72 W. Va. 794 | W. Va. | 1913
' Having introduced no evidence except certified copies of a certain grant, the defendants in this action of ejectment demurred to the plaintiff’s evidence, and the court, being of the opinion that the evidence was sufficient in law to sustain a verdict for the plaintiff, overruled the demurrer and rendered judgment for it upon the conditional verdict fixing the location and boundaries of the land.
In support of their demurrer, the plaintiffs in error charge defects in the paper title of the plaintiff and insufficiency of the evidence to prove the land in controversy lies within the territory the title papers purport to cover.
The title claimed by the plaintiff goes back to the Dewitt Clinton grant, dated February 17, 1796. To establish this
Construing the statute as not having required it, the Virginia registers of the land office did not record the seals as parts of the grants, and this custom having prevailed for more than 200 years, during which thousands of grants were made and recorded the courts of Virginia and Kentucky, once a part of Virginia, have given effect to this practical construction and admitted copies of patents from the Virginia land office as evidence of valid title, notwithstanding the failure thereof to show the seals. The two constructions of the statute which it is supposed the officers considered and the reasons which impelled them to accept the grammatical rather than the legal construction are fully set forth in Hedden v. Overton, 4 Bibb. 406, and Coal & Iron Co. v. Coal & Iron Co., 101 Va. 723. The decision in Hedden v Overton was approved ánd followed in Sneed v. Ward, 5 Dana 187, and by the Dnited States Circuit Court of Appeals in Robinson v. Dewhurst, 15 C. C. A. 466, an action of ejectment originating in the D. S. Circuit Court for the District of West Virginia and involving lands in this state. Although the statute seems to have required all grants by the commonwealth to be “entered of record at full length” by the register of the land office, Code of 1819, Vol. 1, Ch. 86, sec. 50, page 334, the registers deeming the seal to be no part of the grant, omitted it. Legally it is undoubtedly a part of the grant or patent and essential to its completion, the statute requiring such papers to be signed by the governor and sealed, with the seal of the commonwealth, but in a narrow grammatical sense it is not a part of the patent, but only an appendage thereof. At least it was so regarded and treated, and, for that reason, it was not recorded. The adoption of this view was no doubt superinduced or impelled by the
The will of Oliver L. Phelps, probated in the surrogate’s office of Ontario County, New York, on the 17th day of May,
DeWitt Clinton conveyed his grant to one Oliver Phelps. The devisees of Phelps conveyed it to Andrew Kingsbury as treasurer of the state of Connecticut and his successors in office for the use and benefit of the schools. On May 12, 1818, Kings-
The Clinton grant is what is often called an “inclusive” 'one, or, more accurately, one reserving from its operation prior claims within its boundaries. It granted by metes and bounds 1301,000 acres, but excepted in general terms prior claims amounting to 126,000 acres. Many of these were specifically located by the plaintiff in its proof, but there are two old entries, claiming in the aggregate 36,356.5 acres, both antedating the Clinton grant, as to which there is controversy. One of these was made by Andrew Reid and John Stewart, November 1, 1794, for 31,356.5 acres and the other by Andrew Reid, March 20, 1795, for 5,000 acres. Upon these two entries a survey was made and completed on the 7th day of April, 1796, calling for a combined acreage of 36,356.5 acres, the aggregate of the entries. On the 27th day of March, 1797, the land so surveyed was granted to Andrew Reid. The entries were very
The entries were made prior to the date of the Clinton Grant which contains this provision: “But it is always to be understood that the survey upon which this grant is founded includes 126,000 acres of prior claims which have a preference by law to Warrants and Bights upon which this grant is founded, liberty is reserved that the same shall be firm and valid and may be carried into grant or grants, and this grant shall be no bar in either law or equity to the confirmation of the title or titles to the same as before mentioned and reserved, with' its appurtenances.” Part of these entries was never carried into grant, but, if they were excepted as prior claims from the Clinton grant, that grant conferred no title to them. The title thereto remained in the commonwealth. Bryan v. Willard, 21 W. Va. 65; Patrick v. Dryden, 10 W. Va. 387, 416; Nichols v. Covey, 4 Rand. 365. Under the statutory system of disposition of public lands, the entries were lodged with the surveyors as applications for the surveys, and were never transmitted to the register of the land office nor recorded therein. Surveys made upon entries and plats thereof were required to be transmitted to the register of the land office and recorded. Thereupon it became the duty of the register to prepare the patents for execution by the governor. The entry was the basis for the survey and the survey the basis of the patent. As the register of the land office did not make the survey, there was no occasion for recordation of the entries in his office. The entry was merged in the survey, and the survey in the patent. Both were mere preliminary steps to the execution of the patent, but they conferred rights in the nature of equities, determinable by the courts of equity, when the statutory proceeding in the courts of law by caveat was not adopted. The caveat was a remedy provided by statute for determination of controversies between claimants for patents to the same land, or concerning conflicts
As this grant is founded upon entries made after June 2, 1788, it is suggested, but not decided, that, to claim the benefit of an entry, or show an exception thereof from a grant, under a general reservation, the survey on which the grant was made should be produced, showing designation of the entry thereon, for the act authorized grants only upon surveys, showing reservations of prior claims. It took no notice of entries merely lodged with surveyors, and was passed primarily, if not solely, to validate unauthorized surveys, then found in the land office and confer rights to patents founded on them.
The act reads as follows: “WHEREAS, Sundry surveys have been made in different parts of this- commonwealth, which include in the general courses thereof, sundry smaller tracts of prior claimants, and which in the certificates granted by the surveyors of tire respective counties are reserved to such claimants; and the governor or chief magistrate is not authorized by law to issue grants upon such certificates of surveys; for remedy whereof, 1. Be it enacted by the General Assembly, That it shall and may be lawful for the governor to issue grants with reservations of claims to lands included within such surveys, .anything in any law to the contrary notwithstanding.”
At, the date of the Winthrop deed, some of the land originally conveyed to Clinton had been conveyed away to strangers. Accordingly, the Winthrop deed granted to Azel Ford only such as remained, describing it as follows: “All the rest and residue of the DeWitt Clinton grant of 130,000', which’now belongs to the parties of the first part, or to which they have any title, legal or equitable.” Asserting duty on the part of the plaintiff to show the location of the land sold, as a means of identifying and locating' that remaining unsold, under the well settled rule requiring a claimant, under a deed containing exceptions, to locate the exceptions, the briefs for the plaintiffs in error charge failure of the plaintiff below in this respect. The
Having thus examined all the criticisms of the plaintiffs title and proof, and found them untenable, and seeing no defects therein, we think the ruling upon the demurrer to the evidence, was proper and accordingly affirm the judgment.
Affirmed.