
    Martin & William Picket v. James Dowdall.
    October Term, 1795.
    Northern Neck — Forfeiture oí Land — NoracompSiance with Rules of Office. — Lord Fairfax had a right to establish rules of office for granting lands within the Northern Neck: and in case of forfeiture incurred by non-compliance with those rules, he was at liberty to grant the same lands to other persons. The issuing of a warrant to a second applicant, was a sufficient evidence of his intention to take advantage of the forfeiture.
    Same — Same—Entry for Forfeiture. — An entry "by lord Fairfax for a forfeiture was not necessary, except where a grant had been made to the person incurring the forfeiture.
    Same — Knowledge of Rules of Office Presumed. — Persons taking up lauds in the Northern Neck, are to be presumed conversant of the rules of the office.
    Owner of Survey — Laches— Forfeiture — Notice. — Where the owner of a survey has forfeited his right, by not obtaining a grant within the time prescribed, notice to a subsequent applicant will not affect his title, unless the original claimant was prevented by fraud from perfecting his title.
    Grants — Relation.—A grant relates back to the warrant, which is the inception of title; but not if it would work an injury to others, by destroying intervening rights fairly and legally acquired.
    Legal and Equitable Rights — How Divested.  — Legal rights, once vested, must be legally divested; but equitable rights may be lost by abandonment.
    This was an appeal from the High Court of Chancery, in a suit brought by the ap-pellee against the appellants for the conveyance of two tracts of land. The case was as follows: James Crap, in the year 1741, obtained a warrant from the office of lord Fairfax for surveying a certain parcel of land lying in the Northern Neck. The survey was made and returned in the same year, but no further steps were taken towards obtaining a grant by Crap, who died in 1773. His son, assigned all his right in the said land to the appellee, not considering it worth the expence of obtaining a grant. It appears by the deposition of one witness, that the plaintiff applied at the office for the papers, (but at what time is. not stated,) and that they could not be then found; but they were afterwards found in the year 1786, or in 1787. A grant of the land to Crap was made out and registered in the Proprietor’s office, but it was never executed by lord Fairfax. In December 1788, the appellee applied for and obtained a grant for these lands' from the Commonwealth’s land office.
    In 1762, the father of the appellants obtained a warrant, from the Proprietor’s office, and surveyed 243 acres, part of the land surveyed by Crap, for which a grant was made by lord Fairfax to his son, Martin Picket, one of the appellants, in the year 1780. In 1779, the other appellant William Picket, also procured a warrant, and surveyed 420 acres adjoining fche above, which includes *the balance of the land claimed by the appellee, for which he obtained a grant from lord Fairfax in the year 1780.
    The appellee charges in his bill, that the appellants and their father had notice of the title of Crap, before they surveyed the land in question, but this is denied by their answers, and no proof of it is made.
    It appears that lord Fairfax established sundry rules in his office, respecting 'the terms on which lands-might be acquired in the Northern Neck. Amongst others, the following was inserted in one of his entry books, which was begun in the s^ear 1734, viz: “rules of the office. That the entries are not demandable after being made six months, or the warrants taken out to continue longer than six months in force, unless renewed or consented to by the Proprietor or agent.’’ It is proved by sundry depositions, thait at different periods from the year 1740, to the yearly 1764, notices were given bjr lord Fairfax in the public newspapers & else where, calling upon all persons entitled to entries and surveys, to come forward within a limited time, and pay the composition and office fees, and receive their grants, or that their rights would be considered as forfeited and re-vested in the Proprietor. There is also strong proof in the record of abandonment of the land in question both by old Crap and his son after his death, on account of the indifferent quality of the land, and the ex-pence of obtaining a grant.
    The High Court of Chancery, being of opinion, “that the grant to the plaintiff of the land to which he is entitled ought to have relation to the time of the warrant, by authority of which the- said land was surveyed, so as to be prior in effect, to the title of the defendants, both of whom had notice of that warrant and survey before the grants under which they claim’’ decreed, that the defendants should convey to the plaintiff at his costs, with warranty against themselves and all persons claiming under them, their right and title in and to the land lying within certain bounds therein described, comprehended within the limits of Crap’s survey, and deliver possession to the plaintiff of so much' of the said land as they hold, and account with, and pay to him the rents and profits thereof, from the 10th day of August'1789; from which decree, an appeal was prayed.
    Marshall for the appellants.
    The rule of lord Fairfax’s office was, that those who did not within six months perfect their titles to lands for which entries had been made, could not afterwards demand a grant unless the same was consented *to by the Proprietor. They were considered as having abandoned their right, and the estate revested in the Proprietor, who' might grant the land to any other person. This rule is proved to have subsisted so early as the year 1734, of which the people in that District were constantly notified by advertisements inserted in the gazettes, and publicly posted up in the different counties. This rule being entered in the front of one of the entry books in the Proprietor’s office, those who applied there to take up unappropriated lands, must be presumed to have had notice of it. The existence of the rule is further established by the depositions of many witnesses, and is further strengthened bjT a consideration of lord Fairfax’s situation. Possessed of a very extensive territory, the value of which depended entirely upon its being parcelled out amongst those who as a retribution therefor were to pay him certain quit-rents, his revenue, as well as the means of supporting his office, depended upon the receipt of his fees, and of the stipulated rents, neither of which could be demanded, until after a grant had been made. It would have been highly unreasonable, that after a warrant had issued, the person owning it, should suffer it to lie dormant for many years, without going on to acquire the legal estate, and yet keeping off other applicants. I contend therefore, that Crap, by the rules of the office forfeited all rights to the land, and that the Proprietor, might legally make any other appropriation of it. But independently of this point, I consider that the right of Crap was lost by abandonment, and rely for evidence of his intention to abandon, not only upon his declarations, as proved in the cause, but upon the unreasonable length of time which elapsed between the issuing of the warrant to him, and that to the appellants, during which period he seems to have shewn no disposition to obtain a grant.
