
    COURT OF APPEALS,
    OCTOBER TERM, 1787.
    Edward Norwood, heir at law of Nicholas Norwood, against The Attorney-General, at the Relation of Josias Bowen.
    THIS was an appeal from a decree of the Court of Chancery, vacating a patent, and making perpetual an injunction on a judgment at law.
    The information, which was filed on the 13th of Aprils 1775, by and in the name of Thomas Jenings, Esq. the lord proprietary’s Attorney-General, at the relation of jfosias Bowen, states, “ that the lords proprietaries of this province have long used to grant warrants of resurvey to their tenants who hold lands in fee-simple on their application to the land-office, to resurvey such lands, correcting errors in the original surveys thereof, and add contiguous vacancy; and on such persons returning certificates of resurvey made in virtue of such warrants,paying 1 s. sterling per acre for the vacancy added, and reasonable sum for the improvements (if any) on such vacancy, and back rents (if any due) within two years from the date of such -warrants, patents of confirmation have as constantly issued, as those requisites have been complied with. But many persons, greedy of .acquiring great quantities of land, unjustly laying hold of the indulgence allowed them of surveying the waste land before any thing paid, frequently took out warrants of resurvey, included large tracts, and paid nothing to the proprietor, though they held his land, and kept off those who were desirous of becoming honest purchasers, by a faithful compliance with the well known terms. To obviate, therefore, so unjust a practice, Charles, late lord proprietary, deceased, caused his proclamation to be published throughout this province, (which he likewise caused to be recorded in his land-office,) to the effect, that any certificate or surveys oí. land, which had been so surveyed and not been compounded for, should be liable for, and granted to the first discóveror. And in consequence of these proclamations, it has become fire every day’s practice of the land-office, to grant warrants, commonly called the proclamation warrants, to the first discoverors of lands surveyed and not compounded for; and to take away all possible pretence of hardships, the said Charles, late Lord Baltimore, in his wisdom and justice, by his instructions to his judges in land affairs, caused a proviso or condition to be inserted in all warrants since issued, to the effect that all requisites should be complied with and the grant sued out within two years from the date of the warrant. The said Attorney-General, by and at the relation of Josias Bowen, of Baltimore county, planter, further xnformeth your excellency, that one Edward Norwood, of Baltimore county, (now deceased,) planter, being in his life-time seised, or pre tending to be seised in fee, of and in one hundred acres of land, lying in Baltimore county aforesaid, part of a tract of 150 acres, called Thomas’s Range, originally, on the 1st day of June, 1685, granted unto a certain, John Thomas, applied to the land-office on or about the 5th of November, 1647, for a wax-rant of resurvey thereon, and accordingly obtained such warx-ant, dated the day and year last mentioned, in. the common form, to resurvey the said 100 acres, correct any ei-rors that might be in the original survey thereof, and add all vacant land thereto contiguous. By virtue of, and in pursuance of, which warrant, afterwards, to wit, on the 5th' of May, 1748, Thomas White, then deputy-surveyor of Baltimore county, resurveyed the said Edward Norwood’s part of the said tract of land, found the same to contain 112 acres within its ancient lines and boundaries, and by the directions of the said Norwood, within the out lines of the said resurvey, included the said 112 acres, as also 371 acres of land, alleged and showed by the said Nor-wood to the said deputy-surveyor as vacant land, and reduced the same into one entire tract by the name of Norwood’s Range, and delivered a plat and certificate of the said resurvey to the said Norwood, who returned the same to yohn Ross, Esq. the then lord proprietary’s examiner-general, which certificate and plat were, on the 30th of April, 1749, examined and passed by the said then examiner-general, and by him returned into the land-office.
    That after the return of the said certificate to the laxxd-office, the said Norzvood got that certificate into his hands- and possession, under pretence of carrying-the same to the then lord proprietary’s agent to compound thereon, and kept the same in his hands until the the 29th of October, 1760; before which time, that is to say, some time in the year 1758, the said relator, Josias Bowen, applied to the land-office for a proclamation warrant on the said certificate, to affect the vacancy added on the said resurvey. But the said certificate having been taken and kept out of the land-office by the said Norwood, in manner aforesaid, no proclamation warrant, could then issue thereon. Wherefore the said Bozven applied for, and obtained, a copy or duplicate of the said certificate and plat from the surveyor’s books, regularly authenticated, returned the same into his lordship’s land-office, and on the 5th of July, 1758, obtained a warrant under the said proclamation, as well to affect the said 371 acres returned by the said Norzuood as vacancy, as to add thereto any vacant land contiguous; and to prevent any surprise to his lordship’s land-office by the said Norzuood, his lordship’s judge in land affairs, then ordered and caused to be entered in the margin of the record of the said Norzvood’’s warrant of resurvey, in the words following, to wit: no patent to issue on the certificate returned by virtue of this warrant, by order of the Judge's ; the warrant on the proclamation having issued to Josias Bozven, the 5th of July, 17A8 and the then register of the land-office also then endorsed and wrote the following words on the back of the said duplicate or copy of the said certificate, to wit: “ 5th July, 1F58, warrant on the. proclamation to Josias Bozven of Baltimore county, to affect, the within land. Test. Th. Jenings, Clerk.” Which warrant of the said Bowen not being executed within the six months limited for the execution thereof, the same, according to the practice of thedand-office, was, on the 5th of January, j 759, renewed and continued for six months longer, ^vjth liberty of including and resurveying one other tract, called Josias’s Outlet, lying contiguous to the said land added as vacancy by the said Norwood,, originally on the 10th of November, 1695, granted to a certain Josias Bowen for 129 acres under new rent, and to add any