
    *Norvell v. Camm and Wife and Warwick and Wife.
    
    Decided, Dec. 2d, 1818.
    [8 Am. Dec. 742.]
    1. Patent — impeachment — Evidence Necessary. — A Patent winch is free from obj ection upon it’s face, can not be impeached in a trial at law, upon any evidence but that of a prior Patent remaining in full force.
    2. Same — Land Forfeited for Nonpayment of Quit-Rents —Effect as against Petitioner for Such Lands. — If a petioner for land forfeited by nonpayment of ciuit-rents, under the 30th section of the Act of 1748, c 1, failed to pay the consideration money, within six months after a Judgment in his favour, and to get a Patentas the law required; whereupon, another person obtained a Patent for the same land by virtue of a treasury land warrant; such Patent is good at law, against a title derived from such Petitioner; unless the length of possession, of the tenant and those under whom he claims, accruing before the issuing of such Patent, be such as is sufficient to bar a writ of right.
    3. Same — Same — Same — Equitable Relief. — Quaere. ■Whether the tenant in such case could be relieved inequity?
    
      4. Same - Same. — Quffire, also, whether the Issuing of such Patent could be prevented by a Caveat, on the ground that the land, having been previously granted and settled, though forfeited by the original Patentee for non-payment of quit-rents, was not waste and unappropriated?
    After the decision in favour of Camm and Wife and Warwick and Wife, in Ejectment against Norvell, reported in 2 Munf. 257 — 263, the latter brought a Writ of Right against the former for the same land. At the trial, the title-papers on both sides being exhibited, the tenants moved the Court to instruct the Jury, that the patent of the demandant was void, on the ground that the land thereby granted was not waste and unappropriated, and consequently not liable to be taken up by a treasury warrant; which instruction was accordingly given by the Court, and thereupon a verdict was found and judgment entered for the tenants; from which the demandant appealed to this Court. The case was argued before a Special Court of Appeals.
    Stanard for the appellant.
    It is not competent to a Court of common law to declare a patent void, upon the face of which there is no legal defect,  In such case it can not be avoided, but by a regular and proper proceeding instituted for that purpose.
    The case of Noland v. Cromwell, 4 Munf. 155, could never have come before the Court, as a case for equitable relief, but for the validity of this principle. A prior entry or warrant, it is true, withdraws the land from the class of waste and unappropriated; but it’s being so withdrawn can not be given in evidence to vacate the patent, at law; as the cases of Wilcox v. Cal-loway, 1 Wash. 38 — 42, and Jones v. Williams, 1 Wash. 231, and *the invariable course of the practice, and judicial decisions of his Country, fully evince. But
    2dly, the land was such vacant and unappropriated land as Was fairly subject to the demandant’s grant and location. The right of John and Charles Christians, under whom the appellees claim, was a mere right of pre-emption,  subject to the condition of paying the consideration money within six months; which right was forfeited by non-compliance with that condition. Unless this were true, and the land thereupon liable to location, such right of pre-emption would become an absolute and indefeasible title. By the Act of 1779, (Ch. Rev. 94,) the lands of the Commonwealth were brought into market, with certain specified exceptions: the object was to raise money for the public Treasury, and prevent litigation: all surveys were required to be returned within twelve months, or the right of their owner to obtain a Grant would be forfeited. So, by the Act of 1786, c. 3, § S, the surveys there mentioned were to be returned on or before the 1st of October 1788, or the land surveyed was to be vacant and liable to location. The parties entitled under Surveys, have not only the right that the Christians had, to wit, that of pre-emption, but they have also paid all that the Commonwealth can demand of them; yet their rights are by these laws subject to forfeiture, for delay in carrying them into grant; and yet it is contended that the right of the appel-lees is safe, though nothing has been paid, or done, by them, or those under whom they claim, since the judgment pronouncing the land to be lapsed 1 If this defence shall prevail, their right will be consummate to all intents and purposes without a grant! the Commonwealth has granted the same land to the appellant, and his failure in this action will impart to them all the strength of his title.
    Wickham contra.
    The true question in this case is, whether the patent previously issued did not take away the Commonwealth’s rignt to grant the land again. If there be two Grants for the same land as waste and unappropriated, the right of the Commonwealth passes by the first, and the second is void, because nihil operatur. *So too, if an Individual sell land and convey, and afterwards convey to another person, the second Deed is void as a conveyance, because nothing passes by it. The land therefore could not be granted to Norvell; for it had been conveyed from the Commonwealth by a prior Grant. The case of escheated land, which can not be granted as waste and unappropriated, is similar to this.  It is true that, in the case of Alexander v. Greenup, it appeared on the face of the patent, that it was a grant of escheated land; but in this case it appears that there was a former Patent; which circumstance equally prevents the granting of the land the second time.
    Our right was secured by the Revolution; at the commencement of which, we were in possession. It depended on the Patent of 1755, under which the right of possession was transmitted to us. The case of Jones v. Williams, 1 Wash. 231, cited against us, is conclusive in our favour. Mr. Stanard says, that a right behind a patent, can not be exhibited at law; but, surely, if such right be a prior patent, it may. The true construction of the Act of 1748, is not that any person might enter for the forfeited land ; but that it might be done, “upon the like terms and conditions,’’ &c., by the petitioner, (in whose favour the judgment was,) and by no other person. No person could enter for it as waste and unappropriated.
    In the case of Norvell v. Camm, 2 Munf. 257, this Court decided the very question now before it. The appellees are lawfully in possession, and therefore entitled to-judgment. In that case, Camm and Wife were plaintiffs, and recovered on their length of possession. Here they are defendants, and entitled to defeat the de-mandant on the same ground.
    Stanard in reply.
    The whole amount of the decision in Norvell v. Camm was, that the plaintiff was entitled to recover in that action, (which was Ejectment,) upon twenty years’ possession. The Court did not pretend to decide on the title. Judge Roane, in his opinion, (if he does not positively say,) strongly intimates, that, if the question were on the mere right, Norvell would prevail.
    *Mr. Wickham has sedulously avoided meeting my argument. According to him, the mere equitable right of the Petitioner is converted into an absolute legal title. The Court, I insist, had no right to say that.the Patent vtas void on the ground that the land was not waste and unappropriated. That question depended on evidence, not admissible at law.
    When Norvell made his Entry and Survey. he gave notice to all the world. If Camm and Wife had superior equity, they should have interposed a Caveat against his getting a Patent; But they can not contend in a Court of law that Norvell’s-Patent should be overthrown by their mere equitable right.
    Wickham. A Caveat against the Grant to Norvell was not necessary, as we claim under a prior Patent.
    
