
    *David Ross v. James Keewood, The Same v. Michael Hoofacre, and The Same v. George Smith.
    Thursday, March 7, 1811.
    1.Land Commissioners — Authority of. — The laud commissioners appointed under the act of May, 1779, c. 12. had full power to determine without appeal the rights of persons claiming as settlers, or by purchase from settlers, or others, under the authority of the Loyal and Greenbrier Companies, and to direct patents to be issued from the land-offlce of the commonwealth, to persons so entitled, and this as well before as after the decision of the court of appeals, in May, 1783. establishing the rights of those companies.
    2. Same — Judgment of-Remedy of Persons Aggrievedi Thereby — Caveat.—The remedy of persons aggrieved by decisions of those commissioners was. by caveat in the general court, to prevent the patent from emanating: and if a party had such an equity as would, on a caveat, have entitled him to a preference, it was no ground for a bill in equity to set aside the patent, unless he was prevented by fraud or accident, from prosecuting a caveat.
    3. Same — Same—Sufficient Compliance with. — "Where-a judgment of the commissioners was that the-claimant should obtain a patent upon paying the surveyor’s fees and purchase-money to the company or their agent, on or before a subsequent day, with interest until payment, and that otherwise the land should revert to the company, a tender to the company’s agent within the time limited, was sufficient to prevent the forfeiture.
    4. Same — Same—Same.—In such case, upon refusal of the company’s agent to receive the money, the person making the tender was not responsible to the company or its assignee, for interest after the day.
    
    These three appeals, from decrees of the superior court of chancery for the ¡Staunton district, were argued and determined together; the facts and points in controversy being similar.
    The appellant filed his bills, claiming, of the appellees, respectively, certain tracts of land in the county of Washington; relying on titles by derivative purchasers, under the Loyal Company, and grants from the commonwealth, issued thereupon, ithe 31st of January, 1788,) to him as assignee of Thomas Walker, their agent; in which grants the lands were described as part of an order of council, “granted to the Loyal Company, to take up and survey 800,000-acresi which said order was established and confirmed by a decree of the court of appeals, made on the 2d day of May, 1783.”
    That decree was in the following words; 1 ‘The several claims of Thomas Walker, Esq. on behalf of himself and the other members of the Loyal Company; and of *Thomas Nelson, Esq., on behalf of himself and the other members of the Greenbrier Company, to grants of 'all the lands surveyed under several orders of council, bearing date the 12th of July, 1749, the 29th of October, 1751, the 14th of June, 1753, and the 16th of December, 1773; came on to be heard yesterday, and this day; and, thereupon, the arguments of the counsel for the claimants, and of the attorney-general for the commonwealth, having been fully heard and considered, it is. the opinion of the court, and accordingly decreed and ordered, that all surveys made by a county surveyor, or his deputy, properly qualified according to law, previous to the year 1776, and certified to have been made by virtue of the orders of council to-the Loyal and Greenbrier Companies, or either of them, ought to be confirmed ; and that the register be directed to issue patents upon all such surveys as shall be returned and so certified.”_
    
