
    COURT OF APPEALS, JUNE TERM, 1821.
    Boring’s Lessee vs. Lemmon.
    auitntiyteobiaiS áftéíwa,”<£1' issael the legal estate bel comes vested in the second paten-
    a deed from a shenffto a vendee, ata sale under a «jfrj “ ^¿adm¿ the vení j^y operation
    Appeal from Baltimore county court. Ejectment for a tract of land called Boring’s Habitation Rock. The general issue was pleaded, and á verdict taken for thé plain- , ,. . ,, r n xilF, subject to the opinion of the court, on the tollo wing statemeñt of facts, viz. “Boring's Habitation Rock was, 7 ° , _ _ granted to Ezekrel Boring, the lessor of the plaintiff* the 24th of April 1795. The grant was founded upon a certificate of survey that hád been returned into the land office in due and regular time, and dated the 8th day of October 1794. One Christian Singery had, under a warrant, caus«d a survey to be made of a quantity of land in Baltimore bounty, of which a certificate of survey was made out by the surveyor, on or about the 30th of April 1770, unde): the name of Singery’s Trouting Stream, which certificate was delivered to Singery to be returned to the land office. As the survey whs made by the surveyor, and according to Ids certificate, the quantity of land included in it [was 170-| acres, and for this quantity only he made a compensation to the Lord Proprietor; this certificate did not include any part of the lands afterwards included in the tract called Boring’s Habitation Rock; after the certificate was so delivered by the surveyor to Singery, he (Singery) fraudulently caused the courses and distances, or description of ihe land, in such certificate, so to be altered; (by inserting a call for the beginning of Petticoat’s Loose,) as to make it embrace the whole of the lands afterwards included in Boring’s Habitation Rock, and lie caused the certificate, so altered, to be returned to the land office; afterwards, oil or about the 20th of April 1775; he obtained a patent from tbe then Lord Proprietor, agreeably to the certificate, as altered, the Lord Proprietor and his officers being ignorant of the alteration; Boring, after having obtained his patent, brought an ejectment against Singery, (who was in possession,) in the late general court, to October term 3 795, and at October term 1799 recovered a verdict and judgment for the whole tract called Boring’s Habitation Rock; from this judgment Singery appealed to the court of appeals, where it was reversed at November term 1802, and the case sent back by writ of procedendo to the general spurt (See 4 Hwr. MHen. 398.) Upon the second trial in the general court at October term 1805, Singery ob* tamed a verdict and judgment againsc Boring. While1 ejectment was depending in the general court, under the writ of procedendo, and about the 19th day of November 1799, Boring filed a bill in the court of chancery, [it* the name of The Attorney General, at his- relation, against Singery f alleging that Singery had fraudulently altered his- certificate of Singery’s Troutirig Streams, and hady upon that fraudulent alteration,- obtained a patent which embraced the land included in Boring’s Habitation Bock which the original and lawful certificate would not have included,- and prayed for relief. While this suit in chancery was depending, the verdict and judgment in favour of Singery, as before mentioned, were had, and on that judgment Singery issued a fieri facias the 22d November 1805, for the costs. The fieri facias was levied by the sheriff of Baltimore county on the land included in Boring’s Habitation Sock, under the name of Habitation, Bock; and the sheriff regularly sold said land at public sale on the 2d of January 1806, to Thomas Lemmon, the d¿fendant in this cause, for §174 05, which sum Lemmonpaid to the sheriff, and he paid it over to Singery. The sheriff made return of the fieri facias, with a schedule-thereto annexed, stating that the lands, &c. of Boring, had been seized under1 the fieri facias, viz. “One tract of land called Habitation Sock, containing 360 acres more or less, situated in north hundred, Baltimore county, adjoining the lands of,” &c. and valued at fifty cents per acre. He also certified, that said land “was sold at public sale, oh the promises, on the 2d of January 1806, to Thomas Lemmon? at fifty-one cents per acre.” Lemmon afterwards, in pursuance of said sale, entered into possession of the lands included in Boring’s Habitation Rock, and became seized and possessed thereof so far forth as the law authorized under said proceedings, and claims the1 same as his property. At the time of issuing and levying the fieri facias on said land, and selling-the same, Boring resided in the State of Pennsylvania, and knew nothing of said proceedings. The suit in the court of chancery continued depending before that court until the 7th of August 1806, when the chancellor decreed, that the defendant Singery should convey to Boring, and his heirs, all that part of -the land included in the-patent of Singery’s Trouting Streams, which was also comprehended in the lines of Boring’s Habitation Rock.
    From this decree Singery appealed to the court of appeals, where the decree was affirmed at December term, 1809. In pursuance of that decree and affirmance, Singery executed, in due and legal form, a deed for said land to Boring, on the 15th day of July 1812. The land conveyed by that deed, is so much of the land contained in the patent for Singery’s Trouting Streams, as -was included by the fraudulent alteration of the certificate by Singery, and as was also included in the patent for Boring's Habitation Rock, and is the land for which this ej ectment is brought. On this statement the court below gave jndgrtient for the defendant, and the plaintiff appealed to this court.
    The case was argued before Chase, Ch. J. Buchanan, Baulk, and Martin, S.
      