      
      The principal case is cited in Whittington v. Christian, 2 Rand. 383; French v. Successors of the Loyal Co.. 5 Leigh 667, 674, 675; Sperry v. Gibson, 3 W. Va. 530.
    
    
      
       Witherinton v. M’Donald, 1 H. & M. 303; Alexander v. Greenup, 1 Munf. 134.
    
    
      
       Wilcox v. Calloway, 1 Wash. 38—42; Norvell v Camm, 2 Munf. 257.
    
    
      
       Alexander v. Greenup, 1 Munf. 134.
    
   The Court’s opinion was delivered by

JUDGE ROANE,

as follows:

This is a writ of right brought by the appellant against the appellees; the female appellees claiming as heirs of Thomas-Powell deceased. The mise being joined on the mere right, and the case submitted to a Jury, an exception was taken to an opinion of the Court. The bill of exceptions states that, at the trial, the tenants exhibited, in evidence to the jury, 1st, a patent of 10 September 1755, to James and John Christian and William Brown, for 3956-acres of land; which is set out; 2dly, a judgment of the General Court, of the 29th of April 1774, revesting the title of the said land in the crown for the non-payment of quitrents; which was rendered on the petition of John and Charles-Christian, and certifies that they had prosecuted their petition with effect; which judgment is also set out: 3dly, a Deed of bargain and sale, of 30th October 1777, from the said John and Charles Christian to James Gressom, for 983 acres of the said land ; and 4thly a Deed' from said Gressom to Thomas Powell, of 21st August 1787, for 433 acres of the said land. The exception then states, that the demandant then introduced, as evidence of his title, a patent of 23 November ’97, granted by the Governor of Virginia, for 669% acres of land; and that it was admitted "*that this patent was for land lying altogether within the boundaries of the first patent, to Brown and Christians, and is part of the land mentioned in the said Judgment of the General Court, and covered several hundred acres of the land in controvesy. The bill further states that, upon this statement of facts, the defendant’s counsel moved for an instruction to the Jury that the patent of the desnandant was void ; assigning as his reason that the land thereby granted was not waste and unappropriated land, and consequently not liable to be taken up by a treasury warrant; which motion was opposed by the Counsel for the demandants, who contended that the same had become waste and unappropriated by the before mentioned judgment of the General Court; but the Court, being of opinion that the said land was not waste and unappropriated land, and therefore not liable to be taken up by a treasury warrant, instructed the jury that the demandant’s patent was void: and the jury consequently found a verdict for the tenants, on which a judgment was rendered. That judgment is now before us on an appeal.