vacant land thereto contiguous.' Which warrant of the said Bowen was again renewed, not being before executed, on the 28th of June, 1759, and also on the 28th of December, 1759, for six months from each of those times respectively. By virtue of which warrant, after-wards, to wit, on the 30th of May, 1760, the then deputy-surveyor resurveyed the said tract of land called Josias’s Outlet, according to its ancient metes and boundaries, and found the same contained 150 acres, 21 acres whereof lay in elder surveys; and also the said land added as vacancy by the said Norwood, and what other vacant land was contiguous thereto, and reduced the whole of the said tract called Josias’s Outlet, which lies clear of elder surveys, that part of the said 371 acres added as aforesaid by the said Norwood, which lay clear of elder surveys, and also what other vacancy lay contiguous thereto, into one entire tract under certain lines, &c. by the name of Josias’s Outlet, containing in the whole, 538 acres, 409 acres whereof was vacancy added, and a certificate of that resurvey returned into his lordship’s land-office, dated the said 30th of May, 1760, and afterwards, to wit, on the 3d of July, 1760, the said Bowen paid and satisfied to Edward Lloyd, Esq. his then lordship’s agent and receiver-general, 20/. 9.?. sterling for the said 538 acres of vacancy, and 71. 10s. sterling for the improvements mentioned in the said certificate to be on the vacancy; a receipt for which composition money, and an order for patent to issue with the approbation of your excellency’s predecessor in office, the said agent endorsed on the said certificate, which certificate and endorsement, together with one Other eadorsment of the examiner-general’s, having examined and passed the same certificate was returned unto his lordship’s land-office for patent to issue thereon to the said josias Bozven, where that certificate has ever since remained.
    That after the said Bozven had returned his said certificate, and complied with all previous requisites on his part, by causing the same to be examined, and paying the caution money, and for the improvements as aforesaid, the said Norwood subtly, fraudulently, craftily, and in deceit of the said agent, on the 29th of October, 1760, went with his original certificate, which had been taken out of the office and kept by him- as aforesaid, to the said then lordship’s agent, and though he (the same Norwood) well knew a proclamation warrant had been granted, and certificate thereon returned, and compounded for as aforesaid, and that there was such mar* ginal entry in the record of his warrant and endorsement on the copy or duplicate of his certificate, not disclosing or informing the said agent of any of those circumstances, offered to compound on his said original certificate, and did pay and procure the said agent to accept of 12s. 6d. sterling lor .the surplus, 18/. 11s. 6d. sterling for the vacancy added, 9l. 2s. for twelve years and a quarter of a year’s rent, to Michaelmas, 1760, which he caused to be endorse^ by his said lordship’s agent on the same certificate, together with an order for patent to issue thereon with the then governor’s approbation, and then delivered that certificate with the endorsement aforesaid, into the hands of one Lazvrence Mauyard, now dead, who then was employed in the land-office as a writer or servant to William Stuart, then register, (now. deceased,) and combining and confederating himself'to and with the said Lawrence Mauyard to write and draw a patent of confirmation to him the said Norzvood, in fee, and for the said tract of land called Norwood's Bangs, upon the said certificate thereof, though the said Lawrence well knew of every fact herein before set forth, and particularly of the marginal entry aforesaid, to which he added in his own hand-writing a patent, 29th October, 1760,” and after the said patent of confirmation was so framed, devised and wrote, the said Lawrence, at the instigation and request of the said Norwood, carried the same with the certificate on which it was grounded, to the then governor, and falsely, fraudulently and deceitfully, procured him to sign the same, and affix thereto the great seal.”
    The information also avers, that the agent when he received the money from Norwood, did not know of any proclamation warrant being granted on the certificate ; and that the judges nor register did not know that the patent had been made out, but that the same was done fraudulently, &c. by the said Mauyard, without any orders from any of his superiors. That the then governor at the time, &c. was uninformed of any of the facts, &c.
    “ That the said Bowen not knowing that the said Nor-•wood had obtained the patent aforesaid, at divers and sundry times, applied to the said register of the land-office for a patent on his said certificate, which was as often promised, till on or about the 12th of March., 1762, the said Norwood having got possession of great part of the land included within the lines of the resurvey aforesaid, called fosias’s Outlet, the said Bowen again applying te the said register for his patent, ivas answered that it could not be made out till the back rents were paid up, and that as soon as that was done it should be immediately made out, and according to the course of the office, would bear date on the day of such payment ,• upon which, notwithstanding the said Bowen had done every thing in his power towards suing out patent, and it was owing to the negligence of his then lordship’s officers solely, that the same had not been made out long before, he the said Bowen, on the 1,2th of March, 1762, paid to his said then lordship’s agent, 21.10s. 3d. sterling for two years and four months’ rent to Michaelmas then next, and caused a receipt thereof, together with the said agent’s order for patent to issue with the then govern- or’s approbation, to be endorsed thereon. And in confidence that a patent would be made out immediately, and dated according to the course of the office, the said Bowen, in the name of bis lessee, prosecuted an ejectment against the said Norwood in the Provincial Court, for the recovery of the possession of the said tract of land called Josias’s Outlet, to which the said Norwood appeared and took defence according to his pretensions as they should appear to be laid down on the return of a warrant of resurvey issued, and the pretensions of both parties were laid .down by the directions respectively, as the same appears on the plat, and by which it doth appear that great part of the said tract of land called Josias’s Outlet, is included and contained within Norwood’s Range.
    