    I should insist if it were necessary that the appellants were purchasers without notice; for though it is proved that they had heard that Crap had taken up land, yet it does not appear that they knew it to be the land in dispute.
    But I do not wish to rely upon this, because I contend first, that the right of Crap was completely lost by forfeiture, and secondly, if not so lost, yet a Court of Equity will never set up this dormant right in favor of a man, who has been guilty of such inexcusable neglect, and who has lain by and permitted the appellants to take up and enjoy the land.
    Campbell for the appellee.
    I shall consider the title of Dowdall.
    1st, As it stands under the law.
    *2dly, As affected by the acts of the parties.
    And first, as it stands under the law. The rule laid down by the Chancellor is, that the grant has relation back to the warrant which is the inception of the title; gives authority to the public surveyor to lay off certain lands for a particular individual, and is in short the first and best evidence of a title, acquired either with, or without consideration. The grant is only evidence of a pre-existing right. But the objection to this commencement of our title is, that a forfeiture had in the mean time incurred, and therefore, a relation to the warrant would be improper. The forfeiture was produced by a non-compliance with the rules of the office; but what were those rules? One witness speaks of them as having been written in one of the entry books in lord Fairfax’s office, requiring persons to compleat their titles within six months. Another, speaks of an advertisement of the Proprietor’s in 176S, requiring all persons having claims to grants, to come in before September 1766, pay the fees and composition, and receive their grants. Another witness, speaks of an advertisement between the years 1740 and 1746 to the like effect, but fixing no time within which the parties were required to compleat their titles. Another witness says, that even if all these requisites had been complied with, it was in the election of lord Fairfax to make the grant or not as he pleased. Thus we see, that the rules and customs of the office are so vaguely stated, that no reliance can be placed in them. But the legislature, by the act of 1786, ch. 3. has regulated all these surveys, and referring back to the warrants and surveys, confirms the titles. But let me ask whether lord Fairfax, who in this respect is to be considered as a private individual, had any right to establish rules of property oppressive in themselves, and not warranted by the municipal laws of the country. He was at liberty to sell upon what terms he pleased. But having sold, he was as much subject to those laws and rules which prevail in contracts between other individuals as any other citizen was. He could not set up rules of his own to produce forfeitures not sanctioned by the common or statute laws of the land. Neither could his particular sitúa tion warrant it. If a private individual should sell land, and stipulate for payment by a certain day under any conditions whatever, he is as much injured by a noncompliance with the contract on the part of the vendee as the Proprietor was. Yet if the purchaser within a reasonable time should offer to pay, a court of equity would relieve against the legal consequences of his breach of contract, and compel a conveyance.
    ^Secondly. How is the title of Dowdall affected by the acts of the parties?
    The grants to the appellants, it is contended, destroys our right. But the loss of the papers which prevented Dowdall from caveating the appellants, was such an accident, as a court of equity ought to relieve against, and therefore the title of the appellants as opposed to that of the appellee, will be considered as if no grant had been made. It is evident that lord Fairfax did not suppose he was granting to the appellants lands claimed by the appellee, because it was his custom always to recite the forfeiture, where one had taken place.
    But it is said that Crap abandoned his right. ' Suppose he did, does this give a right to the appellants? He once had a title which he has neither given nor sold to them. He has in short done nothingto divest himself, or to vest an interest in any other person. If he chose not to occupy it, did the appellants thereby gain a right to it? Surely not. As to notice to the appellants I consider it to be clearly proved.
    Marshall in reply.
    It is not proved, (I conceive) that an application was made by the appellee for the papers before the transfer from Crap to Dowdall, and therefore, the argument of abandonment in Crap is not repelled.
    It is true, that the grant relates back to the warrant, in cases unattended by circumstances which would render the relation improper; as if the sale be conditional, or relinquished, and a grant is made in the mean time to another, this relation to destroy the intermediate right could never be admitted.
    As to the rule, it was entered in a book kept in the Proprietor’s office, which was, open to the inspection of all persons applying there to take up land. It is traced back to the year 1734 long before the date of Crap’s warrant, and therefore, it was not as Mr. Campbell supposes, ^.n arbitrar}' rule, made by the Proprietor for the purpose of forfeiting rights acquired under prior agreements with himself. But I ask, was not the rule a reasonable one? If dormant rights were permitted at any time to be revived, and to relate back to the warrant, no person could with safety have ventured to take up lands within that district, which’ would not only have been injurious to the Proprietor, but would have produced a great public mischief. If a grant had been made to Crap, he would have forfeited the land by non-payment of the quitrents for three years. Can he then be in a better situation by having violated his engagments; or-ought he thus to gain a benefit to himself, and to impose an injury upon another-*by his own default? If the forfeiture were out of the question, yet I would rely upon these considerations as sufficient to deprive Dowdall of the equity he asks, for, upon the supposition of an implied contract. It is said, the rule appears by the evidence to be very uncertain. This is not the case. The rule itself, as taken literally from the book in which it was entered, is an exhibit in the cause. The advertisements of lord Fairfax were not intended to establish a rule. He had a right to avail himself of the forfeiture without giving the parties an opportunity of preventing it. These advertisements were intended as an indulgence to those, who had not complied with the rules of office, by granting them a further time to come in and avoid the consequences of the forfeiture which had incurred. But they did not alter, or do ■ away the rule.
    The act of 1786 might be objected to, upon the ground, that the legislature could not grant away the property of lord Fairfax any more than it could that of any other individual. But it is unnecessary to stir that question. It is evident, that that law does not mean to authorise the register to issue a patent for lands, which had before been granted by the Proprietor.
    