It is here to be remarked that Norvell’s patent does not-aver on its face that the land thereby granted was waste and unappropriated land. It is, however, entirely in the form prescribed by the land law, which form is silent in this particular. It states, however, that it is founded on a treasury warrant, and it will consequently be taken to convey waste and unappropriated land, if such only can be taken up by virtue of such warrants.

The patent is perfectly free from objection on its face; and, if it is to be impeached and rendered void, it can only be by means of extrinsic evidence. There is no difference in this particular between such evidence as arises from the admission of the parties, or from other sources. If testimony of the last description is not permitted to impeach a patent in a trial at law, neither can the first: the party must still recover on his patent, though he should admit facts, which, if they appeared on the face of the patent, might tend to vacate it. The principle interdicting the introduction of extrinsic evidence, *at the time, and for the purpose aforesaid, is not to depend upon the grade of such evidence. The patent must still prevail in a trial at law, unless it is in fact a felo de se; unless it carries on it’s own face the evidence of its nullity. While a patent of this last character is not to avail the party exhibiting it, (as has been decided in the case of Alexander v. Greenup,) it is equally clear that a patent, perfect on its face, is not to be avoided in a trial at law, by any thing short of an elder patent: it is not to be affected by circumstances of Equity, tending to show that, in a Caveat Court, or a Court of Equity, the party relying on it would probably prevail. The jurisdictions oí the two tribunals must be kepi distinct, and the actual patent must prevail at law, although it may be made to yield to the superior right of the adverse party in another form. In the case of an actual and perfect patent, there is no remedy but to set it aside in a Court of Equity, or in some other proceeding having that for its direct end and object. It cannot be done in the ordinary progress of a trial at law, on evidence which the party had no means to know would be relied on, and therefore could not be prepared to meet. In other words, you cannot go behind a patent in a trial at law; the patent alone must prevail. These principles seem to us clear, and are fairly deducible from the case of Witherinton v. McDonald, 1 H. and M: they ought not therefore to be departed from. We cannot consequently judicially know the facts on which the appellees reiy in this case: the principle aforesaid occludes the enquiry. And, if the case was even otherwise, we could not distinguish between this case and others. In this case, whatever be the character of the appellee’s pretensions, they do not amount to a legal title. It is, in every view, best, that a perfect and solemn patent should prevail, except against an elder one, or unless it be impeached in a proceeding having for it’s direct object the making it null: — it ought not thus to be assailed, collaterally, and by extrinsic evidence.

It is therefore not judicially known to the Court in this case, that the land conveyed by Norvell’s patent is *not waste and unappropriated land; nor that it was ever the subject of a former grant. This precludes the necessity of our deciding whether, if this were otherwise, lands in the alledged predicament of this land could be taken up by a treasury warrant. The present impressions of most of the judges are that they are so liable. They are completely revested in the crown by the judgment of the General Court, and liable to be regranted to others, with a right of preference, on certain conditions, in the petitioner; and, as the former mode of acquiring lapsed lands is done away by the act of 1779, they must be liable to be taken up by treasury warrants, or not at all. These, however, are only the present impressions of most of us. The point is therefore left open for future and more solemn decision, when it may occur.

The necessity, too, of a decision of this point, is probably not urgent, as cases of this description are gradually passing out of existence. With respect to the decision of a case, between the same parties, in this Court on a former occasion, we are of opinion that it does not interfere with or obstruct this decision. That case was in an ejectment; this m a writ of right. In that case, the Court went, or might have gone, on the ground of possession only: in this, the actual title comes in question.

On these grounds, we are of opinion to reverse the judgment, and award a new trial. On that trial, the evidence exhibited by the appellees is not to be admitted. As the instruction given by the Court was founded on evidence now interdicted by this Cou»*t, it would be superfluous to say that, on the new trial, that instruction is not to be repeated.

This is the opinion of all the judges, except Judge Brooke. He requests me to state his dissent from the foregoing opinion.

Judge Brooke has since furnished the reporter with an opinion stating his reasons for such dissent, as follows:

JUDGE BROOKE.

