
    *Alexander v. Greenup.
    April, 1810.
    i. Laud Patent- Grant of Escheated Land — Effect.— A patent from the commonwealth, containing- a recital “that the land was escheated from a certain J. M. dec’d;” and granting the same, “by-virtue of an entry made in the office of the late Lord Proprietor of the Northern Neck; and in consideration of the ancient composition of 11. 5s. sterling paid by the grantee into the treasury;’' is illegal and void, and not to be received as evidence of title on the general issue in ejectment,
    a. Escheated Lands What Necessary to Grant Thereof. —The Commonwealth, under the existing laws, cannot grant escheated lands, without a previous inquest of office, and then not, (as waste and unappropriated lands,) upon entries and surveys; but upon sales by the escheaters.
    3. Land Patent- Defects Apparent on Pace — Effect.—A patent may he declared void, for defects apparent on its face; without the necessity of resorting to a scire facias to repeal it.
    4. Same — Repeal Thereof. — Quaere, whether, and from what Court, a scire facias to repeal a patent can issue in Virginia?
    
      The points in controversy in this case {which was originally an action of eject-, ment, by Greenup v. Alexander, in the District Court of Dumfries, for 205 acres of land, lying in Eoudoun County) are set forth in a bill of exceptions filed at the trial; the most material parts of which are as follows: “Memorandum, on the trial of this cause the plaintiff’s counsel produced and offered in evidence a writing purporting to be a patent to the plaintiff’s lessor for the land in the declaration of ejectment mentioned, in these words: “Beverley Randolph, Esq. Governor of the Commonwealth of Virginia, to all, &c.; Know ye, that by virtue of an entry made in the office of the late Eord Proprietor of the Northern Neck, bearing date the 6th day of April, 1778, and in consideration of the ancient composition of one pound five shillings sterling paid by Christopher Greenup into the Treasury of this Commonwealth, there is granted by the said Commonwealth unto the said Christopher Greenup a certain tract or parcel of land, containing &c., by survey bearing date the 17th day of March, 1788, lying and being, &c.; which said tract or parcel of land was escheated from a certain Jonathan Monk-house, deceased ; bounded, &c.; to have and to hold, &c.;” dated the 8th day of December, 1788; and endorsed, ‘‘Christopher Greenup is entitled to the within mentioned tract of land: John Harvie R.e. E. Off.” And the plaintiff produced no other title paper or writing in support of his title; whereupon the counsel for the defendant prayed the opinion of the Court whether the said writing or patent was not 135 void; and also whether it ought *to be permitted to go to the Jury as evidence of the plaintiff’s title.
    But one of the Judges was of opinion, and so instructed the Jury, that the recital contained in the plaintiff’s patent above mentioned and referred to, was conclusive evidence that a title had accrued to the Commonwealth, by virtue of an inquest of escheat taken upon the death of Jonathan Monkhouse in the patent named ; but permitted the defendant to give evidence of any title in himself, or those under whom he claims, paramount to the title of the said Jonathan Monkhouse; reserving the point of law, upon such evidence, (if offered and found by the Jury to be true,) for the further consideration of the Court: and the said Judge further instructed the Jury that the said patent was likewise conclusive evidence of a title derived to the plaintiff under the Commonwealth, unless the defendant should shew in evidence to the Jury a better title in himself, or those under whom he claims, derived from the Commonwealth since the said escheat in the plaintiff’s patent mentioned happened; reserving the point of law upon such evidence, (if offered and found by the Jury to be true,) likewise for the further consideration of the Court.
    The other Judge permitted the said patent to go in evidence to the Jury, on the question whether such patent was valid; with this instruction, that if they found that any part of the land contained within the bounds claimed by the plaintiff had been granted to pay other patentee by an elder patent, they should state it; ‘ ‘reserving the question of law arising from that fact, as to the validity and effect of such second grant to Monkhouse, as operating, or not, on such grant to another person.”
    And thereupon, the counsel for the defendant further prayed the opinion of the Court, whether the recital in the aforesaid patent, that the land therein mentioned was escheated from Jonathan Monkhouse, deceased, is conclusive evidence, against the defendant, that the land was duly and legally escheated, and sold according 136 to law, without producing *the proceedings, or a copy thereof, of the escheat. To this the junior Judge answered, that he had already fully delivered his opinion upon that point. The other Judge instructed the Jury that the recital of the escheat from Monkhouse ought not to be considered as conclusive evidence of such escheat, or the best evidence that such es-cheat had been legally executed.
    Verdict and judgment for the plaintiff; whereupon the defendant appealed.
    This cause was argued, at October term, 1808, by Botts and Randolph for the appellant, and Wickham for the appellee; and, again, by the same counsel, at March term, 1810.
    On the part of the appellant, it was contended, 1st. That the grant was void in itself; because, admitting the land to have escheated, an entry could not legally, have been made for it as waste and unappropriated land; nor could the consideration money have been the ancient composition of 11. 5s. sterling, but the sum for which the escheator sold it; neither did the act of 1785, c. 67,  authorize grants by the C.ommonwealth of lands which had es-cheated ; but only of waste and unappropriated lands.
    2d. It was competent to the Court to adjudge it void without a scire facias. Fraud (which is a circumstance dehors) will vitiate a patent; and evidence of fraud may be given on the plea of not guilty. A fortiori, then, the Court may take notice of a defect apparent on the face of the patent. It is questionable, indeed, whether a patent can be repealed by scire facias in this country. In England the scire facias to repeal patents is a prerogative writ; and issues from the same authority from which the grant issued; that is, the patent is from the Chancery, and the Chancery repeals it.  But, in Virginia, what Court could issue the writ? The executive alone could repeal its own act; first, because the acting power is the natural one to repeal 137 the *act; and secondly, because the judicial department would not be distinct, if it could mingle with the executive to repeal a grant from the governor. But repealing, and adjudging void, are different acts, with different effects.
    If a scire facias could issue, there would be no benefit, or policy in requiring it; being a tedious and expensive remedy, and coming after the evil has had its effect. For, if Greenup recovers, a scire facias and repeal of the grant will not restore possession to Alexander.
    Any other illegal act of the executive, or of the register, can be inquired into collaterally. Why not, therefore, this? Even an act of the Begislature may be so adjudged void, on the ground of its being unauthorized by the constitution. Why then should not a patent be avoided on the ground of its being contrary to law. One of the cases fit for scire facias is where a junior patent issues for the same thing. Yet every day’s practice is to declare the junior patent void, incidentally,  So, in England, if a patent authorize a nuisance, the nuisance is subject to prosecution, before the repeal, 
    