    “ That the said Norwood having, on the 9th of March, 1761, entered a caveat against the said Bowen’s obtaining patent on his said certificate, never took any step to have his caveat heard before the then lord proprietary’s judges in land affairs, till some time in the month of February or March, 1763, (though by an express instruction, caveats in that office can continue in force for six months and no longer,) and then the said Norwood caused the said Bowen to be summoned to appear before the said then judges, and answer the said caveat, both of whom accordingly appeared, and then the said Norwood pulled the patent aforesaid, by him falsely, &c. obtained as- aforesaid, out of his pocicet, asserting at the same time the land was already patented to him, and the patent recorded, and that the then Lord Baltimore'and no right to grant his land to Bowen or any body else, which was the first notice the said Bowen ever had of the said Nor-wood’s obtaining the said patent.
    “ That the said proclamation, the said warrant of resurvey to the said Norwood, his original certificate and endorsements thereon, and the patent aforesaid to him, the marginal entries aforesaid, the said proclamation warrant and renewment thereon, are of record, and now remaining recorded in the land-office; that the said copy or duplicate of the said Norwood’s certificate, and the said Bowen’s certificate and endorsements, as well as the said original certificate of the said Norwood, now remain and are original papers, in the lord proprietary’s land-office, and there kept, and that the patent aforesaid now is in the possession of Nicholas Norwood, one of the defendants hereinafter named, to all and every of which said records, and papers, and patents, the said Attorney-General prays leave to refer ; and that they may be taken as part of this information.
    “ The said Attorney-General, by and at the relation aforesaid, also informeth your excellency, that by the rules and practice of the land-office, patents are not to issue for lands known to be patented before, and therefore the said Bowen could not obtain any patent on his said certificate j wherefore he the same Bowen, in the Provincial Court, in April term, 1776, was obliged to suffer a non pros in bis suit in ejectment, and the said Norwood, by judgment of that Court, recovered his costs by him expended therein, and soon afterwards caused an execution to issue thereon, against the body of the said Bowen, who superseded the same according to the act of assembly in such case made and provided; to the record of which same cause in ejectment, &c. &c. reference being thereto had, and to which the said Attorney-General prays leave to refer.”
    The information goes on to state, that the said E. Norwood, on,the 4th of August, 1769, conveyed the said land called Norwood’s Range, to his eldest son, Nicho
      