      The statement, made in each bill, was, in substance, that by the rules and regulations of the said company, settlers were enabled to acquire titles to the lands seated by them, on paying the surveyor’s fees, and three pounds for every hundred acres contained in their surveys; that the defendants, and those under whom they claimed, (though settlers, and holding by surveys,) had not paid the surveyor’s fees, or any part of the purchase-money; that Thomas Walker, one of the members of the company, and the person to whose management their affairs were intrusted, appointed one William Inglis an agent in that part of the country where those lands lay, and gave public notice, that those persons who had procured lands to be surveyed should be confirmed in their titles on paying the surveyor’s fees and purchase-money within a limited time; that in the year 1768, the said Walker authorized Inglis to sell the lands, on which the surveyor’s fees had not been paid, to such persons as would discharge them, and agree to pay the original price so soon as the company could make them a complete title; that in September, 1768, Joseph Scott and Stephen Trigg *paid to William Inglis the survej'or’s fees on the lands in question, and obtained a receipt for the same; that, on the 16th January 1773, the said Scott transferred all his right to the said Trigg; and, on the 18th of August, 1775, the complainant purchased of Trigg; that the defendants being in possession, the complainant’s claim was discussed “before the court of commissioners appointed under the act of assembly, in such case made and provided,” who were of opinion that their claims were prior to his; and that grants should issue to them, on their paying the surveyor’s fees and purchase-money to the company, on or before the 23d day of February, 1782; otherwise, the titles should revert to the said Loyal Company ; that the defendants had never complied with the terms on which their titles were declared valid by the commissioners; and, if they had done so, the complainant did not admit that the decision of the said commissioners would have any authority in this case; that, in order to defeat his claim, the defendants had destroyed the ancient landmarks, so that the boundaries could not be ascertained, and had surreptitiously and fraudulently obtained grants of prior dates to those of the complainant. He therefore prayed a discovery of the situation of the original landmarks called for in the surveys, possession of the lands, account of the profits, and general relief.
    The defendants relied on the decisions of the land-commissioners as conclusive in their favour; averring that, within the limited time, they had, respectively, tendered the fees and purchase-money to Thomas Walker, who refused to receive them, in consequence of the pendency of the controversy between the commonwealth and the company, which, being at that time undecided, prevented his making titles; and denying the charges of fraud, they prayed to be dismissed. The judgments of the commissioners, bearing date the 23d of August, *1781, were, that Keewood, Hoofacre and Smith, respectively, were entitled to the lands in question; “provided that they do pay or cause to be paid to the said agent, or the said company, the sum of five pounds specie, with interest thereon from the 22d day of February, 1762, till paid, for each hundred acres contained in the surveys, on condition that the said agent, or the said company, do make good titles in fee-simple to the said lands; or that, if the defendants shall pay the surveyor’s fees in specie, with interest thereon from the 22<J day of February, 1762, till paid, and also all other fees incident and necessary for obtaining grants for the said lands, then the defendants were to pay the sum of three pounds specie for each hundred acres, with interest from the said 22d of February, 1762: and if the defendants should fail to pay the said purchase-money, and interest, on or before the 23d day of February, 1782, then the said tracts of land should revert, and become vested in the said company.”
    The tenders and refusals charged in the answers were fully proved by depositions.
    The chancellor was of opinion, “that, though the right to the lands in controversy was in the Loyal Company, provided the surveys under their authority were such as would have been established under the decision or order of the court of appeals of the 2d of May, 1783, yet, it was but a qualified right, which the company was bound to confer on the first actual settler on certain conditions; no sale, or reservation, having been made previous to settlement ; and the commissioners who had competent jurisdiction to decide upon settlers’ claims having decided in favour of the defendants, as the first actual settlers; (which decision remains unreversed;! and, the defendants havine1 tendered the money in conformity with their sentence, the Loyal Company were bound to convey to them the lands, and were not at liberty ^otherwise to dispose of them.” He therefore decreed that the defendant should pay the complainants the purchase-money and surveyor’s fees, with lawful interest thereon, from the 23d day of February, 1762, to the 22d of February, 1782; and that, as to other matters, the bills be dismissed with costs,
    Williams, for the appellant.
    The commissioners had no jurisdiction to decide in a case of this description. Their powers under the act of May, 1779, c. 12,  and the subsequent acts on the same subject,  extended only to vacant lands; not to such as were appropriated by the Loyal Company; to determine interfering rights of settlers, but not the validity of a title claimed by purchase. Ross was a derivative purchaser from the company, and therefore not bound by the decision of the commissioners. It was evidently, moreover, the intention of the legislature to vest in the court of appeals alone the power of deciding the rights of the company,  After the court of appeals should have settled the controversy between the company and the commonwealth, the commissioners were empowered to take up the subject of claims under the company’s authority; but not until then. Their judgments in the cases now in question were void, being rendered before the decision by the court of appeals.
    Peyton Randolph and Call, on the other side, considered the acts of assembly as clearly bestowing on the commissioners full powers to determine the rights of all persons claiming under the company, as settlers, or as purchasers of settlement rights.
    The court of appeals were only to decide between the commonwealth and the coih-pany. The commissioners were not to wait to see whether the company would carry the question, before the court of appeals; but patents were to issue immediately, *as they should adjudge. The law as to lands of this very description was settled by the act of October, 1783, c. 29.  The case of Stephens v. Cobun, 2 Call, 446, is decisive of the present question.
    If Ross had any ground for preventing Hoofacre and others from obtaining patents, he might have resorted to a caveat in the general court ; and not having done this, he is not entitled to relief in equity,  But, if all these objections were out of the way, the cause is against him upon the merits. Persons who had the first actual settlement were (according to the acts of assembly) to be preferred. But, to defeat their rights, he relies on a forfeiture, and comes into a court of equity to enforce it!
    Williams, in reply.
    Ross had a right to come into equity to set aside the patents illegally obtained, and to have them given up and cancelled.
    But if the chancellor’s decrees were right in other respects, they were wrong in not giving the plaintiff more interest on the money decreed. The allowance of interest should have been continued after February, 1782.
    