      The PRESIDENT. It is surely unnecessary to labour this point, as it is too plain to be argued. The act of 1786, is not to be construed to extend to cases, where a grant had been previously made by lord Fairfax.
    Marshall. As to the forfeiture not being recited in the grant to the appellants, I am inclined to think that this was never done, but where prior grants had been made and forfeited, as for non-payment of quitrents, not seating and the like; and it was done in those cases, because, if the forfeiture were not recited, the former grant might prevail over the latter. But this was not done I believe where the forfeiture accrued in consequence of a non-compliance with {he rules of office in the earlier stages towards a title.
    But if an actual forfeiture had not taken place, yet I contend that the conduct of Crap and Dowdall has deprived them of all claim upon the equity of this court. This is not a contest between lord Fairfax and Crap, but between two purchasers under lord Fairfax. How is it, that a prior mortgagee standing by and permitting another to throw away his money upon the same security, without disclosing his mortgage, shall be postponed? The principle of that case applies to the present. For Crap, having notice (as is to be presumed) of the rule, and that many others might apply for a warrant to survey the same land, «without a possibility of knowing what former appropriations had’ been made of it, he takes no step to perfect his title and to remove this difficulty out of the way of other applicants. Lord Fairfax could not have compelled those to receive grants who had obtained warrants, but the party might have abandoned the property if he pleased, and his refusing to abide by the rules of the office, was all he could do to evince his intended dereliction.
    
