
    OCTOBER TERM, 1785.
    John Kelly’s Lessee against William T. Greenfield. The Same against Henry G. Sotheron.
    EJECTMENT for a tract of land called Kelly's Fortune, containing 182 acres, lying in St. Mary's county, and described and located upon the plats in the cause as the plaintiff’s pretensions. The defendant pleaded not guilty ; and it was agreed that judgment should be entered for the plaintiff for possession ar 1 ' ’ ’ to his pretensions, subject to the opii due to him by renewment of a warran granted him by renewment, the 271 And that on the 6th April, 1707, the said Thomas Greenfield assigned to Thomas 'Trueman Greenfield., 100 acres of the said warrant. upon a case stated. By which case that Thomas Trueman Greenfield, on vember, 1706, obtained out of the ' land-office, a common warrant for 1
    In virtue of which warrant, the said Thomas T. Greenfield afterwards had surveyed and laid out for him, a tract of land called Callicome, lying in St. Mary's county, containing 100 acres, by a certificate dated 16th April, 1707. In consequence of which warrant and certificate, a patent issued from the lord proprietary to the said Thomas T. Greenfield, on the 18th of June, 1708, for the said tract called Callicome.
    
    That a certain Henry Peregrine Jozulcs obtained a common warrant, in virtue of which warrant, he had surveyed for him a tract of land called Jotules’s Calf 
      
      Pasture, lying in St. Mary’s county, containing 112 acres, and certificate thereof was returned, dated the 16th of April, 1707. Upon which warrant and certificate, a patent issued on the 10th of October, 1708, to the said Jowles.
    
    That the said Thomas T. Greenfield being possessed of the said tract of land called Callicome, by virtue of his -survey and patent, and the said Henry P. Jowles being possessed of the said tract called Jowles1 s Calf ■ Pasture by virtue of his survey and patent aforesaid, the said Greenfield and Jowles so being possessed, did, on the 25th of February, 1711 — 12, by their deed of conveyance, duly executed, acknowledged and recorded, convey the said two tracts of land to a certain William Blackman, his heirs and assigns for ever.
    That at the time when the said deed from Greenfield and Jozvles to Blackman was executed, a certain John Davie passed and duly executed his obligation, sealed with the seal of the said Davie, to the said William Black-man, in the penalty of one hundred pounds sterling money, conditioned, that the said William Blackman, his heirs and assigns, should for ever peaceably hold, occupy and enjoy, the said tracts of land so as aforesaid conveyed to him by the said Greenfield and Jozvles, which said obligation and condition were then endorsed on the said deed.
    That the said Blackman being possessed as aforesaid, of the said two tracts of land, by virtue of the deed aforesaid, and the said obligation and condition being iu full force, not released, destroyed or annulled,•depai’ted this life on or about the 1st day of April, 1712, intestate, and without heir's.
    That John Kelly, the lessor of the plaintiff, after the death of the said Blackman, on the 18th of October, 1751, obtained out of the lord proprietary’s land-office an escheat warrant, and. had surveyed for him in virtue of said warrant, the quantity of 182 acres of land, part of the said tracts of land called Callicome and Calf Pasture, and called the same Kelhfs Fortune, and certificate thereof was returned, dated the 10th of March, 1752.
    
    That the said Kelly afterwards obtained from the lord proprietary an escheat patent, dated 29th October, 1753, for the -said tract of land called Callicome and Jowles’s Calf Pasture, or for such part thereof as is included by the lines of the said tract of land called Kelly’s Fortune, containing 182 acres, for which the present ejectment ip brought.
    The defendants take defence for a tract of land called Holbridge Town, as located upon the plats returned in the cause, and admitted to be truly located.
    That a common warrant heretofore issued to a certain William Joseph, for 2,000 acres of land, bearing date the 26th of March, 1707, and that William Joseph, on the 1st day of April, 1707, assigned 260 acres, part of the said warrant, to John Davie aforesaid. That the said John Davie had, by ♦irtue thereof, on the 7th day of April, 1707, laid out and surveyed for him a tract of land called Holbridge Town, lying in St. Alary’s county, containing 260 acres.
    That afterwards, to wit, on the 25th day of February, 1711 — 12, the said Davie not having tafcen out a patent on the said certificate, did enter into a bond under his hand and seal, and the same delivered to the said Greenfield and Jowles, which said bond was as follows:
    