      las Norwood, in consideration of natural love and a fleetion. That the said E, Norwood, by his last will and . testament, constituted his son Edward Norzvood\ one other of the defendants, his sole executor thereof. That Edward Norwood the executor, after his father’s death, to wit, on. the 27th of August, 1772, issued a scire facias against the said Bo.zven, to revive the judgment, &c. That fat was entered at September term last, and the said Norzvood now threatens to cause an execution to issue, &c, That N. Norwood has entered into the said land, and committed great waste, &c. and still continues, &c.
    . “ All of which actings and doings of the same E. Nor-wood the testator, were fraudulent in deceit of the then lord proprietary, and of his officers, entrusted by him for the management of his land affairs within this province, and greatly in fraud, and to the prejudice, of the said Bozven ; and which actings and doings of the same N. Norwood are against the public good of this province, and contrary to equity and good conscience. In tender consideration whereof, and forasmuch as the said lord proprietary and the said Bozven are only and properly relievable in this honourable Court, where frauds and deceits of this kind are properly cognisable, the previous steps taken to procure and get grants are examinable, and grants and patents obtained by fraud, surprise, trick or deceit, are usually vacated, and where wastes and spoils are restrained and injunctions granted to stay and surcease proceedings at law; to the end, therefore, that the said N Norwood and E. Norwood, and their associates, when discovered, may, on their several and respective corporal oaths, true, distinct and perfect answer make and give, to all and singular the premises, and that as fully as if the same was herein again interrogated, and that the same N. Norwood may be compelled to bring into this honourable Court, the original patent the aforesaid E. Norwood (the testator) granted as aforesaid, and that the same be cancelled and vacated in this honourable Court, and the enrolment thereof to be made void, that patent of confirmation may issue to the said Bowen, on his said certificate for Josias's Outlet; that the said Norwood, the executor, be compelled to enter satisfaction of the judgment aforesaid, and also pay to the said -Bowen, his costs in the suit. at law aforesaid, and also that the said Nicholas may be compelled to deliver up possession of such part of Jo skids Outlet as he claims' under Norwood's Range, to the said Bowen; .that the same Nicholas may be restrained from the commission of other wastes and spoils, in and upon the premises, and that the said E. Norwood the executor, be enjoined not to proceed further at law, without your excellency's order and permission for so doing, and that such further and other decree may be given in the premises, as the nature of. this case doth or may require.” Prayer for subpoena, &c.
    Upon which information, a subpoena and an injunction -issued as prayed, and the case was continued until February, 1782, when Nicholas Norwood, one of the defendants, by Richard Ridgely, his attorney, filed his separate answer, alleging ignorance of most of the transactions | admits his father Was seised of part of Thomas's Range, and believes he applied for a warrant of resurvey; that Contiguous vacancy was added, and the whole called Norwood's Range; The certificate might have been made out at the time alleged, but he does not know in what manner the certificate was returned to the examiner-general, or how long it was retained by his father j but he “ believes that it was usual and customary at that time in the land-office, for certificates to lay for several ■years, and upon the patentee’s paying the caution money and complying with other requisites, to have his title confirmed, without any .regard to the length of time intervening- between issuing the warrant and the grant of ¡confirmation*’’ That he is a stranger.to the several entries in the land-office, if any there be, relative to the certificate of Norwood's Range, or the duplicate thereof ; and if the same be as set forth, they can in no sort affect his title to the land, who claims the same under and in virtue of a deed from his father, whereby all right, Sec. was bona Jidc conveyed to him by his father. That he knows- nothing, of his own knowledge, of any proclamation wan-ant, obtained by the said Bowen, but