      
      Northern Neck — Titie of Lord Fairfax. — Lord Fair-fax had a good title in fee to the soil of the Northern Neck, as admitted by the act of 1736, 1 Rev. Code, ch. 89, and recognized in adjudged cases by this court. Stephen v. Swann, 9 Leigh 404, 414, citing Hite v. Fairfax, 4 Call 42; Picket v. Dowdall, 2 Wash. 106: Johnson v. Buffington, 2 Wash. 116; Curry y. Burn, 2 Wash. 121: Marshall v. Conrad, 5 Call 364; Fairfax v. Hunter. 7 Cranch 603.
      Same — Same.—In Fairfax v. Hunter, 7 Cranch 603, 619. it was held that Lord Fairfax, at the time of his death, had the absolute property of the soil of the waste and unappropriated lands in the Northern Neck, and the acts of ownership exercised by him over that land vested in him a complete seizin and possession thereof. The court said: “On this point we bave the satisfaction to fiud that our view of the title of Lord Fairfax seems incidentally confirmed by the opinion of the court of appeals of Virginia, in Picket v. Dowdall, 2 Wash. 106; Johnson v. Buiilng-ton, 2 Wash. 116; Curry v. Burns, 2 Wash. 121.”
      Same — Equitable Title to Land in — Jn Norman v. Cunningham, 5 G-ratt. 77, Judge BaddwiN said: “It is clear that James Tutt acquired a good equitable right to the tract of land in the record mentioned. His warrant from Lord Fairfax, his survey under that warrant, and his subsequent claim and possession, without any proceedings had for forfeiture, or any adverse claim whatever, gave him an unquestioned and unquestionable right to demanda patent from the lord proprietor, or from the commonwealth as his successor, upon payment of the oifice fees and commutation money. Picket v. Dow-dall, 2 Wash. 106; Johnson v. Buffington, 2 Wash. 116; Curry v. Burns, 2 Wash. 121; Countz v. Geiger, 1 Call 190.”
      See the principal case cited in Noland v. Cromwell, 4 Munf. 168; Curry v. Burns, 2 Wash. 123, 126; Stephen v. Swann, 9 Leigh 420; Nelson v. Snddarlh, 1 Hen. &M 361; Johnson v. Buffington, 2 Wash. 120.
      Same — Subsequent Grants — Recital of Prior Forfeit ture. — In Alexander v. Greenup, 1 Munf. 142,4 Am. Dec. 543, the court said: “In the case of Picket v. Dow-dall, 2 Wash. 106, it was said by Judge Penddeton tha t 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.”
    
