
    *Wilson's Heirs v. Daggs.
    August, 1837,
    Lewisburg.
    (Absent Brockenbrough, J.)
    Caveat — Judgment Dismissing — What Does Not Bar Supersedeas to. — After the dismission of a caveat upon the merits, the caveatee flies in the land office a copy of the judgment, and obtains a patent. A supersedeas being awarded to the judgment, the patent is relied on as a bar. Hkkd, notwithstanding the emanation of the patent, the court m ay examine into the correctness of the j udgment; but if the same be reversed, then admission of the caveat must ensue. In such case, the dismission will be without prejudice to any proceeding which may be instituted to vacate the patent.
    Entry — Validity of. — A party cannot malte a valid entry upon lands on which another has previously made a regular entry.
    Same — Same.—An objection that the warrant under which the first entry was made had been previonsly exhausted by other entries, will be of no avail, when It appears that those other entries were in the names of persons who, though they called themselves assignees of the warrant, had in fact no assignment.
    Caveat — Failure to Return Survey within Twelve Months — Effect.—A caveator whose survey had not been made 12 months before he entered his caveat, will not have judgment rendered against him, merely because the 12 months, allowed for returning the plat and certificate of survey into the land office, have elapsed pending the caveat.
    On the 9th of December 1833, Samuel Stephenson, Sarah Stephenson, Guy P. Matthews, Jane Matthews, and Orestes, John C., Julia Ann, Robert M., Andrew D., Mary, Martha, Alexander H. and Patrick H. Wilson, entered a caveat in the land office, against issuing a grant to Ruel Daggs junior, on a survey of 170 acres, made the 16th of January 1833, of lands in Kanawha county, by virtue of an entry of the same date; it being stated in the caveat, that the caveators, as the heirs at law of John Wilson deceased, claimed 105% acres of the land, by virtue of an entry made the 25th of October 1832. A certified copy of this caveat, and of the affidavit filed therewith, was delivered to the clerk of the circuit court *of Kanawha on the first of January 1834: and a summon issued according to the statute, which was duly executed. The parties thereupon agreed the facts, as follows:
    That on the 25th of February 1823, a land office treasury warrant, number 7436, was issued in favour of Matthew Dunbar, authorizing the survey of 200 acres of land: and Dunbar, on the 21st of April 1824, by an endorsement on the warrant, under his hand and seal, assigned the same to John Wilson the ancestor of the caveators. That on the 9th of November 1824, Wilson, by virtue of the warrant, made an entry in the office of the surveyor of Kanawha county, stating that he entered 150 acres of land in said county, on Davis’s creek, beginning at the mouth of the middle fork, to include the land on the forks of said creek, joining a survey of Thomas Ray on the west side thereof. That on the 2d of July 1831, John Wilson junior made an entry in the surveyor’s office for 150 acres of land, of which 50 acres was entered by virtue of the same warrant. The entry stated, that John Wilson junior entered 150 acres in Kanawha on Davis’s creek, beginning at the mouth of the middle fork of the same, and joining a survey made for Thomas Ray or G. Christian, on the west side thereof, by virtue of part of two warrants ; 50 acres by part of the said warrant number 7436, and 100 acres by warrant for 300 acres, number 7438, both dated the 25th of February 1823; and that he made the-said entry as the assignee of John Wilson, who was assignee of Matthew Dunbar, to whom the warrants issued. That on the 25th of October 1832, John Wilson the ancestor of the caveators, by virtue of the same warrant number 7436, made an entry in the surveyor’s office for 200 acres of land in Kanawha on Davis’s creek, to begin in or between the second forks, at or near a poplar and mulberry on the north bank of the main fork, above the mouth of the middle fork; to run with the line or Mines of a survey made for Gilbert Christian, and to include the improvement occupied by Reuben Daggs, for quantity. That on the 12th of February 1833, John Wilson senior being then dead, a survey of 200 acres of land was, by virtue of the last mentioned entry, made for his heirs; the certificate of which survey is set forth in haec verba. That the plat and certificate of said survey were not returned to the land office, nor was any copy thereof, within one year from the date of the said survey, or at any time since; nor has the warrant, upon which the said entry was founded, been returned to the land office. That on the 9th of April 1829, John Patterson entered 100 acres of land in- the surveyor’s office, by virtue of the same warrant number 7436; and on the 6th of April 1830, the land so entered for Patterson was conveyed for him; the certificate of which survey was set forth in haec verba, and; expresses on its face that Patterson was the assignee of John Wilson. That the plat and certificate of survey made for Patterson were duly returned by him to the land office, and a patent issued thereon to him for the said 100 acres. That Reuben Daggs, for Ruel Daggs junior, on the 16th of January 1833, made an entry in the surveyor’s office for 170 acres of land in Kana-wha county, on the waters of Davis’s creek, to begin at a chesnut, beech and chesnut oak on the top of the hill on the west side of the creek, about 300 yards from the creek, and to run so as to include the fiat land on the top of the hill, and the improvements on which Reuben Daggs and Valentine Fauber then lived; which entry was stated to be by virtue of two warrants, number 7604 and number 7600, for 100 acres each, dated on the 29th of January 1824, assigned to Daggs by William F. Styles assignee of Henry O. Middleton, who was assignee of Thomas O. Taylor heir of Thomas A. Taylor deceased; 100 acres being by virtue of warrant number 7604, and 70 acres by virtue of warrant number 7600. That on the 16th *of January 1833, the said 170 acres entered by Daggs were duly surveyed, and within one year after-wards the plat and certificate of survey were duly returned to the land office; which plat and -certificate are set forth in hasc verba. That Reuben Daggs, at the time of the entrj' on the 16th of January 1833, had notice of the entry made by John Wilson senior on the 25th of October 1832. That the survey for Daggs includes about 105J4 acres of the land surveyed for the heirs of John Wilson senior, by virtue of his entry made the 25th of October 1832. That the warrant number 7436 nas no assignment endorsed on it, except that from’ Matthew. Dunbar to John Wilson, dated the 21st of April 1824. That the caveators are the heirs of John Wilson. That not only the said entry of the 25th of October 1832, but the previous entry made by John Wilson on the 9th of November 1824, and that made by John Wilson junior on fhe 2d of .July 1831, were upon the same land, or upon portions thereof. And that the said John Wilson junior is one of the caveators, and was born some time in January 1811.
    Upon these facts the circuit court was of opinion that the caveators shewed no right to the 10534 acres of land, and dismissed the caveat upon the merits; giving judgment in favour of the caveatee for his costs, and leaving him at liberty to perfect his title to the 170 acres, by obtaining a patent therefor. To this judgment a super-sedeas was allowed.
    Before the award of the supersedeas, a copy of the judgment had been delivered into the land office, and a patent obtained by the caveatee. He now offered to plead this patent in bar of any further proceeding upon the caveat.
    B. H. Smith, for plaintiffs in error.
    Summers, for defendant in error.
    
