equally undeniable that exceptions to this general rule should he admitted with much caution. But notwithstanding this is the aсknowledged principle, I feel constrained, in deference to the decision of the Court of Appeals in the case of Lee vs. Hoye, 1 Gill, 188, to consider these cases either as excеptions to the rule, or as not *30embraced within it, and consequеntly not subject to its operation.
In that case it was decidеd that land which had been granted by the state could not be takеn up and included in a patent as vacancy; that if it had become escheatable, it must be taken up by a warrant of escheat, and if under such a warrant it was included as vacancy, the title did not pass to the patentee, but remained in the state. Such being the case, it follows that the lots included in the grants tо the caveators, which lots had been previously granted, аnd which, it is supposed, had become escheat, but which, nevertheless, they took up as vacancy, were improperly included, and the title did not pass. It remained in the state, and liable to be granted under an escheat warrant, the pre-existing рatent to the contrary notwithstanding. It is no answer to say, that in these cases the state received as much ■or more for composition, treating the land as vacant, as if two-thirds of the vаlue had been paid, as is required when land liable to escheat is taken up; because if such an inquiry must be instituted, and the legality of the proceedings in each case is made to deрend upon the value of the land, the distinction between escheat and other warrants would be broken up, and the question wоuld always turn upon the amount paid the state. The principle is understood to be this, that the state having once granted the lаnd, will not grant it a second time, unless the title has reverted to her by escheat. It can, under such circumstances, no longer be regarded as vacant in the sense in which that term is understood in the land office.
The argument of the counsel for the caveators, that as they hold grants issued to them by the state, it is, so far as they аre concerned, of no importance by what title the stаte held, cannot avail them. It rests upon the idea that thesе grants passed to them the title of the grantor, however that title may have been acquired, whether by the failure of the heirs оf the former owner, or because the property nevеr had ‘been granted, and was consequently vacant. The fallacy of the argument is in supposing the title did pass, when, according to the judgment of the Court of Appeals, in Lee vs. Hoye, it did not pass, but *31remained in the state, subject to be disposed of in the mode in which lands liable to еscheat may he disposed of according to the law and rules of the land office.
Submitting, therefore, to the judgment of the Court of Appeals, as all inferior tribunals are bound to do, I consider it my duty to overrule these caveats. It is, thereupon, adjudged and ordered that the caveats in these cases be, and tbe same are hereby dismissed, but that each party pay his own costs.