    
      
       Owner of Survey — Laches—Forfeiture —Notice.—The principal case is cited in M’Clung v. Hughes, 5 Hand. 483.
    
    
      
       Patents — Doctrine of Relation. — That the patent, which is the consummation of the title, does, in equity, relate to the inception of the title, see Taylor v. Brown, 5 Cranch 234, and the principal case cited in Noland v. Cromwell, 4 Munf. 172. But see the principal case cited in M’Clung v. Hughes. 5 Band. 478, in which the court disapproved this doctrine.
      In M’Clung v. Hughes, 5 Band. 480. the court said that the propositions laid down in Taylor v. Brown i* Cranch 234, in respect to the doctrine that the patent relates to the entry as the inception of the title, and that an entry made upon land not patented is invalid, are not supported by any decision of the Virginia court of appeals.
    
    
      
       Rights — Abandonment —As to the loss of rights by abandonment, see the principal case cited in Holmes v. Cleveland, etc., B. Co., 98 Fed. Rep. 107.
    
   FLEMING, J.

When lord Fairfax established an office for the purpose of parcelling out the lands in that extensive territory, some rules were necessary, and as he differed from other individuals in the extent and nature of his property, those rules would of course be general. I think he had right to establish such rules as he pleased, if they were reasonable. The one in question was established so long ago as the year 1734, long antecedent to Crap’s warrant. .It was, I think, considering lord Fairfax’s situation, a reasonable regulation, and it is to be presumed that it was known to all persons, who took up land within that district of country. The revenue of the Proprietor depended upon his quitrents, which not being demandable before a grant was made, it was proper, that the party should within a limited time place himself in such a situation, as to render the contract as obligatory upon himself, as it was upon lord Fairfax, or that he should leave the property open for subsequent appropriations. Crap, made his entry in 1741, and died in 1773, so that 32 years elapsed, during which time he took no step towards perfecting his title. If in his life-time he had obtained a grant, he would have forfeited his estate by the non-payment of quitrents for three years, and it is unreasonable that by his own neglect, he should better his situation, and subject the other party to the contract, to an inconvenience resulting from that neglect. More especially in this case, when that other party had notified his intention to avail himself of the forfeiture unless the indulgence then held out was accepted, and the terms of it complied with, within a reasonble time. I am therefore of opinion, that the right of Crap was lost by his neglect, and .that lord Fairfax might legally grant the land to the appellants, or to any other person.

CARRINGTON, —J.

I consider this case to be so extremely clear, that it cannot be made more so'by argument. The appellee having forfeited any right which he ever had to the land in question, by the most unreasonable negligence, has no ground upon which to establish an equity, which can entitle him to the relief afforded him by the decree. I think the decree ought to be reversed.

«The PRESIDENT. — The appellants have obtained titles to the land in question, prior in time to that of Dowdall, and consequently have the law in their favor. Has Dowdall superior equity to them, which shall warrant this court in depriving them of their legal estate? What is it he asks? That the posterior title which he acquired by his patent should relate back to the warrant, which was the inception of that title, so as to destroy the intervening right of the appellants. There are such things as relations in law, but they are legal fictions, invented for the purposes of justice, and not to work an injury to innocent third persons, who in the mean time have fairly and legally acquired a title to the subject in controversy. But if the doctrire were applicable to this case, there can be no question, but that Dowdall might have availed himself of it at law, and could not require the interference of a Court of Equity.

