
    Thomas Muse against Samuel Laughridge.
    
    
      Columbia,
    
    1802.
    Where there ibrtheSsame one’shaiMü-amiS although the younger grantee might have lapsed the right of the elder one ¿veat^1 "'anil heTad'losthí right to pre-the passing of grant, yet it terThe'great ttTthe elder §1't1iÍs eo cannot take into consideration the me-grantees; that the "coma fof «ayeats, be-passed.
    TRESPASS to try titles to land in Fairfield district. Verdict for defendant, Motion for new trial,
    This ease was tried before Mr. Justice Trezevant, who rePorted that the plaintiff, Mr. Muse, had surveyed the land jn question on the 25th September, 1787, and took out his grant the 4th of February, 1793, upwards of five years at-. . . ter the time ol his survey.
    That the defendant, finding that the plaintiff had omitted to ta^e out grant for a considerable length of time, had jt surveyed for himself on the 22d of January, 1793, and obtained a grant for it on the 1st of July, 1793, and the question was, which grant should have the preference.
    The presiding judge, in his charge to the jury, told them, drat die plaintiff was bound to take out his grant within six months after the time o'f the survey, which was in Sep-tember, 1787, and after that time he lost his exclusive right . . , to it, and any other person was at liberty to run it out. That defendant having done so, he then gained an exclusive right’ t0 i*- itir six months after his survey, which was on the 22d Df January, 1793, and his grant was taken out on the 1st of July, 1793, within the six months after the date of his survey. It was true, he said, the plaintiff had got a grant fas 
      the land after the defendant’s survey, on the 4th of Febru-ary1793, but he conceived that grant of the plaintiff’s void, under the 4th clause of the act amending the land act, (Public Laws, 400.) which enacts, “ that a person making “ a survey of land, shall be allowed six months to obtain a “ grant for it, and in case of default within that time, any “ other person may apply for and obtain a grant for it, on 11 payment of the fees; and any grant for the land within “ six months from the time of its being surveyed, (except “ by the person for whom it was surveyed,) shall be ipso “ facto void.” Under this clause he was of opinion that the plaintiff’s grant was null and void ; and the jury, according to his direction, found a verdict for the defendant.
    Mr. Smith, in support of the motion for a new trial,
    contended, that the exception in the 4th clause of the act amending the land act, above quoted, expressly saved the right of the plaintiff, and that it should be construed to extend to persons in his predicament, still giving them the preference, if they thought proper tp take out the grant, but declaring all other grants taken out within the six months, but to the one for whom it was originally surveyed, null and void. That it was the duty of the defendant, when he surveyed the land in January, 1793, to have entered a caveat before the governor and council, (forbidding all persons from taking out a grant for that land until he was heard,) who would then have determined who had the preference, and decided on the claims of the parties ; but as he did not, there was nothing which stood in the way of the plaintiff from taking out his grant on the original survey, which had been regularly returned into the surveyor-general’s office. By this means he might possibly have lapsed the plaintiff’s right, and shewn that he had been negligent in not taking out his grant on his original survey within the time allowed by law, and that he had forfeited his claim; unless the plaintiff had on his part shewn sufficient reasons why he had delayed taking out his grant, which he might have done, and which would have been matter very proper for the consideration of the council board before the grant had passed. That, at all events, these were not points for the consideration of this court at this distant day, but were determinable by a competent tribunal, previous to the grant under the great seal of the state. That having regularly passed, the fee of the land legally vested in the plaintiff, and he was entitled to a recovery.
    Mr. Evans, for defendant,
    against the motion, insisted, that the omission to take out the plaintilf’s grant, on his original survey, within six months after the survey was made, amounted to a forfeiture of every right he had acquired by any previous steps he might have taken ; and that the exception mentioned in the clause of the act amending the land act, should be construed to extend to the last person surveying the land, and not to the person who had been guilty of laches and delay in omitting to take out his grant after he had surveyed the land.
   The Judges,

after hearing the arguments, were in favour of a new trial, on the ground that it was incumbent on the defendant, when he had surveyed the land in question as lapsed land, to have entered a caveat against its being granted to any other person, until he was heard by himself or counsel on the merits of his claim. This would have been a sufficient notice to the opposite party to have come forward and shewn his reasons for so long a delay in perfecting his right, and also information to the council board that the land had been previously surveyed for another, by which means the whole merits of both the claimants would have come fully and fairly before the governor and council, who at that time formed the only tribunal competent to try and determine who were or were not entitled to the fee of the soil in question. But instead of pursuing this mode, which was the usage and custom in this country, from time immemorial, in regard to those disputed claims, the defendant appears privately to have surveyed his land, and obtained a grant for it, without any sort of notice either to the present plaintiff or the council board.

As, however, nothing stood in the way of the plaintiff when he perfected his grant on his original survey, which had been regularly returned into the surveyor-general’s office, and his grant was the eldest, it unquestionably had a preference, and consequently the very reverse of the proposition is true, and the younger grant is null and void instead of the elder one.

Besides, they were all of opinion, that it would be introductory of much confusion and litigation, as had been well observed by the plaintiff’s counsel, if the court should set afloat the grants of the state for matters previous to the passing of the grant under the great seal; (unless in cases of palpable fraud or imposition ;) and the more especially, as there was a court of caveats then in the full exercise of all its functions, perfectly competent to hear and determine all such points.

Rule for new trial made absolute.

All the Judges present.  