      
      The principal case was cited and followed in Patrick v. Dryden, 10 W. Va. 411, 412, 415. See generally, monographic note on “Caveat” appended to Warwick v. Nor veil, 1 Rob. 308.
    
   *TUCKER, P.

That a plea of the patent would offer no bar to the super-sedeas in this case, seems obvious, since it neither presents any answer to the allegation of error, nor operates in avoidance of it. The emanation of a patent, indeed, during the pendency of a caveat, leads necessarily to its dismission, since, after the issue of the patent, the judgment that it shall not issue must be a vain judgment. It goes, therefore, rather to the abatement of the caveat, than to bar the rights of the parties; and whether the court comes to be informed of the fact by suggestion, which is the usual course, or by plea (which has never been hitherto practised, Í believe, as the proceedings in caveat are directed to be without writing,) still the operation of the proceeding is merely to terminate the caveat by dismission. Butin reference to the supersedeas or writ of error, the fact can have no influence, except to shape the entry of the court in case of a reversal of the judgment. This will be manifest from a few considerations.

If the judgment below is right, then Daggs the defendant in error is entitled to an affirmance of that judgment, which, having been rendered upon the merits, will be final both at law and in equity; whereas, if the caveat be now dismissed without affirmance, it will be without prejudice to his adversaries’ proceeding in equity, since the dismission must be without prejudice.

If the judgment below is wrong, then if the supersedeas should be dismissed, the judgment will stand in full force, and bar the caveators of all relief in equity, however erroneous it maybe; and moreover ■Wilson’s heirs will have been deprived of their unquestioned right to review and reverse the judgment, by the act of their adversary. This cannot be. The supersedeas, then, must be decided.