    3. If the patent was evidence that the title of Monkhouse was extinct, it was not conclusive evidence; for, at any rate, a judgment in favor of Monkhouse upon an inquisition of escheat would have falsified the recital. Neither was it legal evidence of that fact, which ought to have been shewn by the verdict of a Jury, upon such inquest.
    4. The diversitj’ of opinion between the Judges in the District Court did not take away the erroneous instruction by one of the Judges.
    On the other side, in answer to the first point, it was said that the whole argument was founded on a mistake. These were not lands escheated to the Commonwealth, but to Bord Fairfax. If he allowed them to be treated as waste and unappropriated lands, the Commonwealth had no right to claim any thing more. The act of 1785 138 conveyed a '^complete title to all persons claiming under Bord Fairfax. The entry was made in his office, and must be presumed lawful at the time. The patent having been granted, every circumstance to give it validity ought to be presumed. A man, claiming title under the Commonwealth, and producing a grant, is not bound to go farther back, and shew his entry and survey. It has been decided, again and again that Bord Fairfax had a right to lay down regulations for his office. He might have had one rule as to lands which had been cultivated and improved, and another as to lands which never had been cultivated.
    The land here might have been waste and unappropriated, for it does not follow, from its having escheated from Monkhouse, that he had ever occupied it; or that the legal title had ever been vested in him: he might have had a merely inchoate right, as an entay, or survey; and such right might have escheated.
    But, though not waste, the land might have been unappropriated; and that is sufficient; for, though the word waste is mentioned in the preamble to the 4th section of the act of 1785, c. 67, it is dropped in the enacting clause, which speaks of unappropriated lands only; and, according to 6 Bac. 381, words in a preamble are not necessarily to be extended to the enacting clause. The word “unappropriated,” applied to all lands not specifically appropriated to the use of Bord Fairfax; as is evident from the act of compromise, passed December 10th, 1796; and all the laws on this subject are to be taken together, so as to expound one of them by another, 
    
