
    Curry v. Burns.
    October Term, 1795.
    Northern Neck — Laches of Grantee in Completing Title-Relief in Equity. — In 1756, a warrant from the office of the proprietor of the Northern Neck issued to B. which was surveyed in 1757. In 1768 the same land was surveyed for C. by a special order of the proprietor. In 1770, and not before, B. tendered the composition and office fees, and demanded a grant, which was refused. A few months after this, a grant was made to G. Chancery cannot afford-relief to B. after so unreasonable a delay in completing his title.
    This was an appeal from the High Court of Chancery. The case was as follows: In the year 1756, Burns obtained a warrant from the Proprietor of the northern Neck, and in 1757, after the expiration of six months from the date of the warrant, he had a survey made for 214 acres, (part of which is the land in controversy) which was returned to the Proprietor’s office.
    In the year 1768, by the direction of lord Fairfax, one of his surveyor’s surveyed 140 acres, (part of Burns’s 214 acres,) for Curry, who is at that time an infant. In September 1770, a grant issued to Curry, and in the month of May preceeding, Burns offered to pay the composition money to Bryant Martin the agent of the Proprietor, and demanded a grant; but Martin refused to receive the money, saying that Burns was too late. Burns obtained a patent in 1788 from the Governor of the Commonwealth, and being in possession, Curry brought an ejectment and recovered a judgment at law. Burns filed his bill in equity in the County Court of Berkeley praying for an injunction, and for a conveyance of Curry’s legal title. The County *Court decreed a perpetual injunction and a conveyance, which was affirmed by the High Court of Chancery upon an appeal.
    Lee for the appellant.
    Burns having failed to comply with the rules of the Proprietor’s office by not executing his warrant within the limited time, forfeited all the right to which the warrant entitled him, and the Proprietor, having taken advantage of the forfeiture by granting the same land to Curry, the title of the latter is good against all the world. The offer to pay the composition money in 1770, could not excuse the forfeiture which had taken place many years before, since lord Fairfax had in 1768, authorised a survey for Curry, which was made in that year, and in the grant executed to him, the survey of Burns, and the forfeiture incurred by him are recited. The Chancellor in this case, as in that of Johnson and Buffington, has supposed that the act of 1786, relates back to the warrant, and revives all those obsolete claims, which had not been carried into a grant, so as to defeat posterior rights. The patent to Burns was obtained from the Register’s office in the year 1788, so that the construction of the act of 1788 is not a point in this cause. †
    Williams for the appellee.
    If lord Fair-fax from his peculiar situation, was entitled to no exclusive privileges or prerogatives, (which it must be admitted he was not,) he was equally bound with other individuals by those general rules and principles of law which prevail in cases of contracts for the sale of property. If one man agree to sell land to another, upon condition that payment be made by such a day; tho’ the purchaser should not on that day pay the money, yet if in a reasonable time after-wards he is ready to comply, he majr upon application to a Court of Equit3r compel the seller to make him a conveyance. In this case, lord Fairfax agreed to sell the land in question to *Burns, and received the office fees which constituted part of the purchase money. His objection to perfecting the contract because certain rules were not complied with, ought not to avail him, any more than a breach of a conditional sale in the case stated, could avail the seller. It is objected, that the survey was not returned within the six months limited by the rules of the office. Let it be remembered that the surveyors in the Northern Neck were appointed by lord Fair-fax himself, and consequently that in this part of the business they were his agents and representatives. If the survey was not made and returned in time, it was not the fault of the individual, but of a servant of the Proprietor. Lord Fairfax, after he had received a part of the purchase money, might have prevented any person he pleased from obtaining a grant, by directions given to his surveyors to delay making the surveys, or by issuing so many warrants, that they could not be surveyed and returned in time. The returning of the survey was no part of the contract, but was merely directo^' to the officer.
    But what are those rules of office which are said to be violated? They do not appear in this record, so as for the court to take notice of them.
    In this case Curry appears to be a mere volunteer, and to have obtained the land from lord Fairfax as a gift. Of course he is in no better situation than lord Fairfax would have been. If then the Proprietor ought not to have taken advantage of the forfeiture, (if any such existed,) so as to grant the land again to Curry, the act of 1786 revives and preserves the right of the appellee.
    The PRESIDENT. In Picket and Dowdall, the court determined, that the act of 1786 did not apply to cases where there had been a grant from the Proprietor.
    Lee in reply.
    Curry is said to be a volunteer, but there is no evidence in the record to support the assertion. The grant to him, is the same in form, with all the other grants of the Proprietor; it reserves the usual quitrents, and contains the same conditions. So that this case, is not on that account to be distinguished from the case of Picket and Dowdall.
    
