
    
      Wm. B. Dorn vs. Carey P. Patterson.
    
    The principle, decided in Nicholas vs. Nubhavd, 5 Rich. 267, that it is no ground for a caveat that the land, for which a grant is sought, had been previously granted, reaffirmed.
    
      Before Whither, J., at Abbeville, Fall Term, 1853.
    This was a caveat, as follows :
    
      To His Excellency, Joi-iN L. Manning, Esq.,
    
    
      Governor of the State of South- Carolina :
    
    William B. Dorn, of Edgefield District, and State aforesaid and a citizen thereof, would respectfully show and give your Excellency to understand and be informed, that one Carey P. Patterson, otherwise called Carey Patterson, of Abbeville District, in the State aforesaid, heretofore, to wit: on or about the 17th day of May, in the present year, Anno Domini, 1853, directed and caused to be surveyed, by one Israel Holt, professing to act as Deputy Surveyor, a piece, parcel or tract of land, situate and being in the District of Abbeville and State aforesaid, and represented in the plat thereof made and certified by the said Israel Holt, for the said Carey P. Patterson, bearing date the day and year above stated, as containing fifty-seven and one-half acres, and as lying on a branch of Little River, waters of Savannah River, and as bounded on the North-west by land of the said Carey P. Patterson, and on all other sides by lands of the said William B. Dorn; and the said Carey P. Patterson after-wards, to wit: on the 5th day of the present month of September, in the year aforesaid, caused the plat of the said tract of land, so made by the said Israel Holt, to be filed in the office of the Surveyor General of the said State at Columbia, and thereupon alleging and pretending that the said tract of land, so surveyed and certified for him by the said Israel Holt, had not been previously granted and was vacant, asked and demanded a grant thereof to himself from the said State, in conformity to the provisions of the Acts of the General Assembly of the said State, regulating the manner of obtaining grants of vacant land.
    
      And the said William B. Dom gives your Excellency further to understand and be informed, that the said tract of fifty-seven and-a-half acres of land above described, and for which the said Carey P. Patterson is now seeking a grant to himself, and every part and parcel thereof, has been heretofore granted by the said State, and is no.w, and has been for a long time, to wit: fifteen years last past, the estate, right and property of the said William B. Dorn; and those under and through whom he claims the same, have held and enjoyed, in succession and continuously, a peaceable and undisturbed possession and actual occupancy thereof, for a period of forty years and upwards now last past.
    Wherefore the said William B. Dorn affirms and avers, that the said tract of land, and every part and parcel thereof, is his own freehold, estate and property, and is not subject or liable to be granted by the said State as vacant land, and therefore hereby respectfully enters and files his caveat, and protests against the issuing of a grant thereof, or for any part thereof, to the said Carey P. Patterson, and prays that such proceeding and determination may be had thereon, according to law, as to justice and equity shall appertain.
    The allegations, in the suggestion, that the land had been previously granted, and that the plaintiff, Dorn, was the owner thereof, were traversed by the defendant, Patterson.
    His Honor, upon the motion of the defendant, ordered the suggestion quashed.
    The plaintiff appealed on the grounds :
    1. Because W. B. Dorn offered to prove that the land (“Dorn’s Gold Mine”) for which Carey P. Patterson desired a grant, had been previously granted by the State.
    2. Because W. B. Dorn offered to prove, either before the Judge, or on issue before a jury, every allegation of fact contained in the caveat, viz : that the land had been previously granted — that he could connect himself with the original grant, by an unbroken chain of title, and by possession under it, for forty years.
    
      3. Because, when land has once been granted by the State, as vacant land, it is in violation of truth, as well as law and justice, that the State should grant the land a second time, as vacant.
    
      Bauskett, McQowen, for appellant.
    Thomson, contra.
   The opinion of the Court was delivered by

Whitner, J.

It will be perceived by the report, that this case was decided on circuit, upon the authority of the case of Nicholas vs. Hubbard, 5 Rich. 267. The counsel submitting his present motion, conceded the exact analogy, and expressed a desire to be heard, notwithstanding, by way of review.

As the question involved was of somewhat novel impression, wholly so in the Court of Appeals, as the case adjudged had not received the approval of the whole Court, and another member had been added to the. Court, the occasion was deemed opportune to review that decision.

The examination now given has resulted in the affirmation of the case of Nicholas vs. Hubbard; and in dismissing the present motion, I conceive there is nothing more necessary than to refer to the opinion of Wardlaw, J., which will be found to contain and present a full consideration of the different questions raised.