This brings us to enquire into the conduct of the parties. Has Crap done all in his power to entitle himself to a grant, or has he so conducted himself as to have deprived himself of such a right? If he has done all that it was necessary for him to do; then, as to lord Fairfax, the court would consider Dowdall as standing in the same situation, as if a grant had actually been made to him. But so far from it, he has done nothing which by the conditions under which he purchased he ought to have performed, and therefore he has not even acquired an equitable right. It is objected, that the rules of the Proprietor’s office were not only arbitrary and uncertain, but were locked up in secrecy. The answer given to this was compleat: they were made as public as they could be, and were reasonable in themselves. I have always been of opinion, that lord Fairfax was to be- considered precisely in the same situation as any other citizen. Tha.t he held his lands under the grant made to him as other citizens did. But his situation in the mode of parcelling out his lands was very different. He was the Proprietor of an extensive country, and therefore he could not make particular agreements with the different individuals who desired to purchase portions of his lands. On this account he established an office, employed different officers to transact the business of it, and laid down certain general rules defining the terms upon which he would grant his lands; and in forming those regulations, he appears to have assimilated them as nearly as possible to those established in the crown office with respect to lands lying in the other parts of Virginia. How can those rules be called secret, which were published in the entry books in the office, 'x'and which were open to the inspection of all persons applying for land. It is not unreasonable to say, that Crap must have known of the rule. He knew that the land was not to be given ; he made no special contract with lord Fairfax respecting it; and it therefore became necessary for him to know, upon what terms he did purchase, and in procuring this information, he must have got notice of the rule in question. Besides, he proceeded some steps in conformity with the rule. He obtained a warrant, and procured it to be surveyed, tho’ not in time. As to the reasonableness of the rule it is nothing to this court. Crap was at liberty to purchase under it, or to let it alone, if he did not like the terms. The parties were the proper, and the only judges of this. Crap having surveyed the land went no farther. He paid neither fees, nor composition, and consequently deprived lord Fairfax of such a portion of his revenue. How then can we consider him as standing in the same situation, as if he had actually obtained a grant? It was objected, that lord Fairfax should have made an entry to compleat the forfeiture, or should have done some act tantamount to an entry. This might have been necessary if he had made a grant to the appellee, and the forfeiture had incurred afterwards, — as for non-payment of quit-rents. It was not necessary, where the legal estate had never been out of him. But if it were, I think he did an act tantamount to an entry, by granting warrants to the two Pickets to survey the land for themselves. As to the custom of reciting in subsequent grants the prior forfeiture, I suppose it was similar to that which prevailed in the crown office, and there, it was never done, but in cases where there had been a prior grant.

Concerning the advertisements of lord Fairfax, I do not think he was in any manner obliged to give the notice for which they were intended. It was Crap’s duty to perform the conditions which the rules of the office imposed, by paying the composition, and applying for his grant. This he was at least bound to do within a reasonable time, and before the land was re-granted. The advertisements held out an indulgence, which not having been accepted, nor the terms of it complied with, diminishes still more the c'aim of Dowdall to the relief of a Court of Equity. It is true, that the appellants did not strictly comply with the rules of the office, and of course they were liable to the legal effect of such conduct, if a warrant had been granted to another. But this was not done; lord Fairfax, exercising a power which belonged to him, waved the forfeiture, and as a proof that he had done so, executed grants to them.

*1 think the abandonment by Crap is fully proved. It is true that legal rights once vested, must be legally divested ; but equitable rights may be lost by dereliction.

It is unnecessary to enquire if the Pickets had notice of Crap’s title. Since if they had, it could not have affected them, unless Dowdall had been prevented by fraud from obtaining a legal title.

Upon the whole, I am of opinion that the appellants have superior equity on their side, especially against Dowdall, who seems to have come into the dispute as a volunteer, under an idea, that the act of 1786 had given him a chance. But it is too clear, that that act cannot apply to cases where grants had been made by the Proprietor.

The Opinion of the Court is, “that the ap-pellee’s grant in the year 1788, ought not to have relation to the time of the warrant, by authority of which the land was surveyed, dated in 1741, so as to be prior in effect to the intervening title of the appellants; because relation being a legal fiction adopted for the furtherance of justice, is not to be admitted in any case to produce wrong and injury to others, nor particularly in this case, where that relation comprehends a period of 47 years, and tends to establish a dormant claim in equity, never perfected by James Crap the elder, by paying the office fees and composition, so as to entitle himself to a grant of the land, but on the contrary forfeited and abandoned by him, and by his heir after his death, as being not worth the pursuit, in consequence of which the Proprietor might lawfully grant the lands to another, and accordingly did grant them to the appellants, whose conduct in obtaining their said grants and legal preference appears to have been fair and irreproachable so as to entitle them to more equity than the appellee, who became a volunteer for reviving this dormant and abandoned claim, some years after the date of the grants to the appellants, and that the said decree is erroneous.”

Decree reversed with costs, and the bill dismissed with the costs of the Court of Chancery.  