My opinion in this case will be little more than a commentary on the one I delivered in the same case, when it was before this Court, in the *form of an action of ejectment. In that action, the material facts in this were all before the Court. ÍTorvell the appellant was then in possession of the land in controversy, and claimed under the patent on which he now relies; the judgment of the inferior Court was against him, and he appealed to this Court, where, after long and deliberate consideration, aided by a very elaborate and able'argument on both sides, it was affirmed, and the appellant turned out of possession. Upon a correct view of the facts in that case, it is impossible to mistake the grounds of the decision. If the Patent to Norveli availed any thing, the Court would have found nothing in the 26 years’ possession of his adversaries, and of those under whom they claimed, on which, even in an action ot ejectment, to found the judgment then pronounced; for if the right to grant the land as waste and unappropriated was in the Commonwealth at the date of the Patent to Norveli, the maxim nullum tempus applied as to the Commonwealth in its full force, and the right of Norveli to the possession under Patent must have overcome the pretensions-of the lessors of the Plaintiff. In other words, if the title to the land, as waste and unappropriated, was in the Commonwealth until the date of the Patent to Norveli, the anterior possession of the plaintiff in ejectment, being much less than twenty years, gave no right to the possession against Norveli, who claimed under the Commonwealth. To have considered the Patent valid, that is, a grant of the land in question, as waste and unappropriated, by the Commonwealth, and then to have pronounced judgment against him on the ground of the naked possession of the plaintiff, of land of that character, would have been impossible. The Court then, as a preliminary to an enquiry into the title of the Plaintiffs, must have considered that no title passed, by the Patent to Norveli, to the land in question, on the ground that it was not waste and unappropriated, and therefore not comprehended by the Patent, which, reciting the treasury warrant on which it was founded, could convey land of no other description in pursuance of the Act of 1779. That this was the opinion of the *'Court, necessarily results from what was said on the title of the Plaintiffs; and, if I am correct in this, an opinion of the Court in the present case that would reverse the grounds of it’s former opinion, in a case between the same parties, and depending on the same facts, will be a novelty of which we have no example.

