USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. II > Part 16
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37
1
دهـ هـ
: XXXX xxxx xxxx xxxx8Zorgear.
aus both aver's son Hier auch, branch als and bony
1
B168
VIRGINIA COLONIAL DECISIONS
If there was any Thing in the Argument of the Kings being injured in Point of Hon'r this sort of Deceit is as injurious to his Hon'r as [158] any other But as I never read or heard of that Argument till last Court until I have some better Authority for it than Sir J. R. he must excuse me if I look upon it as a meer refined Speculation of his own In other Cases it has been thought to be for the Honour of the King to make his Grants valid not to destroy them as in the Point of Construction If 2. Constructions can be made and by one the Grant will be void and by the other good For the Honour of the King & Benefit of the Subject such Construction shall be made as will support the Grant 10. Rep. 67. b. St. Saviors. 6. Rep. 6. Sir John Molin. And certainly it is more for the Honour of the King to pass over small Faults where it is not to the Prejudice of himself or his Subjects than to be too rigorous in taking Advantage of them In the Case of a Common Person I am sure we should think so. 2. Inst. 496. 497. 1. Mod. 196.
Read Hob. 222. & St. Saviours Case 2. Inst. 2. Mod. 1.
If the King by Office found has a Mannor in Ward & grants the said Mannor by certain Name which said Mannor was lately seised in our Hands &c. And in Truth the said Mannor was not seised This shall not avoid the Grant tho' false for it is not material & was only added for the greater Certainty of that which was certain enough before 10. H. 4. 2. Sir John Lestrange. cited in Legats Case 10. Rep. 113. a.
Q. Eliz. granted to Thos. Markham the Office of Keeper of the Parks of Woods of B. which said Office the E. of Rutland lately held whereas the said E. never held the said Office And it was resolved by the Chancellor Attorney & Sollicitor general to whom it was referr'd that the Grant was good notwithstanding that false Suggestion So if the King demise a Mannor by special Name which Mannor was lately in the Tenure of I. S. but in Truth he never had it. Yet the Grant is good for in these Cases the King is not deceived in his Title nor in the Value of that he intended to grant nor in the Restraint which he for his Profit intended to make. Sir Tho. Markhams Case cited in Legats Case supra-Quod lege-
H. 7. Anno 19. granted to G. B. the Mannor of B. in Tail Male And Anno 24. by Letters Pat. reciting the former & that they . were surrendered & cancelled by Virtue whereof the King was seised in in Fee granted the said Mannor to the said G. B. & F.
٥٠٠
i
1
Y
B169
BARRADALL'S REPORTS
his Wife & the Heirs of G. (without any Grant of the Reversion) And the Question was if the Reversion would pass by this last Grant It was objected 1. that the Estate tail was not recited as continuing whereof the Reversion might be granted but as determined And therefore the King granted it as a Thing in Possession when he had only the Reversion expectant 2. The King thought by the Surrender of the first Letters Pat. the Estate tail was determined & that he was seised in Fee in which he was deceived 3. The King was deceived in the Estate he granted for he intended to grant an [159] Estate in Fee in Possession & not a Reversion expectant But it was adjudged that the Grant was good to pass the Reversion for here was no Wrong done to any one and less passed by the Grant (sc. the Reversion) than the King intended and so no Prejudice to him 6. Rep. 55. Lord Chandos. Lege 2. Mod. 1.