      Maryland, St. Mary’s county, ss. Whereas Thomas Trueman Greenfeld, and Henry Peregrine Jowles, of St. Mary’s county, were lawfully seised in their demesne as of fee-simple, of, in, and to, two several tracts or •parcels of land, lying in, St. Mary’s county, containing two hundred and twelve acres ; and forasmuch as the said Greenfield, and Jowles, of their mere motion, have aliened and confirmed the same to William Blackman by conveyance, bearing even date with these presents, in fup satisfaction of a debt of sixteen pounds two and eleven pence, due from me the subscriber to Mr. John Parry of Charles county, and in discharge of all debts, accounts and reckonings, between the said William Black-man and me the subscriber. Therefore I the subscriber, John Davie, do oblige myself, my heirs, executors, and administrators, with all convenient speed to repair to the Provincial Court, and there in lawful manner release, relinquish and quit-claim, of all my right, title and interest, of, in, and to, a certain tract of land called Holbridge Town, containing about two hundred and sixty acres; and after, procure a warrant for the like quantity renewed by his lordship’s agents, and the same assign and set over to the said Greenfield and Jowles, or their heirs, under the penalty of three thousand pounds of tobacco, to be recovered of me by the said Greenfield, or Jowles, upon non-performance. In witness whereof I have hereunto set my hand and seal, this 25th day of February, 1711 — 12. * (
    “ JOHN DAVIE.”
    That the said John Davie did not, according to the terms of the said bond, ever release his right in any other manner than is hereafter mentioned, to the said land called. Holbridge Town, or did ever take out any other warrant for other land in lieu thereof; but that afterwards, on the 27th October, 1711 — 12, the said Davie did assign under, his hand and seal, all his right, title and interest, to the said tract of land called Holbridge Town, and the certificate thereof to the said Greenfield and Jowles, who, on the 10th of December, 1714, obtained a patent from the lord proprietary for the said tract.
    That the said Thomas T. Greenfield and Henry P. Jowles, from the date of the said patent of Holbridge Town, were, and until their respective deaths, continued possessed of the same land, by virtue of the patent thereof, and that the said Greenfield and fowles in their life-time, made partition thereof, and paid the annual quit-rents due to the proprietary for the same. That the said Greenfield died possessed of his moiety (for which the defendant William Trueman Greenfield takes defence) in the year 1733, leaving fames Trueman Greenfield his heir at law, and to whom the said moiety descended, which said fames T. Greenfield continued, by virtue of the descent aforesaid, possessed thereof during his life, and paid the annual quit-rents due to the proprietary for the same.
    That the said fames T. Greenfield also died possessed of the same moiety of Holbridge Town, some time in the year 1760, leaving William T. Greenfield the defendant, his heir at law, to whom the same descended, and who hath ever since been possessed thereof, and paid the annual quit-rents due to the proprietary for the same.
    That the said Henry P. fowles died possessed of his moiety of Holbridge Town, (and for which the defendant Henry Greenfield Sotheron takes defence,) sometime in the year 1726, leaving Rebecca fowles and Mary fowles, his daughters and coheiresses, to whom his moiety descended, who by virtue of said descent became and continued possessed thereof during their lives, and paid the annual quit-rents due to the proprietary for the same. That the said Rebecca, in the year 1761, and the said Mary, in the year 1732, respectively died possessed of the same moiety, to both of whom the defendant Henry G. Sotheron, is heir at law, to whom the said moiety descended; the said defendant being ever since the respective deaths of Rebecca and Mary, possessed thereof, and hath paid the quit-rents to the proprietary.
    That the plaintiff’s and defendant’s pretensions, and the illustrations thereto, are truly located on the plats returned in these suits, and that the tract of land called y • Kelly’s Fortune, includes the lands called Callicome and yowlcps Calf Pasture, as delineated on the plats; and that the tract of land called Holbridge Town also includes the lands called Callicome and foxoles’s Calf Pas - ture, and that the tract of land called Holbridge ■ Town, and the tract called Kelly’s Fortune, so far as it interferes with and includes Holbridge Town, are one and the same land as Callicome and fozules’s Calf Pasture, and that Kelly’s Fortune and Holbridge Town interfere as described on the plats.
    That the lessor of the plaintiff was, by virtue of his escheat patent, seised and possessed of that part of Kelly’s Fortune which does not interfere with Holbridge Town. And his seisin and possession has so continued to the present time, and has paid quit-rents to the lord proprietary for the whole of Kelly's Fortune, from the date of his patent to the present time.
    It is submitted to the Court upon the whole of the case stated, whether the title of the tract of land called Kelly’s Fortune, which interferes with, and lies within the bounds and lines of Holbridge Town, be in the plaintiff. If the Court should be of opinion that Kelly’s Fortune be in the plaintiff, then judgment for possession thereof, and costs. If not in the plaintiff, then judgment for costs to be entered for the defendant.
    
      T. Stone, for plaintiff.
    
      W. Cooke, for defendant.
    Stone, for the plaintiff.
    By the statement of this case it appears, that in 1707, April 1st, certificate of-survey was made of Holbridge Town for John Davie.
    
    On April 16th, 1707, a certificate of survey was made of Callicome and Joxvles’s Calf Pasture, for jowles and Greenfield. On the 16th April, 1708, a patent was granted for Callicome, and on the 10th October, of the same year, a patent was granted for Jowles's Calf Pasture.
    