    
    
      Winder, and B. C. Howard, for the appellant,
    relied on The State vs. Reed, 4 Harr. <$- Al IIeh. 10. Spalding vs. Reed-er, 1 Harr. §• M-Hen. 189, B. Dulany’s opinion. Kelly vs. Greenfield, 2 Harr. M‘Hen. 141. Carroll’s lessee vs. Llewellin, 1 Harr. JIB Hen. 162. Bates vs. Graves, 2 Ves.jr. 294; and Boring's lessee vs. Singery, 4 Harr. <§• M‘Hen. 398.
    
      R. Johnson, for the appellee,
    cited Kilty's Land Hold. Ass. 421, 452,453. 3 Blk. Com. 431, 438.2 Blk. Com. 308. Bright vs. Eynon, 1 Burr. 396. 1 Corn, on Cont. 36, 37. Fitzherhert vs. Mather, 1 T. R. 12. Hodgson vs. Richardson, 1 W. Blk. Rep. 465. Colt et al. vs. Woollaston Arnold, 2 P. TVms. 156. Stent vs. Bailis, Ibid 220. Broderick vs, Broderick, 1 P. Wms. 239. Fermor’s case, 3 Coke, 77. b. Alton Wood’s case, 1 Coke, 46. a. and Boring’s lessee vs. Singery, 4 Harr, fy M'-Hen. 403.
    
      
      
        )Johnson, and Dorsey, J. having been cotinsel for the parties did not sit.
    
   Chase, Ch. J.

delivered the opinion of the court. It' being admitted in this case that all the lands contained within.the limits of Boring’s Habitation Rock, were by fraud included in Singery’s Trouting Streams, by Singery’s fraudulently inserting in the certificate of Singery’s Trouting Streams, a call for the beginning of Petticoats Loose, while Singery had the certificate in his possession, and before the same was returned to the land office; the court are of opinion, that the land thus included in Singery’s Trouting Streams, did not pass to Singery by his patent, but that the same being comprehended within the limits of Boring's Habitation Roelc, did pass to Ezekiel Boring, and that the legal estate vested in him absolutely under the grant for Boring’s Habitation Rock.

The court are also of opinion, that the legal estate in Boring’s Habitation Reck being vested in Ezekiel Boring at the time the fieri facias was levied on said land, the same was transferred by the sale of the sheriff to the vendee^ Thomas Lemmon, by operation of law.

The court are also of opinion, that a deed from the sheriff to the vendee, although frequently taken out of abundant caution as an additional evidence of the vendee’s title, is not necessary to vest the legal estate in him.

JUDGMENT AEEIRMED.  