An application to the files of the office of Secretary of State, has furnished some ten or a dozen cases, embracing a period from 1810 to 1835, in which it is said, Circuit Judges sitting as a Court of Caveats, have entertained jurisdiction of like cases, and granted the, remedy sought. Long acquiescence is often imposing, and always entitled to consideration. The precedent of a few years undisputed, not unfrequently becomes the authoritative rule of after times. This argument has been pressed on the present occasion, and some of us at least have felt its force. It must be observed, however, that these cases were subjected to no scrutiny, and acquiescence is deprived of the usual sanetion, when it is perceived that those whose rights were thus supposed to have been settled, may in each case have abandoned the further prosecution, from a conviction that no final benefit could be derived from the contest. The discovery of a previous grant might well authorize a withdrawal from the contest, independent of all considerations that might arise as to the mode of adjudicating that question.

A just interpretation of the Acts creating this tribunal, and defining its powers and duties, authorize the views taken in the previous case, and the evil which is apprehended from the present ruling will be readily remedied, either by .an enlargement of powers giving eifect to any judgment that may be rendered binding on all parties,-so that when the case is heard there may be an end to litigation, or otherwise, as the Legislature may think proper.

The motion to reverse the order on circuit is dismissed.

Wardlaw, Withers and Glover, JX, concurred.

O’Neall, J.,

dissenting. In this case, I desire to do what perhaps I ought to have done in Nicholas vs. Hubbard — state my reasons for differing from the conclusions of the majority then and now.

The Governor, in ’84, was authorized to sign grants to be delivered to the grantees of vacant lands. None other is granta-ble. When the Governor has notice that the land for which a grant is sought to be obtained, is granted land, how can he sign such grant, until the fact is ascertained to be true or false? The Act of ’84 authorized the Governor and five members of the council, when any fraud or collusion was alleged in the progress of the “ entry, ” as it is there called, to try the same. From this, grew up the proceeding by caveat and the power of the Court of Common Pleas to try it.

A caveat is nothing but a notice not to do a particular act, such as signing a grant. It is admitted, if there be fraud or collusion in the survey, the Court of Common Pleas may try it. But it is said, surveying granted lands is not such a fraud. The Legislature, in 5 Stat. 74, so regarded it. Indeed, I know no greater fraud than it is. A fraud is perpetrated by a false assertion, which affects another’s rights. That is here, for the warrant of location and survey allege that the land is vacant. This is false. It affects most materially the grantee under the former grant. It gives another color of title, under which he may, by adverse possession, steal away the whole of his land.

The Surveyor General’s instructions to his deputy are violated ; for he is charged to survey none but -vacant land. If he be informed that his deputy has violated his instructions, how can he certify the survey ?

But it is useless to reason; for the practice from ’93 to ’46 has been uniform to caveat the issuing grants on the ground that the land was granted.

Mr. Bauskett, the counsel for Mr. Dorn, has produced a host of precedents from the Secretary of State’s office, beginning with one from Camden, between Russel and Ballard, ( ) in ’93, and ending with one from Newberry, between Kenner and Henderson, () in ’46. If. these cannot stay the overturning of the authority of the Court of Common Pleas, to try a caveat against issuing a grant where the land has been granted, it is unnecessary for me to do more than say, I abide by a well settled practice, as old as myself.

Motion dismissed. 
      
      (а) In Russel vs. Ballard, final order was made as follows:
      “ Upon a caveat dated the second day of January, in the year of our Lord one thousand seven hundred and ninety-three.
      “ It appearing to the Court, upon a view of the plat and original survey under which the plaintiff claims in this case, and upon examination of witnesses, that the Southern boundary of the said plat and grant calls for the Northern boundary of ‘William Wiley and William Itussel, which Northern boundary was clearly proved to be a plain and known line antecedent to the plaintiff’s grant, and that the defendant hath improperly platted a survey, and attempted to obtain his grant for ninety-eight acres between the boundaries aforesaid; On motion of Mr. Ford, ordered, that the caveat in this case be sustained, and that the defendant’s survey be recorded with costs.”
     
      
      (b) In Kenner vs. Henderson, the final order is as follows:
      “ In the Common JPleas, Newbemj X)i$tHct> Ball Term} 1846.
      The State of South-Carolina, > In the matter of the caveat entered by Samuel E. Newberry District. ) Kenner against James M. xAenderson, to prevent him from taking a grant for certain lands lying on Broad Biver, in said district, bounded by lands granted to John O’Neall and others.
      “It appears to the satisfaction of the Court that all the lands for which the said James M. Henderson sought to obtain the grant, had been granted before tho time of the survey by him, except a small quantity, supposed to be about one acre.
      “Ordered that the said caveat be confirmed, except as to the said small quantity of land, and that the said applicant, James M. Henderson, be not permitted to take out said grant, this order not, however, to preclude the said James M. Henderson from procuring the said small quantity of vacant land to be surveyed and granted to him.
      Bdwaud Hrost.
      October, 22d, 1846.»
     