    On the 25th February, 1711 — 12, Greenfield and Jozvles conveyed by deed Callicome and Jozvles’s Calf Pasture to William Blackman in fee, and on the same day, John Davie executed a bond to William Blackman, endorsed on the said deed, conditioned that Blackman, his heirs and assigns, should enjoy the land conveyed to him by Greenfield and Jozvles.
    
    Also on the same day, John Davie executed a bond to Greenfield and Jowles, conditioned that he would, release all his right to liolbridge Tozvn, and procure a warrant for the like quantity of land, and assign the same to said Greenfield and Jowles.
    
    
      April 1st, 1711 — 12, William Blackman died intestate, and without heirs.
    
      October 27th, 1711 — 12, John Davie assigned the certificate of Holbridge Tozvn to Greenfield and Jozvles. And on 10th December, 1714, a patent thereon issued £o Greenfield and Jowles, who entered, paid quit-renfs, and, died seised thereof.
    On 29th October, 1753, John Kelly, the lessor of the plaintiff, obtained an escheat grant on Callicome and Jowles’s Calf Pasture, by the name of Kelly’s Fortune.
    
    
      Kelly’s Fortune and Holbridge Tozvn are the same land, as far as they interfere with each other.
    The first question for the Court to decide is, what estate Blackman acquired,, and what would have been the decision, if the suit had been between Blackman and Greenfield and Jozvles ? ■
    
    It is' doubtful whether the assignment by Davie to Blackman was before or after the conveyance from Greenfield and Jozvles to him. If it was before, all the interest which Davie had^ passed. If it was after the conveyance, it maker, no difference.
    
      ' The land was sold for a valuable consideration to Greenfield and Jowles by Davie, and no deed was necessary to pass an equitable interest. Cites 1 Ld. Raym. 690. Carth. 63, 64. Cro. Eliz. 352. Co. Litt. 207.
    
    F. T. Chase, for the defendant.
    A covenant operates as a release only when there is no remedy left, but not otherwise. The writing by Davie on the deed, is nothing but a covenant for quiet enjoyment. Blackman, if he had been disturbed in his enjoyment, had his remedy on the covenant. Davie was not a party to the deed, nor is Holbridge Town mentioned. Blackman was never molested, but enjoyed the full benefit of the covenant.
    The bond from Davie to Greenfield and Jowles, cannot be a release of his equitable interest to Blackman, who was no party to it. The consideration moved from Greenfield and Jowles, and the .bond was for their benefit. Blackman could not avail himself of it for a noncompliance. Davie was to repair to Annapolis, and relinquish all his right to Holbridge Town, obtain a warrant for other land, and assign it to Greenfield and Jowles. This assignment could be made to no one but Greenfield and Jowles. The bond is executed to them, and though it does not mention that a release should be made to them, yet it follows of necessity, because they are parties, and it is not said it should be made to any one else.
    No patent could issue on the certificate of Holbridge Town to any one but Davie, before the assignment made by him, so that the equitable interest still remained in Davie. The assignment by him to Greenfield and Jowles, was on the 27th of October, 1712, which was subsequent to the death of Blackman. Blackman's interest in Callicome and Joxvles's Calf Pasture had there-lore ceased and his estate was extinct. When Greenfield and Jowles obtained the assignment they had the equitable interest in, and right to, the land. And when the patent was obtained no ¡mesne grant stood between their patent and the certificate of Ilolbridge Town.
    
    The relation of a patent to the certificate is a rule or principle of law, and not a fiction, because the certificate is the commencement of the title, and is like a deed of bargain and sale, -which after enrolment relates to the date of the deed. But before the enrolment the bargainee has only an equitable interest. The enrolment is the completion by which the legal estate passes, and overreaches a deed of a later date, though enrolled prior.
    But admitting the relation ofa patent to the certificate is a fici-ion, no injustice will be done, for Blackman’s estate was extinct, and no person had any claim or interest in the land but the lord proprietary and Greenfield and Jowles, so that no estate was devested.
    The cases cited are good law, but they do not apply to the present case. Cites Grounds and Rudiments, 145. 1 Stra. 97. If one who is insane wounds himself and becomes sane and dies, he is not a felo de se. 1 Co. 99.
    Where the stroke is given on one day, and death ensued on another, the indictment must lay the murder on the last day. 4 Co. 42.
    Common law conveyances are preferred. The enrol?nent relates in order to secure the bargainee against mesne conveyances, but not to devest a good estate so as to vest one in the bargainee himself. 4 Co. 71.
    
      Co. Lift. 265, A warranty will rebut a future right against an heir. The warranty here is special, not general, and the reason why it rebuts agiiinst an heir is to prevent circuity of action.
    On warranty against the feoffor and his heirs, no warrantia charla lies, unless the word dedi be in the deed. Dedi binds only during the life of the feoffor. 22 Vhu 418. pi. 11.
    