      
      The principal case is cited in French v. Successors of the Loyal Co., 5 Leigh 665, 676.
    
    
      
       Note. Oil this subject, see acts of May, 1779, c. 12, Oh. Rev. p. 90 — 91; October. 1779, c. 27, ibid. p. 1)3; May, 1780, c. 9, ibid. p. 122; October, 1780, c. 12, ibid-p. 132; May, 1781, c. 22, ibid. p. 142; c. 29, Ibid. p. 149; May, 1782, c. 49, ibid. p. 169; October, 1782, c. 24, ibid, p. 179; c. 45, s. 8. ibid. p. 183; and October, 1783, c. 29, ibid. p. 217.
    
    
      
       Ch. Rev. 90.
    
    
      
       Ibid. 113, 122,132,149, 169.
    
    
      
       Ibid. p. 94, s. 10.
    
    
      
       Ch. Rev. 217, 818.
    
    
      
       Ch. Rev. 94, 182.
    
    
      
       Depew v. Howard, 1 Munf. 293.
    
   JUDGE BROOKE.

I have not been able to see any thing in the objections, to the chancellor’s decrees, that have been urged by the counsel for the appellant. Upon a strict examination of the act of 1779, entitled “An act for adjusting and settling the titles of claimers to unpatented lands under the present and former government previous to the establishment of the commonwealth’s land-office,” and the subsequent acts on the same subject, I am satisfied, that there is no distinction between vacant, and company lands, that can have any influence on the decision of these cases; and that the appellant, having submitted his claims to the commissioners under the act of 1779, first-mentioned, is bound by their decision, according to the case in this court, of Stephens v. Cobun, 2 Call, 440.

*The objection, that the appellant had not been allowed as much interest as he is entitled to on the money paid to the Loyal Company, I think also unfounded. After the payment by the appellant, the company nad no claim upon the appellees, nor would the appellant, at any time, have received the money, though tendered to him by the appellees, previous to the chancellor’s decrees.

I am therefore of opinion that the decrees, by which the bills are dismissed, be affirmed.

JUDGE TUCKER.

These cases (which all depend upon the same question) appe'ar to me to fall completely within the provisions of the act of May, 1779, c. 12, s. 7, 8, and 9. The former of these sections regulates the manner in which settlements made by certain persons, upon lands surveyed for sundry companies, (of which the Loyal Company was one,) by virtue of orders of council, without specific agreement, but yet under the faith of the terms of sale offered by such companies, should be adjusted, and the title of settlers confirmed, and patents from the land-office of the commonwealth, obtained by such settlers, for the lands to which they were thus entitled.

It must here be remembered that the companies here spoken of had never obtained patents for the lands intended to be granted to them, so that their title, as well as that of the settlers, was inchoate only; the legal title being still in the commonwealth.

Sect. 8th establishes a court of commissioners for the adjustment of the preceding claims, (and some others,) whose judgment is declared final; and has been accordingly so decided in the case of Stephens v. Cobun ; that is. no appeal or writ of error could be brought to reverse their judgment. But any person, thinking himself aggrieved thereby, might sue out a caveat, from the general court, upon which the claims of the caveator and caveatee might be reconsidered, and *a patent was to be granted to the party prevailing in the caveat. But if this were neglected until a patent should be actually obtained by the person in whose favour the commissioners should decide, I presume it was afterwards too late to sue out a caveat; the object of which is not to repeal a patent, but to prevent the emanation of one. And, even if the party thinking himself aggrieved had such equity as would, on a caveat prior to the grant, have entitled him to a preference, it would be no ground for a bill in equity to set aside the patent, unless he was prevented by fraud, or accident, from prosecuting a caveat. Here, then, had Mr. Ross his remedy, if he conceived himself aggrieved by the judgment of the commissioners. But he has totally neglected it, and shown no cause whatever for such neglect, and, consequently, is bound by their judgment.

On the ground of error in respect to interest, I concur with the judge who has preceded me, upon that point, as well as that in which I have spoken to; and am therefore of opinion, that the decrees be severally affirmed; the appellees, as far as in them lay, having1 complied with the terms on which they were to obtain their patents.

JUDGES ROANE and EEEMING were of the same opinion, and the decrees were unanimously affirmed. 
      
       CEl. Rev. 92-94
     
      
       2 Call, 440.
     
      
       1 Wash. 40, Wilcox v. Calloway.
     
      
       Johnson v. Brown, 3 Call, 259, and Depew v. Howard, 1 Munf. 293.
     