    What law prohibited Bord Fairfax from granting out lands that had before granted, if escheated? The Commonwealth had no right; because the title was acquired from him. If a grant then, from him would have been good, merely on payment of the ancient composition money, (if he chose to accept that as full satisfaction for the escheated land,) why should not a grant from the Commonwealth be equally good? By the entry with Bord Fairfax, the 139 appellee ^obtained an inchoate right, and was entitled to perfect it, on paying the ancient composition money ; and, if the land was not improved, there was no reason to demand more. Whether this entry was made in the proprietor’s office, or with the county surveyor, and returned to that office, makes no difference; under the act of 1782, c. 33, s. 3. 
    
    The appellee, in this case, has the right of the Commonwealth, and of Bord Fair-fax also. What preferable title can there be in the appellant?
    Argument in reply. The plaintiff in ejectment is bound to make out a complete title; which has not been done in this case. It is said that the patent, of itself, proved his title. But we say, he should have shewn more than the mere exercise of power. The right in 1778 was in Bord Fairfax. It should have been shewn in what manner it travelled from him to the Commonwealth. Where the act of 1785 authorizes a grant of Bord Fairfax’s land, it must be on a survey made and “returned into the late proprietor’s office. ” The case of Pickett v. Dowdall,  shews that the Bord Proprietor made a variety of regulations in his office, differing from those in the land-office of Virginia. Among others, there was one, that, if no survey was made in six months after an entry, the benefit of the entry was forfeited. Yet nothing is said in this patent about a survey ; an entry only is mentioned.
    Why did the law require the grants to be on surveys returned to the proxirietor’s office? Certainly, that it might be shewn whether the order had been renewed by the proprietor. What could not have been set up as a demand against Bord Fairfax cannot be a just title under the Commonwealth. In this case, the entry had run out when the Commonwealth came to operate upon this land; for the survey was seven years after the proprietor’s death.
    A patent is never good without reciting the consideration for which it issues. 140 The act of Assembly expressly ^'requires this; that all who look at a patent may judge of its original validity. But, here, the recital was altogether defective. It did not state that any inquest of office had determined the land to have es-cheated ; nor that it was sold as escheated land; so as to give a title to a purchaser.
    Under the regal government, would any man have said the King could grant es-cheated land without an inquest of office? There was an escheator who held his inquests in every County. ■ The governor gave a preference to the person applying for an escheat warrant: but every patent recited the inquisition and proceedings thereupon. This was a great security to the rights of the citizens; that their freeholds were not to be taken away but by verdict.
    Was there any difference between the Northern Neck and the other parts of Virginia? This charter, which infringed the rights of the people, and sprang from nothing but an intrigue, ought not (above all others) to be favoured. Would the people of the Northern Neck have permitted the proprietor to seize their lands without an inquest? Would they yield that their rights should be different from those of the rest of the people?
    In this case, the defendant, if he could have shewn himself the heir of Monkhouse, might have defeated the plaintiff. An heir may bring ejectment against a person holding by an escheat patent. Yet the Court instructed the Jury that the title under the patent was conclusive, unless the defendant could shew a title paramount to that of Monkhouse l
    Curia adv. vult.
    Saturday, June 2.
    
      
      Lsnd Patent — Grant of Escheated Land — Effect.—A patent granting escheated lands is void at law, if the fact 'appear upon the face of the patent. In such case, the subject of the grant is not waste and unappropriated land. It has ceased to be so, by haying been withdrawn by the iust proprietor, by his patent, from the class of the unappropriated domains of the commonwealth. French v. The Successors of the Loyal Co., 5 Leigh 673.
      See generally, monographic note on “Escheat’r appended to Sands v. Lynham, Escheator, 27 Gratt. 291.
    