Where was the Regard to the Kings Honour in this Case or those others I cited Yet it is evident he was deceived but the Deceit was not material no Ways to his Prejudice & so not weighty enough to make void his Grant. Many other Instances of the like Kind might be given but these I hope may suffice to show that tho' the King be deceived if it be not in the Con- sideration that is real in his Title in the Value of the Land or in the Restraint he intended to make for his Benefit the Grant may be good. It will remain then to consider whether the King was so deceived in the present Case whether the Deceit alledged be so weighty or material as that it should make the Grant void
The Method established here for granting the Kings Lands has been always the same a Survey is first to be made and a Plat returned before any Patent issues Not that there is any positive Law for this but it has been the Course and Usage from the first Settlement and took its Rise & continues its Force meerly from the Kings Authority & Institution who no Doubt may establish any other Method for granting his Lands if he pleases Now that many Patents must have been granted formerly without the ceremony of marking & measuring the Land (the Want of which is the great Fraud & Deceit here complained of) must be evident to any one who considers the State of Things upon the first Settlement of the English here The Indians were then in great Numbers all over the Country and it could not be done with any Safety or Security and indeed the Disputes we have concerning the Bounds of the old Grants prove this Point
1.
-
1
2
',' !!
一
٠٠٤٥
..
.
١٠
-
B170
VIRGINIA COLONIAL DECISIONS
to a Demonstration since in many of them there appears never to have been any marked Lines or Boundaries and almost in all a vast Difference between the Courses & Distances of the Pat & the ancient Possession under them But I never yet heard that any of those Grants have been impeached because the Land was not marked &c. tho' we may expect they will if it is Your Hon'rs Opinion that that Defect is sufficient to avoid the Kings Grant That being equally necessary then as now There was no positive Law then nor is now making it necessary or essential and therefore by the same Reason that a Grant made ten years ago is void for Want of that Circumstance A Grant made 50 or 100 Years ago must be void for Want of the like Circumstance The Length of Time will make no Difference in the Case of the King
It will be sayed perhaps there is an Act of Assembly directing the Surveior to bound the Land surveied by him by marking Trees And it is true there is such an Act And no Doubt the Surveior ought to have done it But then I must observe that Act is meerly directory [160] to the Surveior The Title is An Act directing the Duty of Surveiors 4. Ann. c. 22. And the whole Scope of it plainly shews nothing more was intended There is not a Sillable of the Kings Grants Or that they shall be void if the Surveior does not do his Duty. Nor would the King I presume be pleased to be so prescribed to This Act then is nothing to the Purpose only to shew the Surveior has not done his Duty which I allow But it is no Consequence I hope that therefore the Kings Grant is void I am sure the Act says not such Thing.
But here Chew the Grantee was privy to this Neglect of Duty : in the Surveior And this is made a mighty aggravating Cir- cumstance It may be necessary therefore to obviate the Force of that Objection It was sayed last Court that the Grant was a meer Forgery That there was a Combination between Chew & the Surveior tho' to what End I know not & shall be glad it may be pointed out It is found indeed that Chew knew the Land was not marked or measured when he took out his Plat but then it appears in the Depositions that the Surveior when he begun the Survey made an Excuse for not finishing it That it was Saturday Night but promised to - do it when he came up to finish some other Surveys This Chew might reasonably suppose he would do in nine Months
2
٠٠٠
سجـ
٠:٤١
٠٠
B171
BARRADALL'S REPORTS
which passed before he sued out his Pat But admitting he was somewhat too hasty in getting a Plat & obtaining a Pat. before this was done I cannot see how this can be term'd a Fraud it was rather a piece of Ignorance an Error of the Judg- ment not any depraved or sinister Intention Nor does there appear any Advantage he could possibly propose by it to himself Nor any Fraud upon the King for the full Composition was paid Nor more Land within the Bounds than mentioned in the Grant and the full Quitrents honestly paid ever since Neither could he intend or foresee any Prejudice to another. He might well think the Surveior would finish his Survey accord- ing to his Promise And if he he did not do it 'tis he alone is guilty of the Fraud & not Chew and ought to answer for the Injury done to the Deft. which he or his Representatives may undoubtedly be compelled to notwithstanding the contrary was asserted last Court
This mighty Fraud then in Chew of being privy to the Sur- veyors Neglect when fairly stated & considered appears to be no more than a piece of Ignorance & folly without any Prob- ability of a fraudulent or sinister Intention either with Respect to the King or any one else. The Surveior is undoubtedly inex- cusable But then whether his Neglect of Duty ought to make void the Kings Grant must be humbly submitted
[161] I shall now speak a Word to the 2. Point which was to shew the general Mischief & Inconvenience that will be intro- duced if it is determined that any Neglect of Duty in a Surveior or his omitting to mark & measure the Land surveied shall make void the Kings Grant I have had Occasion already to speak of the old Grants upon the first Settlement here by the English And it is evident I hope from what has been sayed that the Lands then could not be marked or measured It is further notorious that in later Times Surveiors have been very remiss & negligent in their Duty. Many Plats upon which Grants are founded have been returned without stretching a Chain or marking a Tree Therefore if it is determined that Grants are void for these Slips & Frauds of the Surveior it will introduce an universal Confusion & shake for ought I know half the Titles in the Country No Purchasor can be safe under a Possession tho' ever so long if the Crown thinks fit to repeal the Grants far no Time will bar the King In short to deter- mine that a Grant is void because the Surveior did not mark &
1
٢:٢.٠٠
٠٠
1.