But, upon the merits, the former decision of this Court was correct. The plaintiffs in ejectment, and the appellees now before the Court, held an estate upon condition, under the judgment of the General Court, founded on the petition of those under whom they claim. The legal title was re-vested in the Crown by that judgment, to be transmitted to them upon the performance of the conditions therein mentioned. On the failure to perform the conditions, no forfeiture could be pronounced in behalf of the Commonwealth (on which the rights of the Crown have devolved) except by the General Court or some other tribunal substituted by law. The right to a grant under that judgment, is not limited as to-time by the Act of 1748, in pursuance of which it was rendered. Upon principle, a forfeiture could not, by the register of the land office, and the Governor who executed the Patent to Norveli, be pronounced ; and, if it could, land before patented and forfeited would not be converted into waste and unappropriated land, to be located upon a treasury warrant under the Act of 1779, if the Act of 1748 has expired, as was insisted on. The right of the Commonwealth ought to have been judicially asserted. The error is in supposing a case of this description analogous to the cases arising out of claims to waste and unappropriated lands under the Act of 1779. The right to grant for any specific land of the last description, in preference to another claiming the same right, could only be decided in a Court of Caveat, (under the authority of Johnson and Brown, and Noland v. Cromwell in this Court,) until such land was granted to some one, as the land in question had been to the Christians. The right to appropriate it in exclusion of another claiming that right, gave no equity against the Commonwealth. There being no contract express or implied on which to bottom *an equity, it gave no equity ex-contractu against another claiming the same right. The Act of 1779 only holding out the right to any citizen to appropriate waste and unappropriated land, on the terms of that Act, without a compliance with which no right accrued; if the party failed to consummate his right by not pursuing the provisions of that Act, and another more diligent obtained a grant, he had no claim upon the Commonwealth, except to another warrant with which he might take other lands: it gave no equity to any one, in preference to another. Until the claim to appropriate had been carried into a grant, the land did not take the character of property; and all controversies, between parties claiming the right to appropriate such land under the Act, were to be tried in the Court of Caveat. On these principles, the cases referred to were decided, which cases only permit such parties to come into a Court of Equity on the ground that they had been kept out of the Court of Caveat by fraud, accident, or mistake. If they had any general equity ex-contractu either against the Commonwealth or a party contesting the right, these decisions could not be supported, because the remedy would have been considered as cumulative. The case now before the Court differs then from those cases in this, that the land in question had been, before the grant to Norvell, appropriated by a grant to the Christians. The declaration in the Act of 1748, that, upon the failure of the party to perform the condition of setting, &c., after the Patent had issued, did not convert the land into waste and unappropriated land: it had been appropriated by the grant, and the Act of 1748 gave the title back to the Crown upon failure to perform the conditions required by it, to be adjudged in the General Court, upon the petition of some other person for the land lapsed. Before such adjudication in the General Court, or some other pointed out by law, no forfeiture could accrue, nor could the title revest in the Crown, nor in the Commonwealth, since the rights of the former devolved upon the latter. Indeed, under the 36th section of the Act of 1748, unless the petition was within ten years from the date of the *Patent, the title was confirmed to the Pat-entee, as if he had performed all the conditions : — the land could never lapse. The right of the appellees is now to a grant from the Commonwealth, not for waste and unappropriated land, but for land once the property of the Christians, and adjudged to the petitioners, under whom they claim, by the judgment of the General Court. For all that appears in this case, the conditions on which the appellees have a right to a Patent from the Commonwealth, may have been performed; and yet that right is to be divested by the officers of the Commonwealth authorised to issue patents, if the Court decides that the Patent to Norvell is conclusive evidence that the land in question was waste, &c. when that Patent issued. As to the ground that a Court of law cannot declare void a Patent for any thing not apparent on the face of it, that objection does not occur in this case. On the face of the Patent, it is for waste and unappropriated land: it was issued by virtue of a treasury warrant, on which no other description of land could be located according to the acts on the subject. The first enquiry is, does the Patent pass the commonwealth’s title to the land in question? In every case, before a party can recover by virtue of a grant, the land claimed must be shewn to be the land granted. If no land can be found as described in the Patent, it passes nothing. If, upon the face of the Patent, (as in the present case,) the land demanded by the party is not the land intended to be conveyed by the commonwealth under the law of the commonwealth, whatever may be his rights under it, they do not attach upon the land in question. In coming to that conclusion, it is not necessary to vacate the Patent: it is only necessary to decide that the land in controversy, having been before granted by the Crown, is not waste and unappropriated land, within the meaning of the treasury warrant, in virtue of which it was entered and located, as is recited in the Patent itself. This result is arrived at without going out of the Patent to ascertain the rights of the Patentee in relation to the commonwealth, but is deducible from the facts in the special verdict m relation to the *title of the appellees, opposed to the facts disclosed by the Patent itself. The question, whether the commonwealth has a right to grant the land of any citizen, ought not to be concluded by the Patent in a trial at law, on which it appears that the right to grant was not in the commonwealth under the law in pursuance of which the grant is professed to have been made. — that Courts of Equity are more competent to investigate the merits of a claim to a grant, in behalf of the grantee, in a controversy with the commonwealth, in which at law the grantee might insist that the latter was estopped by it’s deed, I have no doubt; but, in a controversy with a party claiming to hold the land under the law of the commonwealth, in preference to another, who, under his Patent upon the face of it, has no title to land before patented, I conceive the question of estoppel does not arise. A Patent for waste and unappropriated land cannot conclude a party, holding land of a-different description, to shew that fact, any where. In the case of waste and unappropriated land, a failure to perform what was required by the act of 1779 before a Patent issued, could not be considered as a forfeiture, but an abandonment of the claim to appropriate the land entered; and the right of the commonwealth to grant the land to another, who had complied with the terms of the Act of 1779, accrued.

But the right of the Commonwealth to grant land before granted, on the ground of a forfeiture, as in the present case, could not accrue until that right was judicially ascertained. Under the act of 1748, in relation to lapsed lands before patented, po right was reserved to the Crown to claim as for forfeiture, on the nonperformance of the conditions prescribed by the judgment of the General Court, as in this case. It’s only security, under that act, for the performance of the conditions on the part of the petitioner, was that, in the event that the conditions were not performed, some other person would again petition to have a grant for it on the same terms, and would Caveat the person claiming a grant, on the ground that he had not performed the conditions prescribed by the judgment of the General Court. This Security devolved on the Commonwealth; and it had the right to grant the land on no other terms under the act of 1748. tinder that act, the appellees have a claim of higher grade than a claim to waste and unappropriated land, which might, as before said, be abandoned at any time. As well might it be said, that a. patent would at law pass escheated land, though, upon the face of it, it was Issued upon a treasury warrant, for waste and unappropriated land, in direct contravention of the act which prescribes the mode of acquiring title to such land from the Commonwealth. Under such a construction, the Commonwealth, in consequence of the mistakes of its officers in issuing such patent, would be compelled to resort to a Court to avoid its own patent, or lose land never intended by the law to be granted, and of ten times the value of waste and unappropriated land, which it intended to grant. Upon the whole, I am of opinion the judgment of the Superior Court ought to be afSrmed. 
      
       See the Act of 1748.
     