    
      
      Same — Collateral Attack. — For, while the commonwealth’s grant cannot generally be collaterally attacked, yet, if it be void on its face, it may be. Jarrett v. Stephens, 36 W. Va. 448, 15 S. E. Rep. 178, citing 3 Lomax Dig. 388; Patterson v. Winn, 11 Wheat. 380; Alexander v. Greenup, 1 Munf. 134; Bledsoe v. Wells, 4 Bibb 329.
      To the point that a patent carrying on its face the evidence of its own nullity cannot avail the party exhibiting it., the principal case is cited in Norvell v. Camm, 6 Munf. 238.
      But, in the case of an actual and perfect patent, there is no remedy bnt to set it aside in a court of equity, or in some other proceeding having that for its direct end and obiect. 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, one cannot go behind a patent in a trial at law; the patent alone must prevail. Norvell v. Camm, 6 Munf. 238, citing Witherinton v. McDonald, 1 Hen. & M. 306.
    
    
      
       2 Rev. Code, App. No. V. p. 69.
    
    
      
       6 Bac. 111; Gwill’s edit. & note there.
    
    
      
       6 Bac. 111.
    
    
      
       Haywood’s Rep. (N. C.) 128, 375, 497.
    
    
      
       6 Bac. 111.
    
    
      
       2 Rev. Code, App. No. V. p. (71) (72.)
    
    
      
       Pickett v. Dowdall, 2 Wash. 106; Johnson v. Buffington, Ibid. 116; Curry v. Burns, Ibid. 121.
    
    
      
       Ch. Rev. p. 92, Acts of 1779; May session, c. 12, s. 6.
    
    
      
       Ch. Rev. p. 180.
    
    
      
       Act of 1785, c. 67, s. 4.
      
    
    
      
       2 Wash. 106.
    
   The Judges delivered their opinions.

JUDGE ROANE,

after stating the case. With respect to the general question in this case, I take it to be clear that although a patent, perfect on its face, is only to be vacated for matter dehors the patent, by a proper and regular proceeding, 141 *yet that a patent may carry on its face intrinsic evidence of its own nullity, and be considered void, when exhibited in the progress of a trial. I will put the case of a patent obtained “for land now holden in fee by A.• or “for escheated land,’’ (at this day under the Commonwealth,) in the ordinary way, as if it were waste and unappropriated land: in either case, it does not want extraneous evidence to shew, that the Commonwealth has been deceived in its grant, or rather has granted that which was not grantable at all in the first case, or, in the second, in that mode, or for that consideration, which the law of the country justifies. The recognition of a principle going to defeat patents perfect as upon the face thereof, on the ground of extraneous and latent defects, by a regular proceeding, does not conflict with another principle, that a patent which is defective per se, is to be held void, in the first instance.

In the case before us, admitting for the present, that the act of 1785 applies, for the purpose of' perfecting entries for es-cheated land made in the time of Eord Fairfax; the question is, whether this patent is not void, as on its face; 1st. On the ground that it does not state that the es-cheat preceded the entry; and, 2dly. That it does not state that the escheat was regularly made by an inquisition. This last question is important; and I shall not now decide it, as there are other and plainer grounds on which I hold the judgment of the District Court to be evidently erroneous. On the one hand, it may be argued that the officers of the Commonwealth should be intended to have granted the patent on the proper documents only; and, on the other, it is a principle of our law, certainly not to be relaxed in favour' of a Lord Proprietor, and greatly for the liberty of the subject, that the King cannot enter upon the lands of a subject upon mere sur.mises, nor without the solemn inquisition of a Jury.