      Warranty here cannot operate as to a subsequent interest acquired by Greenfield and Jowles, because Black-man was dead and his estate extinct before the subsequent interest accrued by the assignment of Davie. A warranty expires with the estate to which it is annexed. Co. Lift. 385.
    There was no fraud or concealment by Greenfield and Jowles, on obtaining the patent on Holbridge Town. The land in question was not es cheat able, if it were, they did not know it, and it cannot be intended they did, for nothing can be intended which is not stated.
    If a recital is true it is sufficient, there can be no in™ tendment beyond the words. 1 Co. 43. 2 Co. 54. 56. If the King’s grant will bear two constructions, the one making it good, and the other making it bad, the former shall prevail. 1 Co. 67. b. 6 Co. 6. a. Skin. 663. Fitzg. 308.
    Supposing the land was escheatable, the length of possession, rents paid and descents cast, will confirm the defendant’s title, because they show in the strongest manner, that the lord proprietary admitted them as tenants and waived the right of escheat. 2 Bl. Com. 244. Co. Litt. 263. a. 1 Bl. Rep. 174, 175.
    There was a possession held under the patent from the-10th of December, 1714, and payment of quit-rents for 39 years before the escheat grant.
    
      Martin, (Attorhey-General,) for the defendant.
    The writings by Davie contain no words or expressions of release, nor can they operate as such except from necessity. When one may comply with his engagement and' still retain some interest, the writing shall not operate as a release. When the party has several remedies, and covenants not to use one of them, the covenant shall not operate as a release.
    As Davie only engaged not to disturb Blackman and his heirs, the Chancellor would not have decreed a coaveyance of the land, but would have enjoined against disturbance, li Dame’s bond to Blackman is a release, that to Greenfield and f envies is nugatory. The latter is for doing certain acts in futuro. The two neither jointly nor separately can operate as a release.
    When the books speak of a warranty, they mean a general warranty. And as to the cases where a warrantia charta will lie, sec Cro. Eliz. 861. 364. Fitz. N. B. 812.
    Estoppels are odious and are not favoured in law. Vin. Abr. tit. Estoppel, 423. 422. pl. 6. There is no estoppel where an estate for life is conveyed, because nothing passes before livery. Before the statute of uses, a deed of bargain and sale was no estoppel. Fin. Abr. tit. Estoppel, 462. pl. 18.
    As to the jura regalia, he doubts whether the privileges which belong to the Icing were granted to the dukes and earls of counties palatine. 2 Inst. 204, 205. They had power to erect Courts of Justice, appoint officers, &c. Dams, 62, 63. They have royal jurisdiction and royal seigniories. The latter consists of royal services and royal escheats. But there was not the same reason they should have the privilege of nullum tempos, &c. and of avoiding grants in certain cases. It cannot be supposed that they were so engaged in public affairs as to have no time to attend to their private concerns. The statute of 9 Geo. III. limits the privilege of nullum tern-pus occurrit regi to 60 years. There is no mention in that statute of counties palatine. The Court of Appeals, in the case of Carvill’s Lessee v. Griffith, at May term, • T/69, decided against the jura regalia being in the lord proprietary.
    The lord can take advantage of a warranty only where the land is forfeited, because in that case the title is not extinct, but continues. 4 Bac. Abr. 210. 212. Fenk. Cent. 304. 3 Lev. 135. Fenk. Cent. 14. The king’s grants operate as feoffments with livery of scisin, 5 Co. 94. b. 4-Bac. Abr. 206. They cannot pass a freehold in futuro.
    The proprietary rights are contained in the 4th, 5th 16th, 18th and 19th sections of the charter. The three latter sections show what privileges he w;as to have. Under the 5th section, which is general, he might do anything. But the, king could not grant to a subject the privilege of nullum tempus, Popham, 26. It was not necessary that a dignified subject should have that privilege, though the state of Maryland, independent and sovereign, has all the privileges of sovereignty.
    When a patentee has a right to sue in the king’s name, it is considered as the king’s suit. 4 Bac. Abr. 202. The king may sue in any Court he pleases. Ib. 214. And the party, to avail himself of the prerogative, must sue in the king’s name. The king’s grant shall never be construed to do wrong. 2 Bac. Abr. 105. 4 Bac. Abr. 214.
    
    If part of the description of a thing be false, nothing will pass by the king’s grant, and this was the principle on which Legate’s case, 10 Co. 109. was determined.
    There is a great difference between bonds and grants. The former are only chases in action in a Court of Law, and cannot extend far, and no great injury could result from setting it aside. It is otherwise as to grants of lands, which are transferred from man to man. 5 Bac. Abr. 333. Can a feoffment, with livery, obtained by fraud, be declared void ? A person cannot be an intruder if he enters under the king’s grant. 4 Co. 58. a.
    Stone,
    in reply. A covenant will amount to a release. Hob. 35. Whatever is covenanted to be done, is considered in equity as done. In the bond from Davie to Greenfield wad fotvles the words are “ release, relinquish and quit-claim,” which show that the assignment was to be made to Blackman, who had purchased the land from ■ 
      Greenfieldcxidjorvles. Blackman could have obtained possession by a bill in equity against Greenfield and Jarcies.
    