::
! !
. .
. :
-م
:
B172
VIRGINIA COLONIAL DECISIONS
measure the Land before he returned his Plat will be in Effect to declare that half the Patents in this Country are void
Now the Judges in their Determinations have Regard to the Generality of the Subjects Cases & the Inconvenience that may ensue 1. Rep. 52. Vaughan lays it down as a Rule that where the Law is known & clear tho' unequitable or inconvenient the Judges must determine as the Law is But where the Law is doubtful & not clear the Judges ought to interpret it to be at least inconvenient To apply this-As it is far from being clear that the Defect of the Surveior in not marking & measuring the Land is such a Deceit or false Suggestion as will make the Kings Grant void and as such a Determination will be introductive of à general Mischief & Inconvenience & tend to destroy many Mens Titles to their Inheritance I hope it will not be Your Honours Opinion.
As to any Hardships that may be pretended on the Defts. part And I remember a great deal was sayed af that last Court I hope Chew is not to answer for that it being altogether the Surveiors Fault of whom he must seek for his Remedy And as to losing his Houses which is Part of the Hardship complained of that is owing to the Defts. own Folly & Obstinacy since it appears Chew forewarned him building upon the Land in Con- troversy alledging it was within his Bounds And the Deft. could not be ignorant that it was so by offering to purchase of him So his Damage upon this Account is of his own Seeking & ought not to be at all considered. And I must submit whether the Hardship will not be as great upon Chew to lose his Land meerly for a Neglect of Duty in the Surveior for I can consider it in no other Light when he has honestly paid the King his Rights which is in the Nature of Purchase-mony Has no more Land than he ought to have and has paid the full Quitrents ever since the Time of his Grant. But in Truth the Hardships on either [162] Side should be thrown out of the Question And the general Inconvenience is what ought to be considered This I hope I have sufficiently shewn And so humbly pray Judgm't for the Plt.
Randolph for the Deft. The Question is not Whether the Plts. Grant be absolutely void but whether it be good ag't the Deft. who has obtained a fair Grant & observed all the Rules prescribed by the Law whereas the Plts. Grant is a meer Forgery procuring a Plat to be returned & taking out a Patent upon it
٠٠
·
sn: grisengine y gusatsmt sofn ut anley
..