As to the 1st objection, it is only stated that the land escheated from Jonathan Monkhouse, deceased. There is nothing in the patent to shew that this escheat 142 happened *prior to the date of the entry; and the patent would be satisfied, if in fact that escheat had accrued after the entry, and before the date of the patent. I admit that my own opinion is, that, on a liberal scale of construction, the escheat must be taken to have been prior to the entry: but it is a rule, on the other hand, that patents are always to be taken in a sense most favorable for the King, and against the party, Again, it is worthy of observation that the Junior Judge in the District Court considered that the escheat had accrued to the Commonwealth, and therefore accrued after the entry; and, if so, the entry, on which the patent' is grounded, was made at the time without authority; at a time when the land was actually holden by Monkhouse. This is at least sufficient to shew that the patent is uncertain in this particular; so uncertain as that one of the Judges of the Court below expounded it, as to the time of the accruing of the escheat, in a sense which is equally in conflict with the ground taken by the appellee’s counsel in this argument, and derogatory to the right of the Commonwealth .to have granted the land by this patent; nothing being more clear than that lands accruing to the Commonwealth by escheat are to be granted away under a regular inquisition, and sale by the escheator, only, and in consideration, not of the ancient composition money, as in this case, but of the actual price for which the same has been sold by the escheator. In the case of Pickett v. Dowdall, it was said by Judge Pendleton, that, in subsequent grants, the prior forfeiture of a former grant should be recited: and the reason of this was given by Mr. Marshall, one of the counsel: it is, that, if the prior forfeiture were not recited, the former grant might prevail over the latter. But it is doing nothing to make that recital, unless it appears that the forfeiture not onlv preceded the second grant, but also preceded the foundation on which the second grant was erected. In the case before us, if the es-cheat be taken to have accrued at a time posterior to the entry on which the grant is founded, although the grant in ques-143 tion * (having recited a forfeiture by escheat prior to its date) would prevail (ceteris paribus) against the original grant to Monkhouse, yet it does not follow that it would prevail against a grant to a third person, the inception as well as consummation of which, originated after the escheat had accrued; it does not follow that, as against other persons than those claiming under Monkhouse, it conveys any title; and, therefore, in an ejectment, in which the party recovering must shew a complete title, the grant was not on this ground proper to be given in evidence. Greenup ought not to have recovered against Alexander, when there might have been another person behind entitled to recover against him: the possession of Alexander ought only to have been devested in ■favour of the true owner.

I have thus considered this case as if the act of 1785 related to entries for escheated lands: if it did, and the escheat could, on this patent, be taken to have been anterior to the entry, the title of the appellee would have been complete: but my opinion is, that that act relates only to unappropriated and ungranted lands.

This is evident both from the preamble and body of the act, taken in a general view. The preamble states the mischief contemplated to be remedied, to be, that no mode existed for granting out the unappropriated lands of the Northern Neck. It is argued, however, that the general term “entries,” in the 4th section, enlarges its operation so as to go beyond unappropriated lands, and to embrace entries for escheated lands. While it is admitted that the words of an enacting clause may go beyond the case stated in the preamble, it is the more natural construction, ceteris paribus, to consider them as merely coextensive therewith; as commensurate with, and calculated to remedy, the evil which gives rise to the act. But m the case before us, we do not stand merely on this general ground: admitting that the sense stated in the preamble was thus enlarged by the term “entries” as aforesaid standing singly, that term is again restrained by the following circumstances: 144 *lst. In using the said term “entries,” the same clause speaks of “surveys” founded thereon: therefore entries for unappropriated lands must be meant, since surveys are not necessary on entries for escheated lands or lots, 2dly. The clause says that the grants on the entries and surveys made in the life of the late proprietor shall be made out in the same manner as is by law directed in cases of other unappropriated lands. This term “other” undoubtedly imports that the lands to which the entries in question relate, are also unappropriated lands. 3dly. The 5th section, which is confined expressly to unappropriated lands as to future grants, shews that the former section which related to past entries, is to be taken under the same restriction. 4thly. When it is considered that the same session put into force, in the Northern Neck, the act concerning escheators, by which the escheated lands, in that territory also, were to be sold for full value, the provision in the 6th section of the act in question shews that the land required by the entries mentioned in the act must mean unappropriated land; and, Sthly. The same inference is drawn from the provision in the 5th section respecting caveats, which, as well as surveys, are, by the general land laws of this Commonwealth, confined to unappropriated lands, and do not apply to escheated lands.

Upon the whole, while I doubt extremely (to say the least) whether this patent is not void, for the reasons assigned, supposing the act of 1785 to extend to entries of this character, (for escheated lands,) I am clearly of opinion, that the act applies only to unappropriated lands for which entries had been made; and being thus confined, I am of opinion that the instruction of the Court below was erroneous; that the patent ought not to have been received as evidence of the appellee’s title; and that therefore the judgment be reversed.

JUDGE FLEMING.