    It has not always been the opinion of lawyers that the patent on an escheat should relate to the first certificate, so as to overreach a mesne grant. If, in truth and fact, Davie had the legal estate when the certificate was dated, the land was conveyed by the /deed to Greenfield and Jowles. Relation is always a fiction of law. There is a wide difference between a deed of bargain and sale and a patent, as to relation.
    In the case in Coke Littleton, it was immaterial whether the warranty wras general or special. The security by warranty is favoured in law. A man does not warrant against his title but against himself and his heirs, and if he acquires a title paramount, the title conveyed with a special warranty will bind him and his heirs. As to estoppel, (Co. Litt. 363.) a deed indented is a deed of both parties, and therefore both are estopped by it. 1 Bl. Rep. 163. 2 Bl. 245. As to jura regalia, there is justice, fitness and policy, in allowing to the supreme governor those rights which are now denied him. One who is at the head of, and engaged in, the management of public affairs, ought to be protected against fraud and deception. The counts palatine, when those rights were transferred, were persons of consequence, and had honour nearly equal to the king, and might be more attentive to the interests of the people. 1 Bl. Com. 118. Bracton,l. 43. c. 8. s. 4. Jura regalia are the rights, privileges and exemptions, to which the supreme governor is entitled. 1 Bl. Com. 117.
    
    As to the question whether the lord proprietary has been injured by the grant: A grant of the king will be void, if it has not been granted upon a true and just consideration, or if it has been on falsi suggestio or veri suppressio. The Courts in England have, it is true, by-subtleties destroyed the operation of the king’s grants.
    
      Here the consideration is, not true, and the land is granted on a supposition of facts which did not exist, and on a supposition of facts which were in the knowledge of the grantee. Suggestions which áre not true, flowing from the king, will not vitiate the grant. If it is an act' of benevolence, the grant is not void. The lord proprietary did not solicit Greenfield and Jowles to take the grant ; they obtained an assignment of the certificate, brought it to the land-office and requested a grant.
    As to Legate's case, and the cases in 3 Lev. 135. and in Skinner, 663. the question was, whether the grant was void. The king was deceived in the suppression of a fact in the knowledge of the grantee. 4 Bac. Abr. 211. It was the case of an advowson. It was immaterial how the king came by it. There was only a mistake in the description. The grant is good if there be sufficient certainty to identify the thing granted. It is not necessary that it should appear on the face of the grant that there was a deception. It did not appear on the grant in Legate's case that deception had been practised.
    Feoffment with livery will convey a chattel interest. It does more; it subjects the feoffor to be considered by the reversioner as a disseisor. 2 Bac. Abr. 200. Livery will not prevent the operation of a deed; where the livery is unnecessary, it is merely surplusage. In the case cited from Levinz, if the patent had not been void, the plaintiff must have recovered.
    Patents are not records, and may be averred against. Courts are now more liberal than they formerly used to be, in allowing parties to abide by the merits in ejectments. For where was the necessity of sending parties into Chancery, if the merits of the case could as well be tried at law ?
    As to payment of quit-rents and descents, the lord proprietary cannot be disseised, consequently a descent cannot be cast. 2 Bac. Abr. 98. Admitted that the payment of rent is an affirmance of the title of the king. But the receipt of rent is not a transfer of the interest. The rent is received as the services which are due, and no act in pais will strip the lord proprietary of his right; 2 Bl. Com. 244. and 1 Bl. Rep. 174, 175. is good law, as to the lord in fee, but is not applicable to the lord pro prietary.
    The case of Carvill's Lessee v. Griffith, was not similar to the present case in fact or in principle. There the common warrant was taken out, the survey made and the caution money paid after the escheat fell.
    Admitted the lord proprietary might grant the possibility of an escheat. It is the duty of the officers to inform themselves, when there is an application for a common warrant, so ' as to guard purchasers for a valuable consideration in that case.
    
      
       We regret that it has not been in our power to obtain the whole of the very able and learned arguments delivered by the counsel in thi cas^ ^
    
   Harrison, Ch. J.

delivered the opinion of the Court. In this case certain questions have been argued and the Court proceed to give their opinion thereon.

1. What estate William Blackman acquired under the deed from Greenfield and Jozules f

Answer. An absolute fee-simple in the whole of two tracts of land called Callicome and “ Jowles’s Calf Pasture,” except such part thereof as lay within the lines of the tract called “ Holbridge.” In this he acquired a. defeasible estate, liable to be destroyed by Davie or any assignee of his, besides Greenfield and Jowles chaining a patent for it.

2. Whether John Davie had not the equitable interest in the tract of land called Holbridge, when Greenfield and J ovules executed their deed to William Black-man ?