hath been informed, and believes it to be true, that a certain N. R. Gay, at that time deputy-surveyor of Baltimore county, and who by the rules of the land-office was prohibited from taking up land, or interfering therein, persuaded the said Bowen to make such application for his use, and supplied him with money and the necessary information for the purpose, thereby making use of the said Bowen as an instrument, to obtain the said land for his own use, contrary to the rules of the land-office, and greatly to the prejudice and grievance of the tenants of the then lord proprietary, and repugnant to his office and trust; that this suit is prosecuted at the expense and for the benefit of the devisees of the said N. R. Gay. That he knows not of any fraud or contrivance between his father and any of the clerks of the land-office, neither does he believe any such ever took place, as he has frequently heard his father say, that the said land was obtained honestly and fairly, by voluntary grant from the then lord proprietary's land-office, without any connivance with the said Manyará, or any other of the officers or clerks of the said land-office, neither does he believe that the agent for land affairs was ignorant of the manner of the said E. Norwood’s obtaining a patent, as the records were always open for the inspection of all persons, and the necessary information might have been obtained j admits the ejectment was prosecuted by the said Bowen, &c. also the death of his father, and by his will constituting E. Norwood executor, &c. also that he entered upon the land and occupied the same, and now occupies the same under the deed from his father, and humbly conceives his title thereto is consonant to both law and equity, &c. and he does not apprehend, admitting the said Bowen to have obtained a proclamation warrant as aforesaid, that by any relation or equitable construction, the same can be made to extend to affect his title. He denies all manner of unlawful combination, &c.
    The cause being submitted, &c. the Chancellor (Rogers) passed the following decree, viz.
    “ And this cause thus standing ready in Court for hearing, a day was by this Court appointed, by consent of parties, for the hearing thereof, on which day, being the 7th day of July, 1785, the said cause coming on accordingly to be heard, and debated in this Court in the presence of counsel, learned on both sides; and the substance of the bill and answer and several exhibits aforesaid, appearing as heretofore recited and set forth; Whereupon, and upon debate of the matter, and hearing what could be alleged on both sides, this Court doth think fit, and so order and decree, and accordingly it is, this 7th day of July, 1785, aforesaid, by the honourable the Court of Chancery of Maryland, and the power and authority of the same, ordered, adjudged and decreed, that the original patent aforesaid, granted to the aforesaid Edward Norwood deceased, on the 29th day of October, 1760, for the said tract of land called Nor-wood’s Range, be, and the said original patent hereby is, vacated, revoked, cancelled and annulled, and void, vacated and invalid be had and held; and that the enrolment thereof be, and hereby is, cancelled, made void and annulled, and that the said Edward Norzoood, the executor aforesaid, and all others be, and hereby are,, perpetually enjoined from proceeding, in any manner, tu execute the judgment for costs in the bill aforesaid mentioned, and that the said Nicholas Norwood deliver up to the said Josias Bowen, such part of the said tract of land called Josias’s Outlet, as he the said Nicholas possesses or claims, under or in virtue of the patent aforesaid, of the said tract of land called Norwood’s Range, and that a patent do and shall issue and be granted to the said Josias Bowen, upon the certificate aforesaid, of the said tract of land called , Josias’s Outlet.
    
    
      . Martin (Attorney-General) and Duvall, for the appellant.
    
      J. T. Chase, for the appellee.
    
      
      а) See Killy’s Landholder’s Jissistcmt, c. 10, p. 186,
    
    
      
      
        Id. p. 190, 191.
    
   From which decree, Edward Norwood, as the heir of the said Nicholas Norvjood, who had died after the decree, appealed to the Court of Appeals, and gave bond to prosecute the said appeal, dated the 3d of October, 1786.

At this term, {October term, 1787,) the case standing under rule errors, was dismissed.  