The principal questions in this case are, whether the recital contained in the appellee’s patent, 145 Mated the 8th day of December, 1788, was conclusive evidence, that a title nad accrued to the Commonwealth by virtue of an inquest of escheat taken upon the death of Jonathan Monkhouse, in the patent named; and whether the said patent was likewise conclusive evidence of a title derived to the plaintiff, under the Commonwealth, unless the defendant should shew, in evidence to the Jury, a better title in himself, (or those under whom he claims,) derived from the Commonwealth, since the said escheat in the plaintiff’s patent mentioned happened? Such being the instruction given to the Jury at the trial in the District Court, as stated in the bill of exceptions.

On examining the records of the late proprietor’s office of the Northern Neck, now in the register’s office, I find, that, formerly, there was great solemnity used in obtaining patents for escheated lands; an instance of which I shall notice, in the case of land that escheated to the proprietor, on the death of Frances White, alias Lampton.

On the 3d June, 1729, Dr. Thomas Turner gave information by letter to Thomas Lee, the proprietor’s agent, that one Frances White, alias Lampton, had been seised of about 50 acres of land in the County of Richmond, now King George, and died without heirs, or having disposed of ihe same; and prayed to have the preference of a grant thereof.

On the 7th of April, 1720, Thomas Lee issued his warrant to Edward Barrow, surveyor of Richmond County, empowering him to survey the said land, and return the survey and plat to the office, in the customary time; in which warrant the agent recited that Turner had obtained a certificate, and published and returned the same, according to the rules of the office. At the foot of the warrant there is a direction to Turner that “when you return your survey you must bring Mrs. White’s title.” signed Thomas Lee.

Next in order is a survey, and plat of the land, made by J. Warner, surveyor of King George County, the 27th 146 *of September, 1727, accompanied with White’s title papers, to wit, a deed for the land from Wm. Marshall to Thomas White, late husband of the intestate Frances, dated the 24th of October, 1713, and the will of Thomas White, dated the 20th of April, 1715, in which he devised the land to his wife Frances White; who afterwards married one Hampton. Then follows the warrant of inquest from Robert Carter, agent of the proprietors, and escheator of all the lands in the Northern Neck, directed to George Eskridge, deputy escheator, dated the 9th of May, 1729, directing to take an inquest of office on the said land; which was duly executed by the said deputy escheator, on the 4th of February, 1732, and returned to the proprietor’s office. After which, a grant for the land issued to Thomas Turner, in which the foregoing proceedings are recited, as follows: “Whereas it hath been set forth to the proprietor’s office by Thomas Turner, of the County of King George, that Frances White, alias Hampton, late of Richmond, now King George County, died seised of a parcel of land, situate, &c. without heirs, or making legal disposition thereof, which land is part of a tract granted unto Wm. Marshall, by deed out of the proprietor’s office, dated, &c. for 268 acres, and was by the said Marshall sold unto Thomas White, by deed, dated, &c. and by the said White, by his last will, bequeathed unto his wife, the said Frances White, (afterwards married to one Hampton,) to her proper use and behoof for ever; whereupon the said land, for want of heirs of the said Frances, es-cheated' to the proprietors; the said Thomas Turner moving to have the preference to a grant thereof, and an inquisition concerning the same being since taken, and returned to our said office, bearing date, &c. under the hand and seal of George Eskridge, gent, deputy escheator of our said proprietary; and, upon the oaths, and under the hands and seals of twelve lawful freeholders of the said County of King George, viz. Thomas Berry, &c. who brought in this verdict, viz. We do find that Frances White, alias Hampton, aforesaid, died seised of thirty-five acres of land; 147 *that she left no heir, nor made any disposition ' thereof in her life-time that we know of, and that she was no alien at the time of her death, and therefore we find the said thirty-five acres of land es-cheat to the honourable proprietors of this Northern Neck, as by the said inquisition doth, and may more fully appear. Know ye, therefore, that for divers good causes, &c. we have given, granted, &c. unto the said Thomas Turner, &c. the said 35 acres of land, &c. lying, &c. and bounded as followeth; to wit: Beginning, &c. to the beginning. Together, &c. To have and to hold, &c. yielding and paying, &c. Provided, &c. Given at our office in Bancaster County, &c. Witness our agent and attorney fully authorized thereto, dated, &c.”