Answer. From the facts, he had. the equitable interest.

3. Whether Davie’s bond, endorsed upon the deed from Greenfield and J ovules to William Blackman, did not ope-. rate as a release, and transfer all Davie's right in the tract of land called uHolbridge," for which he had obtained a certificate so far as it lay within the tracts of land called “ Callicome" and “ Jowles's Calj Pasture P"

Answer. This point cannot be determined, for want of a fact being stated. A bond, like the one given by Davie', may operate as a release, and transfer an equitable interest. And if there existed nothing more in the case, Davie's bond might well be considered to have transferred all the interest he had in the tract called “ Holbridge f lying within the lines of “ Callicome" and u Calf Pastured' But it appearing by the state of the case, that Davie, on the same day that he executed the bond to Bhckman, executed one to Greenfield and Jowles, for releasing “ all his right, title and interest, in “ a certain tract of land called “ Holbridge," contain- “ ing 260 acres,” we cannot say that Davie's bond to Blackman transferred all his equitable interest, because it is not stated, that its execution was prior to that of the other bond.

4. Could Greenfield and Jowles, by procuring an assignment of the certificate from John Davie of “ Holbridge u Town," and a patent upon the same, defeat and avoid their deed to William Blackman, for such part of “ Hoi- bridge Town" as lies within “ Callicome" and “ Calf Pasture," supposing he were living, against their warranty ?

Answer. We are of opinion that they could not! their deed with warranty would always have protected Blackman and his heirs, and any assignee by actual purchase or assignment, against any claim which they or any claiming under them could set up. And the relation of the patent, obtained on the assignment of the certificate from Davie, could never have been carried quo ad Black-man, his heirs and actual assigns, beyond the date of their deed to • him.

3. Would not the proprietor, upon the death of WilHam Blackman, without heirs and dying intestate, stand in the place of William Blackman, and in consequence estoppel and warranty under the deed from Greenfield and fowles to Blackman, that Blackman himself would have been entitled to, had the action been between Black-man and them ? of his right in escheat be entitled to all the benefits of

Answer. We are of opinion, under the circumstances of this case, that the proprietor could not take advantage of the warranty: because his right in escheat is by a title paramount, and an implied condition annexed to his grant. That he is in in the post, and he could net be considered, upon any ground of fair reasoning or construction, an assignee within the contemplation of the parties, or the expressions of the deed.

6. And if the proprietor would have been entitled to the same advantages under the deed, that William Black-man himself would have been entitled to, is not his patentee, John Kelly, under the escheat warrant, for want of heirs of Blackman, entitled to the same benefit ?

Answer. The proprietor not being entitled to the same benefits under the deed from Greenfield aud Jowles to Blackman, that Blackman himself would have been entitled to, of consequence his patentee could not be entitled to the same. But it is not a sound or a legal principle, that a patentee can take or have all the rights which the proprietor might be entitled to, even where it is clear, that an indefeasible title by escheat had fallen. He cannot take, by assignment, a right of entry, especially while the possession is full.

7. Had the proprietor the same rights with respect to Maryland, that the king of Great Britain had in England, in consequence of the fifth section in the charter to him by the king, from his being lord of the fee ?

. ¿{newer. We are clearly of opinion he had not. His rights were derived under the charter ; the 4th section of which grants to him “ all and singular such ample fights, jurisdictions, &c. as any Bishop of Durham within the hishopric or county palatine of Durham had.” The law writers upon the subject of the palatinate ,rights, A. 60. Davie, Blackstone, &c. ip enumerating the rights, have never .placed them upon a footing with the Court? of the king» and the maxim, ‘f nullum tempus occwrit r.egi,” has never been applied, that we cap find, to any but the king himself. And it is. a prerogative maxim, which if mu?t have ceased to have heen whenever it became applicable to any subject. Ip the hands of the crovm.it is an inconvenient one, but being placed there, jt is still permitted to continue j but even there it has been greatly restrained by the act of 9 Geo. III. c. —.. It neyer was in the proprietor, because never in the Bishop of Durham-, apd there could have beep po very good pretext for the judges to adopt it here, because he never busied himself extremely in the affairs of Maryland, which was the ground of its being at first established in the case of the king ; ,i. e. his constant attention to the public weal and the public concerns, to the neglect of his private affairs. Besides, it is an unjust, injurious and inconvenient rule, with respect to the citizens, and as such not being expressly given, it ought pot to be permitted to operate,

8. Whether would the acceptance of the rent by the proprietor or his- officers, from Greenfield and fatales and their heirs, supposing him entitled to the land? which Blackman had as an escheat, bar him of his right in escheat?-

Answer. We are of opinion, that even if a right of escheat had ever, fallen, that the acceptance of rent? as, stated in the . case, would have barred the proprietor ;. his title by escheat was a tifie in pais, and no.t of record. The king’s title by escheat is a title in pais, and the proprietor’s title could only be completed by his entering into the land, or bringing a writ of escheat after the title by escheat fallen. For having once parted with the fee by a formal and solemn grant, he had nothing left in him but an interest in possibility. In reverter depending on the remote contingency of the patentee, or any assignee under him or his assignees in futurum, dying without heirs, and, therefore, till re-entry or bringing a writ of escheat, and a recovery, the estate is not revested in him ; and as the estate was to be revested in him by a matter in pais, “ an entry,” it might be continued out of him by matter in pais, viz. acceptance of rent; and in this way-are all the authorities to be understood.

