
    M’Clean v. Tomlinson.
    Decided, Nov. 19th, 1816.
    i. Patent — Survey Hade before Warrant Obtained— Effect. — A patent Is not void on the ground that the survey was made first, anil the warrant obtained afterwards, though such irregularity appears on its face.
    2. Same -Omission to Insert Name of County — Irffecl.— An omission to insert the name of the County, in which the land lies, is not sufficient to vitiate a I 'atent; the place being described with reasonable certainty.
    The Appellee Tomlinson brought Ejectment against the Appellant, claiming four hundred acres of land in Ohio county, on the Round Bottom. A special verdict was found, stating the title of the parties at large. That of the defendant rested on a grant to the late General George Washington, dated October 30th, 1784, for five hundred and eighty-seven acres. This grant was set forth at large in the verdict; and, on its face, is stated to be issued on a survey bearing date the 14th of July, 1773, on warrants, of subsequent dates, in the years 1773 and 1774.
    The verdict, after setting forth the title papers of the parties, refers to as urvev shewing the interference between their claims; and states that, if the lines of Washington’s Patent extend to the points, called for by the defendant, they would include upwards of twelve hundred acres. The original survey was found in this verdict; the date thereof being anterior to the dates of the warrants.
    Judgment was given for the lessor of the plaintiff; to which M’Clean obtained a writ of supersedeas from this Court, where Judgment of reversal was given on the 8th of October, 1811, and the cause sent back for a new’ trial; “the Court being of *opinion that the facts, found in the special verdict, are not sufficiently explicit to enable it to give a correct judgment on the merits of the case; particularly, in not finding, whether the Patent, issued to George Washington in the proceedings mentioned, under which the plaintiff in error claims, comprehends within the boundaries thereof those of the land in controversy. ’ ’
    Another trial was had, and a special verdict found, agreeing in substance with the former, except that it finds, in express terms, that “the grant to George Washington includes the whole of the land in dispute.” It also finds that the dates of the warrants and survey are truly recited in the grant to Washington; that on the 14th of July, 1773, the surveyor of West Augusta a made a private survey; and that, after the 17th of May, 1774, the date of the latest warrant, George Washington procured him to make out the plat and certificate of survey, on which the grant issued.
    The title papers of the parties, as stated and referred to in both verdicts, stood thus: Washington’s Patent, dated October 30th, 1784: his deed to M’Clean, conveying the land with warranty, for a valuable consideration, dated August 8th, 1798. The title of Tomlinson rested on a grant, upon a settlement right, dated the 27th of February, 1800.
    The Superior Court of Ohio county gave Judgment in favour of Tomlinson; whereupon M’Clean appealed.
    Wickham for the Appellant.
    The last [ verdict having found that the lands in dispute are included within the bounds of Washington’s Patent, this finding is conclusive between the parties under the former Judgment in this case by which it was determined that the inconsistency in the dates of the survey and warrants, appearing on the face of that Patent", did not affect its validity.
    Doddridge contra.
    — I am informed that the Court gave no opinion upon the validity of the Patent.
    ” Wickham. I contend that the Court, not having reserved the point, necessarily decided that the Patent was valid. If the Court had considered the Patent void, it would never have sent the cause back for a new trial to ascertain the boundaries. *But if the question were now a new one, the Patent ought to be sustained, as good and effectual. An impossible, or contradictory date does not vitiate a Patent,  Nor the circumstance, (though appearing on its face) that the survey was first, and the warrant afterwards: for, where the Patent conveys what the Common wealth has power to grant, irregularity in obtaining it does not vitiate,  In Alexander v. Greenup,  there was no power to grant at all. The principle, also, of the case of Bassly v. Fontaine,  applies to this case.
    No testimony ought to have been received concerning the manner and time of executing the survey; and, if such testimony were proper, the facts found by the Jury do not affect the validity of the Patent; for no fact is found, which implies fraud in Washington, or in the surveyor; and fraud is never to be presumed. There could indeed have been no motive for such fraud; for the Commonwealth was not injured by it.
    But, even if the grant were fraudulently obtained, it was not void; but only voidable by a scire facias; and, while it continued in force, the subsequent grant to the Appellee did not pass a title to him.
    
    Doddridge for the Appellee. Washington’s Patent in this case is the only one, with such a recital, that ever issued in this country. It is clearly not justified by the law of 1779. An unofficial survey was made; and Washington, afterwards, obtained Warrants and a Patent. He was bound by lav? to have a re-survey, after getting the Warrants.
    In 6 Bac. Ill, the cases are stated, in which the writ of scire facias to repeal a Patent may be awarded in England. But there is a difference between the grounds for repealing a Patent in that country, and in this. The Register of the Band Office is not seized in his demesne, like the King. He has only a delegated power, and cannot convey except in the manner directed by law.
    The form of a Patent, prescribed in Gh, Rev. 97, is not followed in this. The County where the land lies is also omitted.
    Wickham. It is certainly regular that every description, necessary to identify the land, should be inserted. The County *is not always requisite, when the spot is sufficiently notorious. Here it is known by the name of the Round Bottom. It might not have been known in what county the land in question was comprehended, though the place, was well known. The words used in the law, in relation to the county, are merely directory to the Register; but the Patent is not void by the omission to insert them.
    
      
       The principal case is cited in Cresap v. M’Lean, 5 Leigh 388, with approval.
    
    
      
       Roberts v. Stanton, 2 Munf. 129; Ross v. Overton, 3 Call 310: Shepard's Touchstone, 233.
    
    
      
       Witherinton v. M’Donald, 1 H. & M. 306; Com. Dig-. Title Patent, (F. I.)
    
    
      
       1 Mnnf. 134.
    
    
      
       4 H. and M. 146.
    
    
      
       Com. Dig-. Title Patent, I<\ and Acts of 1814, ch.
    
    
      
       Norvel v. Camen & Wife, 2 Munf. 257.
    
    
      
      
         Ch. Rev. 90.
    
   Tuesday, November 19th, 1816, the President pronounced the Court’s opinion, that the Judgment be reversed, “the law arising upon the special verdict being for the Appellant;” and that the Appellee take nothing, &c.  