By this it appears that in the time of the proprietorship of the late Hord Fairfax, great ceremonies were deemed necessary, and were used in obtaining patents for es-cheated lands in the Northern Neck, but I have not been able to procure the form of an escheat patent, without that territory. It appears, however, that, in the times of the proprietorship of Hady Culpeper and Hady Fairfax, less ceremony was used in obtaining such patents, than in later times p as they had sometimes been used without a prior inquest of office; but still there was a particular recital of previous ceremonies, having been observed, according to the rules of the office; as appears by the preamble of a patent issued to Edward Turberville; which is as follows: “Marguritte Hady Culpeper, Catharine Hady Fairfax, Proprietors of the Northern Neck of Virginia, To all, &c. Whereas Edward Turbervile, of the County of Richmond, hath set forth to our office, that Randolph Davenport died seised of 115 acres of land in the County of Westmoreland, and left no heirs behind him, nor did dispose thereof by will; whereupon the same escheats to us the said proprietors; and thereupon a certificate according to the rules of the office issued to make the same public, which being returned with an endorsement and under the hand of Thomas Sorrell, Deputy Clerk of the said County, certifying that the same 148 was duly *published, and no person appearing to dispute the title to'the said escheat, and the said Edward Turbervile moving to be preferred to escheat the same, Know ye, therefore, &c. that for divers good causes, &c. we, &c. have granted, made over, &c. unto the said Edward Turbervile, &c. all our right, title, &c. in and to the said 115 acres of land, &c. situate, &c. and bounded, &c. To have and to hold, &c. yielding and paying, &c. Provided, &c. Witness, &c.

In the patent before us there is a bare recital, “that by virtue of an entry made in the office of the late Hord Proprietor of the Northern Neck, bearing date the 6th of April, 1778, and in consideration of the ancient composition of 11. 5s. sterling paid by Christopher Greenup into the treasury of this Commonwealth, there is granted to the said Christopher Greenup, 235 acres and 30 poles of land, by survey, bearing date the 17th day of March, 1788, lying, &c. which said tract or parcel of land was escheated from a certain Jonathan Monkhouse, deceased, and bounded as folioweth, to wit,” &c. and the plaintiff produced no other title paper, or writing, in support of his title.

And all the evidence, that the land in question had escheated from Jonathan Monkhouse, is an assertion in Greenup’s entry, that the said Jonathan Monkhouse dying intestate, and without any known heir, the said land, part of a tract of 625 acres granted to John Hough, escheated to the Hord Proprietor.

In the margin of the entry (as appears by a copy from the register’s office) there is a note: “Advertisement issued, and entry and advertisement fees paid.”

What were the rules in the proprietor’s office, at the time Greenup’s entry was made, we are not informed. But I find that on application at the office for a grant of escheated land, the first step was to advertise the same.

What further steps were necessary (according to the rules of the office) to entitle the petitioner to grant we have no information. But, in the case before us, it does not appear that there was any publication 149 whatever, or any *other step taken by Greenup, between the date of his entry in 1778, and the survey in 1788, about eight months before he obtained a patent, which appears to me too defective to support his title to the land in controversy ; and therefore that the instructions given to the jury, as stated in the bill of exceptions, were errbneous.

Judge Blackstone, in the 3d volume of his Commentaries, page 259, when speaking of the inquests of office, in England, observes, “that they were devised by law, as authentic means to give the king his right by solemn matter of record, without which he, in general, can neither take, nor part from any thing. For,” says he, “it is part of the liberties of England, and greatly for the safety of the subject, that the king may not enter upon, or seize any man’s possessions, upon bare surmises, without the intervention of a Jury.”

If that be a sound general principle in England, where many of the people’s rights must yield to prerogative, how much more forcibly does it apply in our republican government?

Upon the whole, I concur in the opinion that the judgment be reversed.

Judgment reversed, and new trial awarded, with a direction, that1 ‘upon such trial, the Court below do not permit the patent to be given in evidence.” 
      
      Judge Tucker, having- been one of the Judges in the District Court, did not sit in this cause here.— Note in Original Edition.
     
      
       2 Bl. Com. 347.
     
      
      
        2 Wash. 106.
     
      
       2 Rev. Code 69.
     