١٠ ١٤
بسطر
B173
BARRADALL'S REPORTS
when he knew the Land was not surveied was a very great Fraud upon the King a false Suggestion of the Party himself and must make the Grant void At least so far as not to hurt an innocent Person as the Deft. is The Rules for granting Lands here have been the same from the first Settlem't of the Country The first Charter to the Company impowered the Gov'r & Council to settle the Priviledges of Adventurers which was done by allowing 50 Acres to each Adventurer The same Course was observed after the Dissolution of the Company without any positive Authority till the Time of Ja. 2. When a new Clause was added to the Governors Commission to grant 50 Acres for Importation but no Land was granted for Money till 1703. Surveying was always necessary & required before any Grant was made And where an essential Circumstance is wanting the Grant must be void Vernons Case 1. Vern. 370. Vernon & Benson Mod. Ch. Ca. 47. Much more here where the Party himself was privy to this Neglect of Duty in the Surveior and so joined with him in the Deceit upon the King The Par- taker in a Fraud is equally guilty with the Contriver The Law abhors all kind of Fraud A Fine tho' the most solemn Conveiance if levied by Fraud & Covin is void 3. Rep. 77. Fer- mores Case As to the Inconvenience this Case must be distin- guished from those where the Surveior alone is in Fault and the Grantee no Ways privy In that Case it might be hard that an innocent Person should suffer for the Neglect of Duty in an Officer but here the Party knew the Officer had not done his Duty It was a Contrivance & Combination between them and a great Piece of Presumption & a notorious Deceit upon the King for the Plt. to take out a Pat. upon such a Piece of Forgery as the Plat was Surely no Favour or Countenance is due to such a Practice Especially when an innocent Man is to be oppressed & ruined by it .
To prove the Grant void were cited Alton Woods Case
1. Rep. 40. b. Vows Case cited in Legats 10. Rep. 110. b. [163] In April 1735. Judgm't was given for the Plt. by the Opinion of 7. Judges ag't four But upon the great Importunity of the Defts. Council the Court was prevailed upon to hear another Argument which was made October 1736 when Blair & Byrd having changed their Opinions Judgm't was given for the Deft. by the Opinion of those two & Randolph Grymes Carter & Digges -- Lee Tayloc Custis Robinson & the Governor con.
-
: i
:::
.
٤٠٠٠٪
Н: 919.98 9г .. этот л20 17 .00.00 50М погло8 53 почту
1
B174
VIRGINIA COLONIAL DECISIONS
Lightfoot formerly for the Deft. now doubted Carter did not hear the 1. Argument
Note The Courts Opinion turned upon the Fraud (as it was termed) in the Plt. viz his knowing the Land was not surveyed Vide Sir J. Randolph's Argument Fr. Deft.
No. 53. & post cod. Lib.
OCTOBER COURT MDCCXXXV
LEGAN for ARMISTEAD ag't NEWTON.
The Lands in Question were granted to Behethland Gilson by Pat. Sep'r 27. 1667. And again granted to Thos. Gilson Oct. 20. 1670. as lapsed from Behethland She at the time of the Grant to her was but a Year old Died in Oct. 1693. being then the Widow of one Stork And by her Will devised the Premises to her Daughter Eliz. whose Heir apparent the Deft. is Eliz. was born in 1687. married in 1702. to the Defts. father who died in 1728 the Land was first seated for Behethland in 1692. ac- cording to the Law then & no Seating before The Deft. has Behethlands Right & is 33 Years old In May 1705. Augustine Smith obtained a Grant of the aforesaid Lands as lapsed from T. Gilson and the Lessor of the Plt. has his Title Smith seated it according to the Condition of his Grant But except the seating by Behethland & that by Smith no Person has ever lived upon the Land till the Deft. ent'red in 1729 & settled a Plantation Only one Daniel after 1710 by Permission of the Lessor tended part of the Land sev'l Years Smith & the Lessor have paid the Quitrents from the Time of the Grant to Smith & even since the Defts. Entry to this Time And whether the Lessor or the Deft. have Title to these Premises is the Question
For the clearer Understanding of this Case I shall divide what I have to say into 5 Points or Questions 1. I shall consider whether the Infancy of Behethland the first Grantee did or could excuse the Forfeiture for the Breach of Condition in not seating within [164] three years If not then 2. Whether the 2. Grant to T. Gilson was good 3. Whether the seating in 1692. by Behethland did or could give her any Right or be taken as a Performance of the Condition either of the 1. or 2. Grant so as to make the 3. Grant to Smith void 4. If this Seating be taken as a Performance of the Condition of the 2. Grant Whether the
---- --- ----
1: ٢٠
.
