
    Mundell's Lessee vs. Clerklee.
    Appeal from Prince George's County Court. Ejectment for a tract of land called Mundell's Survey. The defendant, (now appellee,) topis, defence on \vairant, and plots were made,
    1. At the trial the plaintiff read, in eivdence the patent of Mundell's Surveys granted to the lessor of ilie plaintiff on the 21st of October ISOS, and a páienl for Beall’s Reserve, dated iii 1695, granted tó Mordecaí Mame, reciting, that the said Moore had set forth that lie had assigned unto him by Ninian Beall, of Culvert county, a certain tract of land for 455 acres in, Calvert county, surveyed for the said Beall the 25th of July 1684, and that the surveyor, in returning the said certificate of said land, had through mistake certified, that said land was laid out for said Beall by virtue of a warrant for 1000 acres, granted to him the 15th of February 1683, whereas in reality the warrant then granted to him, and by virtue whereof the said land was laid out, was for Í500 acres, by means of which mistake of the surveyor, the said Beall’s grant of said land had been delayed to be passed. That the said Moore had made it evidently appear, that the said 455 acres were surveyed for said Beall by virtue of a warrant for 15C0 acres granted him on the said 15th of February, there being so much of the said warrant no otherwise made use of, and no warrant for Í0Ó0 acres of that date being granted to the said Bead. Wherefore, it appearing palpably that it was merely the mistake of the surveyor in inserting in his certificate the words 1000 only', in lieu of 1500, and that the said Moore prayed that the mistake might be rectified, and a grant to him made pursuant to the said Beall’s assignment, &c. Therefore there was granted to the said Moore all that tract or parcel of land called Beall’s Reserve, lying in Calvert county, on the west side of Patuxent river, and in the freshes of the said river, and on the west side of a branch called Collington, and on the west side of Edward Isaac’s land, beginning, &c. containing 455 acres. ' lie further gave in evidence, that his locations on the plots in the cause were correct. The defendant then read in evidence the following extracts front the land office, of three several wat rauta having issued to Ninian Beall, to wit: “Slay’23, 1694. 'Warrant for 3000 acres, dated the 18th of July 1689, granted to jSfiman Beall of Calvert county', this day renewed for the said quantity. December 20, 1694. Warrant then granted to Ainlun Beall for 16rS acres of land, due to hita by renewment of that quantity out of a warrt. for 3000 acres, granted him by renewment the 23d of May 1694. September 21, 1695. Warrant then granted Ninian Beall uf Calvert county, for 400 acres of land, being due to him by renewal of part of a warrant for 1673 acres of land, granted him by renewment the 20th of December 1694.” And to prove that Beall’s Reserve, the land for r which the defendant took defence, was surveyed in virtue of the said warrants, and that'the same had been patented to said Ninian Beall, and that the jury might and ought to presume such patent to have issued, he also offered in evidence a deed from said Ninian Beall to James Ran-ton¡ dated the 15th of July 1706, for all that tract or parcel of land called Beall’s Reserve, lying in Prince George’s county, on the west side oí Patuxent river, in the woods, and on the east side of the main branch of Piscalaway, beginning at a bounded white oak, being the S TV bounded tree of a parcel of land surveyed fur Thomas Brooke, called The Forest, thence S S W 320 ps. to a bounded - white oak, thence ESE 200 ps. thence N N E 320 ps thence with a straight line to the first bounder, containing 400 acres more or less. And also read in evidence the following entries from the rent rolls, to wit: ‘‘400 acres, 16s rent. Beall’s Reserve sur, 17 June 1695, for Col. Nin. Beall beg. at a bd. oak of the land called-„ Foss. Col. Nin Beall. 400 — 16—James Rant-in, from Ninian Beall 15th July 1706. 400 — 16—Beall’s Reserve, surveyed 17th of June 1695, for Col. Ninian Beall, beg. at a bound oak — Poss. 400 — 0 16 0. Richard Lee, esq.” Also a deed from the said James Ranton to Richard Lee, dated the third of August 1737, for all that tract or parcel of land called Beall’s Reserve lying in Prince George’s county aforesaid, and adjoining to a parcel of land belonging to Thomas Brookes, called Potomak Forest, containing 400 acres of land more or less. Also extracts from Prince George’s county debt book, showing that part of Beall’s Reserve, 400 acres, was charged to Richard l-.ee, from the years 1753 to 1772, inclusive. And to prove that Richard Lee had, and those claiming under him have been in the possession ancl the use of said land, proved by competent witnesses, that for a number of years past, and as far back as the recollection of the witnesses extended, that" said land had been cultivated and used by said Lee, and his tenants, and that no person, to the knowledge of the witnesses, had possessed any part of said land, except said Richard Lee, and those claiming under him, claiming the same as Beall’s Reserve, but that a part of Beall’s Reserve, as located by defendant, and so much thereof as was comprehended within the lines of The Plains of Shrewsbury Resurveyed, as located on the plots, had been in the continued possession, use and occupation, of the owners of said last mentioned tract of land, from about the time of the same being taken up. It was further proved, that Richard Lee, under whom the defendant claimed, lived at this time about 30 or 40 miles from said land, and that Russell Lee, his heir, was a minor, and died under the age of 21 years? and that the witnesses, who were about the age of sixty years, lived on the adjoining land. And to prove that Richard Lee, and those claiming under him, had been charged with and paid assessments for said land, the defendant offered in evidence the assessment lists of Prince- George’s county for several years? by Which it appeared that in 1781 and 1782, part of Beall’s Pasture, 400 acres, was assessed to Richard Lee. In 1783 part of Beall’s Plains, by resurvey 400 acres, was assessed to him. In 1786 part of Beall's Pleasure, 400 acres, tenanted to Sami. Townsend, was assessed to him. In 1793, 1798 and 1804, Beall’s Reserve, 400 acres, was assessed to his heirs. And to prove that the land stated in the asse.ssment books, and the land included in the deed from Ninian Beall, and referred to in the rent rolls and debt books, were the same, the defendant offered in evidence, that Beall’s Reserve, as located by him, was situated in. the hundred of Prince-George’s county, distinguished by Grub Hundred, from which the said extracts are taken, and that the said Richard Lee had no land called Beall’s Pasture, Beall’s Plains or Beall’s Pleasure, unless Beall’s Reserve had acquired those names by reputation. And also offered in evidence, that Rickard Lee, and those claiming under him, had paid the taxes on the whole of Beall’s Pasture, and that the same had not been assessed to any other person, and that the whole tract was generally understood to be the property of said Zee, and those claiming under him. And also offered in evidence, the following certificates of adjoining surveys, and which were truly located by the defendant, viz. Potomack Landing, surveyed the 5th of April 1685: The Forest, surveyed the 5th of September 1694: Shrewsbury Plains, surveyed the 2d of October 1719: The Widow’s Trouble, surveyed the 15th of January 1732-6: Blacldock’s Venture, surveyed the 15 th of December 1755; and ThePlainsof Shrewsbury, suvveyed the 25th of January 1772. It was also proved, that the record books of the land office had been searched, and no patent for the land called Beall’s Reseive, fot which the defendant took defence, could be found; nor any certificate for tbe same. And further, that the record book for patents and certificates, recorded in the year 1695, was in the land office. The following testimony was also by consent admitted: The deposition of John Callahan, who deposed, that “previous to the year 1700, the register of the land office did not record, as it appears by the old record books in his office, the payment made by the party of the composition money for lands surveyed for such party, or make any marginal note in the record of the certificate of such payment, whether the certificate was made upon a warrant of resurvey, or whether the certificate, when returned, included more land than was expressed upon the warrant or warrants upon which the same was made. That in the year 1679, and before' and after, as far down as the year 1700, there are many certificates for lands surveyed for different persons, recorded in the land office* upon which it cannot be found that there is or are' any patent or patents recorded in sai.d office. That it is, and always has been, customary to recite in the patent or grant, when issued, the' consideration Upon which the same issiied, and the manner in which the composition money for the land mentioned in such grant was paid. That since the revolution several old patents, granted between the years 1678 and 1701, as far back as the year 1682, which were in the bands of those holding under the patentee therein named, and which had never before been recorded in the land office, have been produced to him-to be recorded, and have • been recorded; that it has sometimes happened to himself, since he has been in office, that the person for whom a patent was made out, took it to the governor to procure his signature, and having obtained it, never returned the patent to him to be recorded, whereby it happened that a patens in such case did regularly issue, and yet there was and isf no record of it in Ills office. That for near thirty years last past, he has from time to time*, frequently heard a report, that one of the old record books in the Proprietary land office, containing the record of patents, has been lost. That the record books in the land office refer from 
      «me to the other, and that he never found a reference to any record book which is not to be found in the office, and that lie from thence is of opinion no record book has been lost out of said office, burnt or destroyed. Also the deposition of John Brewer, who dep osed, that he was pud at present is an assistant clerk to John Kilty, register of the land office, and had for eleven years last past been clerk in said office, acting for many years in said office as a clerk to John Callahan, the register of said office, and that he never heard or understood that any record book belonging to said office had been lost or missing of late years. lie never heat’d or understood that any record book of said office had been lost during the revolutionary war, or at any period shortly before. That Mr. Callahan, now dead, informed him, that he had never seen in the office a reference to a book in the office which lie could not find; that seeing a record book of certificates in the office for a number which he could not find patents, he was sometimes induced to believe a record book of patents might have been lost; but-on the whole be thought no book was lost. That the warrants are all recorded in different books from the books in which the certificates aud grants are recorded, and he never heard, nor from many years examination of the records has he any reason to, helieve, that any record book of warrants was lost. The defendant also offered in evidence the warrants and the rent •rolls aforesaid, together 'with the other evidence offered by him, to prove that the said Beall was in the possession of the land until his conveyance to Janies llanfon; and to prove that Mantón also possessed the same until his conveyance to Lee. Arid also gave in evidence, that Bussell Zee, the grandson am] heir at law, died without having issue, and leaving Sarah Bussell Conlee, Ann Z.$c, Eleanor Ben.son and Margaret Clcrklee, the wife of the defendant, his heirs at law. The defendant then prayed the opinion of the court, and their direction to the jury, th.at if they find the several facts as stated by the defendant to be true, •that then, although they find the facts stated by the plaintiff to be true, they may and ought to presume a patent issued for Beall’s Beservs, and as contained in the before mentioned deed from Beall to Banton; and if they find the location of the deed as made by the defendant to he true, that, then they ought to find a verdict for the defendanív This opinion and direction the Court, [AY?/ and Clarice, A,.. J.'3 gave to the jury. The plaintiff excepted.
    