10. Whether the proprietor could be disseised Or barred of his title in escheat by the possession which Greenfield and fowles had, their dying seised, and the descents to their heirs ?

Answer. We are of opinion, that if ever he had a right in escheat, the descent would have barred him had he been a party in the present action ; ex consequenti his patentee. His right was in pais, and might be defeated by matter in pais; and upon the distinction of his right, being in pais, and of its being upon record, all the authorities are to be reconciled. Further the proprietor could not grant, even if he had a right in escheat, before he entered, nor a right of entry cannot be assigned ; and any patent issued by him before he had revested the estate by entry, was void, especially where the possession was filled.

11. Whether a patent can be vacated in a Court of Law ?

Answer. [No opinion appears to have been given on this question.]

Authorities. 3d point. 1 Raym. 420. 690. Carth. 63, 64. — 4th point. 3 Co. 28. Butler and Baker’s case. — 5th point. 1 Co. 1. 122. Co. Litt. 385. 4 Bac. Abr. 154. 156. F. R. B. 338. 1 Bl. Rep. 147. 179. — 6th point. Vid. Popham, 26. 4 Bac. Abr. 196, 197. 4 Co. 58. 9 Co. gg — 8th point. Vid. 2 Bl. Com. 245. 4 Co. 55. F. N. B. 340. Co. Litt. 268. 352. a. 45. 2 Lill. 197. 1 Bac. Abr. 302, 303. 1 Lill. 123. 3 Co. 24.

Judgments were entered in each case for the defendants.

Hanson, J.

who sat at the argument and decision of these cases, did, in May, 1801, whilst Chancellor, file in the office of the General Court the following protest against the preceding opinion, delivered by the Chief Judge, and which protest he directed to be entered on record.

John Kelly’s Lessee "1 In the General Court for v. > the Western Shore, October Greenfield and Sothoron.J term, 1785.

In this case, it appears that judgment was entered for the plaintiff, subject to the opinion of the Court, on a statement of facts, or point saved.

The cause was, by the counsel on each side, fully and ably debated, and an opinion was delivered by Harrison, Chief Judge, in favour of the defendants.

The subscriber has been informed, that every article in that opinion has been considered by the bar, and the present judges of the General Court, as the sentiment not only of the Chief Judge, but of each of his associates, Hanson and Goldsboroagh. The subscriber therefore thinks proper to state what passed between the Judges, with respect to their judgment in that cause.

As the cause came before the Court on a statement of facts, every point made by the counsel, was debated, before the Court gave any opinion whatever.

The argument being ended, a conference (as was usual) took place between the Chief J udge and the subscriber. The latter, with little hesitation, declared, that in his opinion the cause might be decided on a single point, viz. that as the title to the land in question was in the proprietary, at the time of his grant to the persons under whom the defendants claim j and as that grant remains unrepealed by the Chancery Court, it must prevail against the younger grant obtained by the piaintiif, and issued on a younger survey and warrant. The subscriber observed, that under this impression he was for giving judgment in the defendants’ favour; that there was no necessity for deciding on the points raised by the counsel; that it had always been, and perhaps would ever be, Ms practice, after giving his opinion on a point which put an end to the cause, to give no further opinion ; and that such practice had uniformly prevailed in the Court, since the said Chief Justice had presided. He then assigned his reasons, which to him appeared conclusive for continuing the practice.

The Chief Judge, not acquiescing in the remarks of his colleague, applied, in his presence, to Judge Golds-borough. A debate ensued, and the result was, that Judge Goldsborough avowed a perfect coincidence in sentiment with Judge Hanson. But inasmuch as all three were in favour of the defendants, it was agreed that the Chief Judge should deliver the opinion of the Court.

The subscriber declares, that, to the best of his recollection and belief, neither Judge Goldsborough, nor himself, at that time, intimated to the Chief Judge any opinion in this cause, except that which has already been stated, viz. that a grant by the proprietary, in whom the title was at the time of the grant, shall, so long as it remains unvacated or unrepealed by the Chancery Court, prevail against any subsequent grant, made to another person, whose survey and location are younger than the certificate, on which the said first grant had issued; that is to say, if a patent has issued from the land-office, un¿er Sllch circumstances as, agreeably to the rules and practice of the office, required a warrant and proceedings, different from those which have been used on the occasion, no other grant, obtained on any warrant, after-wards issued, or on a survey, or location, afterwards made, shall prevail against the said patent; and that no advantage shall be taken on a trial at law, by the younger patentee of the' want of formality, or regularity, in obtaining the firát grant, or of imposition on the proprietary or other person, but that the said first grant shall stand, as any other grant, so long as it remains unvacated or unrepealed, by the Chancery Court. This doc* trine appeared to the two associate Judges to be per* fectly clear, and. the Chief Judge did not controvert it.