i
一
.. Độ Hvid { main
:
٠١٠
: ٠٠
٠٠ ٢ ٢٠
::
B175
BARRADALL'S REPORTS
Deft. has any Title under T. Gilson the 2 Grantee. 5. Admitting the Grant to Smith is void Whether the Possession of the Lessor of the Plt. above 20 years before the Defts. Entry was not a Bar to that Entry and is a good Title in the Lessor
1. I take it to be very clear that the Infancy of the Grantee will not excuse the Breach of the Condition There are 2 sorts of Conditions in Law or [sic] implied in Deed or express The Breach of Conditions in Law in the Case of Infancy will some- times cause a Forfeiture & sometimes not 1. Inst. 233. b. 380. b. 8 Rep. 44. b. But Infancy will never excuse a Forfeiture in Case of the Breach of a Condition in Deed As if Land be given to an Infant upon Condition or he purchase such Estate or even if an Estate upon Condition descend to him he is bound by such Condition & must take Notice of it at his Peril for if the Con- dition be broken during his Minority the Land is lost Bro. Condition 114. Coverture & Infancy 71. Plo. 375. Stowell 8. Rep. 44. b. Whittingham 1. Inst. 380. b. 1. Mod. 86. 300 & 2. Lev. 22. Porter a Fry a notable Case An Estate was given to a Grandaughter an Infant upon Condition she married with Consent and if she married without Consent Then Devise over She married without Consent under Age And one Point adjudged is that her Infancy would not excuse the Breach of the Con- dition And even Equity refused to relieve ag't it And so in the Case of Bertie & Lord Falkland 2. Vern. 343. the like point was resolved. Lege S. Rep. 1. Mod.
This is the Law in the Case of a Subject and it is stronger in the kings Case for these Conditions are always taken strictly & as most for the Kings Benefit
If the Act of 11. Ann. c. 4. for saving Infants Rights in Case of Lapse should be objected I answer an Act made so long after and providing only for Cases futurely happening can never in- fluence this Case Besides this Case is not at all within the Pur- view of that Act which only saves Infants Rights in Case of Lapse not where they are original Grantees or Purchasors And now I have mentioned this Act I must take Notice of it as a further Proof that Infancy will not excuse the Breach of a Con- dition for if it would this Act had been needless I hope then it is clear that the Infancy of Behethland the first Grantee did not excuse the Forfeiture for the Breach of Condition And it is next to be enquired
2. Whether the 2. Grant to T. Gilson be good It is the Nature
.
芳:
1.
!
! ز
١٠
!!
119
٢٠٢٢ جه٢٠
٠٫٠٠
٠
..; !
B176
VIRGINIA COLONIAL DECISIONS
of an Estate upon Condition that if the Condition be broken the [165] Grantor has a Right of Entry If he cannot enter as in some Cases he cannot he must make a Claim And in either Case of Entry or Claim the Estate determines & not before 1. Inst. 218. a. It will be objected perhaps that the King cannot enter for a Condition broken till the Breach is found by Office Pop. 26. And I agree that regularly there ought to be an Office But then I say it was never practised in this Country I mean in a strict & formal Sense for something in the Nature of it has been always used and practised at least from the Year 1662. By an Act made then c. 69. No Pat. is to be granted for Land as deserted for Want of planting within 3 Years till Proof be made before the Governor & Council & an Order from them for the patenting thereof Thus the Law stood here till the 9. Ann. c. 13. when a new Method was established for this Purpose which is too well known to need reciting The old Method as well as the new were instituted in the Room and are in the Nature of an Office. It is indeed notorious that under the old Act Lands were frequently granted upon a meer Suggestion that they were lapsed without any further Enquiry And therefore this Court upon Proof made that the Land was saved has frequently adjudged such 2 Grants to be void & with good Reason because they were founded upon a false Suggestion and the King was deceived But there can be no Pretence of that Kind in this Case because it is found in the Verdict that this Land was not seated till 1692 above 20 Years after this second. Grant And at this Distance of Time it must be presumed the Grant was regularly obtained according to the Directions of the old Act since nothing appears to the contrary And in the Grant itself it is mentioned to be by Order of the General Court If then this Grant was regularly obtained there was an Enquiry in Nature of an Office according to the Course & Practice of those Times and then the King might enter as he did & granted the Lands to T. Gilson And such Grant is undoubtedly as good as any other under the same Circumstance Nor has the Validity of such Grants been ever disputed except where it has been proved that the Land was saved Here then is a Period to Bchethlands Right & Title under the first Grant And the legal Estate in the Premises vested in T. Gilson How Behethland ever gained any other Right or Title will be incum- bent on the Deft. to show for my Part I cannot so much as guess at it for I cannot conceive
Toney
1
٠٠ ١
1:
::
٢
1.