      To lay a foundation lor presuming a grant for land, it is Yieeessa ry‘ to show an incipient ’ title from the Proprietary; that is, an eq oí ta-* l»le interest diiect from the Proprietary by a located iVHtrant aml'paywent <>l the cumposiúon; or a certificate of survey under a common or other warrant, and payment of the cmrumsition, and length Of possession consequent on such equitable interest, in me person acquire imr the same, and'hose claiming qndei him . ' ' .' *
    . Where the dtfendanr in ejectment offered m evidence certain common warrants granted to N B m 2604, for th’e surveying severa- parcels ofland; ami to proVe that the land called B J?, lor which he rook defence, was surveyed under tlu said waiYaius, uAd that a patent had “been granu-u'ihyrHor to If B, and that the jury ou¿ht to pristine sdeh patent to have issuid, he offered ip evidence a tfeed from If B to J"R', dated in 1706,for a parcel of land cadcd B'Ji-, also certain < nliies ou theieut rolls, showing that B R ha<\ hei n survey i d for N B m )6U5. and an alienation thereof in 1700 hj N B'to ,1 R, and that it w#«j afterwards po-sensed bj it B— ‘Viso a deed U om J k to. R Bin 1737, forBi?, and that R Lliad paid the quit rents irom 1753 to 1772, and the couii.y assessments! ‘irom l*Fl to l%04sand that- R R. and his heirs, h.vd been in possession during that tim» —Held, that these facts Y/ere not sufficient for the jury to presume 3 patent ¿isued to N B loy the hind called B •* ' * 1
    