- The Chief Judge, notwithstanding what had passed, about three weeks afterwards, delivered a long and learned opinion in writing, in which, it appears, eleven points, mad’e by the counsel, or deduced from their arguments, are- decided. The subscriber remembers Well, that, as the opinioñ, from the language, appeared to be the unanimous opinion of the Court, on many, if not on all the points therein discussed, he contemplated at the moment, a disavowal of his own concurrence, but for certain reasons, which perhaps ought not to have governed, he declined it.

He now perceives cleai-ly, that he and Judge Golds-borough did wrong in not apprizing the bar, that the writing, aforesaid contained the opinions of the Chief Judge only; and that they neither concurred with, nor dissented from', the said opinions. All that he can now do with propriety, in order to place matters on then-proper footing, (and he earnestly hopes it is not too late,) is, in addition- to what he has already said, to protest ■that neither he, nor (to the best of his recollection and belief) Judge Goldsborough, at any time, has concurred in the decisions of Judge Harrison in this cause, further than is already stated ; and that if the subscriber had conceived himself under an obligation of delivering his opinion on each of the eleven points stated in the aforesaid writing, he should not, on every point, have concurred with the Chief Judge. On some of the points, indeed, he did not even give himself the trouble of forming an opinion.

He did not even consider as involved in his point, the question how far the royal rights, or prerogative, of the lord proprietary of Maryland extended : for he was under the impression, that a person in England, seised of land under a grant of the crown, passed many years ago, and still remaining unvacated or unrepealed, could not have a recovery against him, by a person claiming under a new grant.

The object of this narrative and declaration is merely to have it understood, as it ought unquestionably to have been from the beginning, that, although the decisions contained in the writing aforesaid, may be strictly conformable to law, they are entitled to no further authority than belongs to the name of Judge Harrison only. It is not the meaning of the subscriber to controvert any one of those decisions : But he has been applied to, to settle, so far as his declaration can settle, a dispute at the bar concerning the writing aforesaid; and he conceives it his duty to do that, which is in the power of no other man, to take care, that decisions in which he did not concur, shall not be quoted as his deliberate opinions, delivered by the mouth of the Chief Judge. He is well apprized of the distinguished reputation, which that excellent man had deservedly acquired •, and it is probable, that the subscriber’s opinion might be considered as affording but a slender support to that of Judge Harrison. But be this as it may, it can never be insisted that the opinion of Judge Harrison alone, on points of importanee, should be suffered to pass as the opinion of Harrison, Hanson and Goldsborough.

A. C. HANSON, Chancellor.

N. B. It may not be amiss to explain more fully the meaning of Judge Hanson’s point. There is no doubt, that if a private man conveys land, in which he has a clear, pomplete title, to A., who enters, and is seised $ and the said private man afterwards conveys the same land to B., the said B. is not thereby enabled tó recover the land from A. There is no difference between two deeds for the same land from a private person, and two patents from the king. In either case, it is the Court of Chancery alone which can enable any person to recover from the first grantee or patentee. In this view of things it is clear, that there was no necessity for deciding the several points raised by the counsel ; nor can'Judge Hanson’s point be considered as a virtual or implied decision of any point which he has not stated.

A. C. HANSON,- Chancellor.

With some hesitation Judge Hanson adds his decided opinion, that the proprietary could never be considered in a worse state than a private man. If the act of limitations was to operate against him, as against a private man, he must surely have been entitled to the benefit of the exceptions, made by the act in favour of a private man. It would be monstrous to say, first, that with respect to limitation of time, the proprietary was not exempt more than a private man from the operation of the act, and to say next, that notwithstanding the proprietary’s real absence from his province, he must be supposed always present in his province. Would it not be more reasonable to Say, that, as he was supposed always occupied by the affairs of his province, and therefore not having it in his power to attend his private affairs, like a common man, the act of limitations ought not to-operate against him at alii Judge Hanson had always understood it to be settled, that, until some grant had been issued from the proprietary, mere adverse possession, of whatever duration, could not bar his entry. If that point was settled on proper grounds, why, in the name of common sense and justice, should an adverse possession of twenty years have barred the proprietary from his entry on lands theretofore patented, which had escheated to him ?

This is one of the great points, on which, if Judge Hanson had conceived himself obliged to decide in the cause of Kelly and Greenfield, he must have dissented. from the Chief Judge’s opinion. '

A. C. HANSON.

May 28, 1801.  