٠٠
!
‘1-
٠٠
B177
BARRADALL'S REPORTS
3. That her Seating in 1692 (w'ch is the 3 Point) could give her any Right or be taken as a Performance of the Condition of the 1. or 2. Grant which if it should would consequently make the 3. Grant to Smith void. I have before observed that if the Grant to T. Gilson was good the Legal Estate of Behethland determined when that Grant was made I cannot conceive then how a tortious Act of hers 20 Years after could regain that Estate she had forfeited so long before I call this Seating of hers in 1692. a tortious Act [166] for if the Grant to T. G. is good & his Estate continued it was a Disseisin or Trespass upon him If his Estate did not continue but was become forfeited it was an Intrusion upon the King I am really at a Loss to divine what Arguments can be made Use of to prove that such an Act can give any legal Right or Title And therefore I must be silent till I hear what they are Sure it won't be pretended this was any Performance of the Condition of the 1. Grant to Behethland 20 Years after the Condition broken and Entry made for the Breach & thereby the Estate determined
Neither can this Seating be taken as a Performance of the Condition in the 2. Grant as I humbly conceive being so long after the Time limited in the Grant for Performance I shall admit that a Seating by one who has no Right shall enure to the Benefit of those who have Right but then I think this Seating ought to be within the Time limited Suppose we were in the Case of a Subject an Estate is granted upon a Condition to be performed within 3 Years which is not done the Grantor does not enter but suffers the Grantee to continue in Possession who many Years afterwards performs the Act required by the Con- dition I believe this would not be taken as a Performance of the Condition or bar the Grantor of his Entry And if not in the Case of the Subject much less in the Kings Case where Con- ditions are always taken strictly & as most for the Kings Benefit And the Equity will sometimes interpose to save a Forfeiture where the Design & Intention of the Grantor is fulfilled tho' the Condition be not strictly performed That was never known in the Kings Case. Besides the Intention here was not fulfilled which was to have the Land seated & cultivated I conceive then this Seating in 1692. was no Performance of the Condition of the 2. Grant And then the Grant to Smith 1705 is a good Grant And the Lessor of the Plt. has a clear Title
4. But if this Seating can be taken as a Performance of the
.
٢٠٠٠
-
...
1.
٠٠٠٠
3
一
1
.
B178
VIRGINIA COLONIAL DECISIONS
Condition of the 2. Grant It must next be seen if the Deit. has any Title under T. Gilson the Grantee Upon which Head I shall not need to say much because I am sure no Title at all appears either in the Deft. or Behethland Under whom alone it is the Deft. pretends to claim They were neither of them Heir to T. G. Nor was any Conveiance ever made by him of his Right So that there can be no Pretence of any legal Title under him. If they will set up an equitable Title as I don't know what they may pretend to It will be unnecessary to give any Answer We are at Common Law and I presume the Determination will be upon the legal Title & not any imaginary equitable one if any such is pretended.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.