The true course then seems to be to proceed to examine the record, and to affirm or reverse, according as the judgment may appear to be right or wrong. If we *affirm, there is an end of the matter.

If we reverse, then the farther duty devolves upon the court, of pronouncing such judgment as the superiour court should have pronounced; and then, and not till then, the fact of the emanation of the patent will bear upon the proceeding. For, as it did not occur before the-judgment, the court below could not dismiss; but as it has since occurred, it renders vain the entry of a judgment for the caveators upon the merits, and an order to the register not to issue a patent to the caveatee. Our entry must then, in this aspect of the case, be to dismiss the caveat without prejudice.

Coming then to the merits, we find not the least difficulty in reversing the judgment. Wilson’s entry is prior and regular. That entiy was full notice .of his prior right to Daggs, and it would have been a fraud in him to obtain a patent to the prejudice of that right. The judgment therefore ought to have been for Wilson’s heirs, unless some valid objection can be shewn to it. Accordingly, this is attempted.

It is said that the warrant of Wilson for 200 acres was exhausted before his entry of 1832, by the entry and patent of Patterson, and by the entry of John Wilson junior. But neither of these persons was assignee of the warrant. The law prescribes the -mode of assignment, and the case agreed shews that there has been none. Wilson’s rights in the warrant then have not been divested by the fraudulent use of it, or pretended use of it, by others.

It is said that Wilson’s survey was not returned into the register’s office within the 12 months, and that although the twelve months had not expired when the caveat issued, yet the court, upon the hearing, rightly considered him as having lost his right, and as having inferiour equity to Daggs. This position appears to me altogether erroneous. Waiving the question whether matter ex post facto to the caveat can properly affect the *decision of it, it suffices to say, that the failure to return the survey, though a good cause of caveat, is no forfeiture of the rights of the party; for if no caveat be entered before that duty is performed, it is declared that the land shall not be liable to forfeiture on that account. 1 Rev. Code, ch. 86, § 45, p. 332. Nay more, I incline to think that Wilson’s heirs, having ca-veated the defendant in error, were not bound to return the plat until the termination of the caveat, the statute having allowed six months after the termination of the caveat, for the caveator to return his survey &c. Indeed it would have been a fraud on Daggs to proceed to get a patent while the caveat was depending; and if the caveators had returned their plat and certificate, the patent must have been issued by the register within nine months. Whether, therefore, Wilson’s heirs were liable to be caveated by any other person, they could not have been caveated by Daggs for that cause, as the default did not exist till after the filing of the caveat.

It is said that there was no necessity for'a cross caveat, but that on the caveat of Wilson’s heirs themselves, their rights should be adjudged to be forfeited. This is in direct conflict with the act, which declares they shall not be forfeited until another person has caveated.

Upon the whole, the merits seem decidedly with Wilson’s heirs. And the defendant having withdrawn his plea at the instance of the court, and rested upon a suggestion of the fact that the patent had issued, and having produced the patent in court, I am of opinion that the judgment should be reversed, and a judgment entered dismissing the caveat, without prejudice to any proceeding which the plaintiffs in error may institute for the vacation of the patent aforesaid.

The judgment of the court of appeals was in the following terms :

“The court is of opinion that there is error in the judgment of the circuit superiour court of law and *chancery, in this, that the law arising upon the facts agreed in the cause was for the caveators. Wherefore it is considered by the court that the said judgment be reversed and annulled, and that the plaintiffs in error recover against the defendant their costs &c. And this court would now proceed to render such judgment as the said circuit superiour court ought to have rendered, but that the defendant in error comes here into court, and gives the court to be informed and understand that after the rendition of the said judgment, and before the award of the supersedeas in this case, a patent hath issued to the said defendant in error, upon producing to the register a copy of the judgment of said circuit supe-riour court. And said patent being produced here in court, and seen and inspected, and it being admitted to be for the land in controversy, it is adjudged and ordered that the caveat be dismissed, but without prejudice to any suit or proceeding which the plaintiffs in error may institute to vacate the patent aforesaid. And it is further adjudged and ordered that the plaintiffs in error recover against the defendant their costs about the prosecution of their said caveat in the said circuit superiour court.”  