      2. The plaintiff then prayed the opinion of the court, and their instructions to the jury, that the evidence in this cause was insufficient to justify the jury in presuming that a grant was issued to Minian Béall for Beall’s Reserve. But the court refused to give such instructions. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.
    The cause was argued before Chase, Ch, J. and Nicholson, and Earle, J.
    
      Key, Slmafmd Magruder, for the Plaintiff,
    contended, that there was no case where the court had directed the jury to presume a grant where there bad been no certificate of survey, composition paid, and possession held under it. They referred to Hull's Lessee vs. Gough, 1 Harr. & Johns. 119. Cockey's Lessee vs. Smith, ante 20; and Kelly' Lessee vs. Greenfield, 2 Harr. & M‘Hen. 121.
    
      Martin, for the Appellee,
    cited Lloyd vs. Gordon, 2 Harr. & M‘Hen. 254. Carroll, et al. Lessee vs. Norwood, 4 Harr, & M‘Hen. 287. S. C. 5 Harr. & Johns. 155; and The Mayor of Kingston upon Hull vs. Horner, 1 Cowp. 102.
   Chase, Ch. J.

delivered the opinion of the court. The court are of opinion, that the court below erred in directing the jury to presume a patent issued for Beall’s Re* serve, as contained in the deed from Beall to It anion, on thp facts and circumstances stated by the defendant.

The court are of opinion, that to lay a foundation for the court to direct the jury to presume a patent from the Proprietary to any person, it is necessary to show an incipient title from the Proprietary; that is ap' equitable interest derived from the Proprietary by a located warrant, and payment of the composition; or a 'certificate of survey on a common or other warrant, and payment of the composition, and a length pf possession consequent on such equitable interest in thq person acquiring the same, and those claiming under him.'

In this case it appears that the origin of the defendant’s title to Beall’s Reserve, js the deed from Minian Beall to James Ranioft, and that aU the facts and circumstances subsequent to the date of the said deed, with the posses» siou in Richard Lee, and those claiming under him, are tleducible from the same source — the deed from licall io Rantori, — and in that manner may be accounted for, Richard Lee, and those claiming under him, were intruders* on the Proprietary, and their possession tortious, consequently the defendant can flerive no aid from such possession, as a constituent part of the grounds on which the prayer to the court to direct the jury to presume a patent! issued for BealPs Reserve, was founded.

The court dissent from the opinions of tlie court below, in both the bills of exceptions.

JUBGMEKT ItEfEIlSED, ANI> PSOCECENDQ AWASBp;  