      
       Northern Neck — Laches of Grantee in Completing Title. — In the principal case the court would not decide what ought to be considered as a reasonable time to indulge the owner of a survey in completing his title. Perhaps each case ought to stand upon its own particular circumstances. But it did decide that a delay of eleven years, unaccompanied with any exculpatory circumstances on the part of the grantee, is an unreasonable time. See opinion of Judge Roane.
      Same — Title of Lord Fairfax. — The principal case is cited in foot-note to Picket v. Dowdall, 2 Wash. 106.
      Same — Equitable Title to Land in. — The principal case is cited in foot-note to Picket v. Dowdall, 2 Wash. 106.
      Same -Rules of Office. — In Countz v. Geiger, 1 Call 192, the court said that the following general principles were established in the principal case, relating to the grant of lands in the Northern Neck, i. e. that Lord Fairfax had a right to establish such rules for issuing grants as he pleased, and those applying for grants were bound to conform to them. That having published those rules, by sticking them up in his public office, all applicants were bound to take notice of, and comply with them, without particular notice to each individual. So, that if the lands were forfeited, he might grant them to another : and if he did so, the grant would be good, provided there was no fraud or deception in the person obtaining the second grant. But, if before any proceeding towards a second grant, the first defaulter applied, and performed or offered to perform, what was required, he saved the forfeiture and had the right to the grant; agreeably to the spirit of the act, relative to petitions for lapsed land, which saves the forfeiture, if the condition is performed at any time before the petition, though not within that prescribed by law.
      “tSec. 1. Whereas the law authorizing the Register of the land office to receive into his office plats and certificates of surveys that have been or shall be made, will expire on the last day of December one thousand seven hundred and eighty eight, and it is represented to this General Assembly that many persons through unadvoidable accidents have been prevented from returning their plats and certificates aforesaid, to the Register of the land office, whereby their lands may be forfeited: for remedy whereof, Be it enacted by the General Assembly, that the further time of two years, after the passing of this act, shall be allowed for returning the same, within which time the Register of the land office, or his deputy, shall receive all plats and certificates of survey, although not returned within the time heretofore limited by law; and such lauds shall not be considered as forfeited, or liable to. forfeiture, on that account.’’ — Note in Original Edition.
    
   ROANE, J.

The circumstances of this case are less strong against the relief which is asked for, than they were in the case of Picket and Dowdall. For 1st, The forbearance of Burns in coming forward to com-pleat his title has not been of so long a duration as in that case. 2dly, There is no evidence of an abandonment on the part of Burns of this right to the land. 3dly, *There is no proof here, farther than what is contained in the grant to Curry, that an advertisement had been published by lord Fairfax between the time of Burns’s survey, and that made for Curry, requiring all those who had surveys, to come forward, and compleat their title. This is recited in the grant, and the failure of Burns to comply with the terms of that advertisement, is stated as the cause of the forfeiture. 4thly, It does not appear that at the time Burns required a grant of the land, and offered to paj’ the composition and other fees of office, (which time I fix to be in or about May 1770,) Curry had paid his composition money, if indeed any was ever paid by him. The grant to Curry was not executed until the 10th of Sept, following. In this view of the case therefore, Burns may be considered as having stood upon better ground on account of his priority of survey, than Curry did, unless by his own neglect he has lost his right to demand the legal title. It appears by a memorandum of Richard Rigg, that he surveyed Curry’s land by virtue of lord Fairfax’s instructions, there being as I presume no warrant for that purpose.

This survey was made the 20th of August 1768, and must be considered as the commencement of Curry’s claim. Between this period, at the time of the return of Burns’s survey, (which tho’ not stated, may be presumed to have been shortly after the survey was made, viz: in Sept. 17S7, there had been a lapse of near 11 years, during which time, Burns had wholly neglected to come forward and compleat his title. The question then is, whether after this delay, and the consequent loss of quitrents to the Proprietor he had not a right to consider the claim of Burns as forfeited, and to grant the land to another? I will not undertake to say what ought to be considered as a reasonable time, to indulge the owner of a survey, in completing his title; perhaps every case ought to stand upon its own particular circumstances: but a delay of eleven years, unaccompanied with any exculpatory circumstances on the part of the grantee, is certainly an unreasonable time.

If a grant had been made to Burns, he would have forfeited his land by the nonpayment of quitrents for the space of three years; by this delay, he avoids the payment of them altogether. It was in all cases important to the Proprietor that grants should be taken out within a reasonable time: It is presumable, that it was understood by applicants that this should be the case; and certainly, the spirit of equity does not dictate that a party, by not performing his contract, shall be in a much ^better situation, and the other contracting party consequently in a worse, than if the contract had been duly performed as understood by both parties. I put it upon the ground of an implied contract between the Proprietor and the individual applying for his lands, that the legal fees should not onljr be paid, but that a title should be obtained within a reasonable time. On the authority of the case of Picket and Dowdall, the survey for Curry is to be considered as an entry on the part of the Proprietor to take advantage of the forfeiture. This extinguished the interest of Burns, and of course the grant to Curry pursuant thereto cannot be impeached. The court however, will judge in every case, whether a forfeiture had taken place, and if not, the entry and subsequent proceedings would be deemed invalid. The act of 1785 not having declared intermediate grants to be void, they must stand, unless they should be adjudged to be so on account of the particular circumstances attending them, and as there are none such in the grant to Curry, I am of opinion, that the decree should be reversed, and the bill dismissed.

EBEMING, J.

The warrant issued to Burns, bears date in 1756 and is surveyed in 1757, but not returned until 1770, at which time, and not before, he tendered the composition, and demanded his grant. But a survey had in the mean time, been made for Curry, who in September 1770, obtained a grant.

This case, tho’ it differs in some" points from that of Picket and Dowdall, is fully within the influence of the principles there laid down. Burns has certainly forfeited his right by an unreasonable delay in obtaining his grant, and Curry, having in the mean time obtained a legal title to the land, ought to retain it.

The PRESIDENT. The principles which decidedly govern this case, were so fully declared in that of Picket and Dowdall, that it will be unnecessary to repeat them. It is true, the two cases differ in some points, and that difference so far as it extends, is in favor of Burns. The laches of Burns in not compleating his title, is in point of time much less inexcusable than that of Crap. So too the tender of the composition, differs the case somewhat from that. Yet these points of difference, do not essentially affect the application of the principles laid down in that case. What may be considered as a reasonable time for the owner of a survey to compleat his title, I will not *pretend to say; But I accord in opinion with the other judges, that eleven years unaccompanied with circumstances is too long.

Both decrees reversed, and the bill dismissed.  