
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1809.
    Andrew Bodden v. Frederick Speigner.
    Lands that escheat, cannot be regranted as vacant lands, hut must be sold pursuant to the escheat act. " .
    Motion from Richland district for a new trial. Action of tres, pass to try titles to land, tried before "Wilds, J. The plaintiff claimed, under a grant from the State to himself, dated in the year 1801, which had not the seal of the State appended thereto, but which was admitted without ‘ objection. The defendant claimed, under a grant from the State, to Jacob Sneider; and produced a fragment of the original grant, without the seal of the State. This fragment contained the date and' .description of the land, together with the name of the grantee. But the governor’s name did not appear signed thereto. Jts production, in evidence, %vas opposed; but it was admitted. The possession of the defendant had been Under this grant for a great many years. That it has been improperly admitted in evidence, was not made a ground for a new trial. {Quera, whether a copy of the patent should not have been produced ; and the imperfect original prod'uced, also, to shew the necessity of having recourse to the copy 1) The defendant then produced deeds of conveyance from Sneider, the patentee, to Caspar Kauntz. He then proved that Caspar Kauntz had died, leaving only one son; and that he died without heirs. And he proved that Sneider was in possession under the patent to him; and that Kauntz continued the possession under the conveyance to him, making a possession of about sixty years under Sneider’s patent.
    The. principal ground taken, on the motion for a new trial, was, that the judge had misdirected the jury, in laying it down to them as law, that where a man dies without an heir, leaving real estate, such estate shall not revert to the State, so as to authorize the issuing of a new patent, for the same; and that the State cannot be entitled to take and dispose of such estate, except by way of es-cheat ; and that the escheat law must in such case be duly observed. The other grounds were but little insisted on; and I believe not at all relied on. They were thought to be of no importance in the decision of the ease.
    The argument was heard the 16th of November, 1808.
    Nott, in support of the motion.
    The State became intitled to the land in question, after the failure of heirs of the proprietor ■Who had possession last under Sneider’s patent, and might regrant the same* It cannot be denied, that the land reverted to the State. The defendant claims as purchaser from Kaunts, but has not made ouj. a satisfaC[01y title. It is not necessary he should do so, unless we can maintain our position, that the patent to Bodden is valid ; for a plaintiff must recover upon the strength of his own title. The only question therefore is, whether when lands revert to the State for want of heritable blood, where the last proprietor dies intestate, the State may not dispose thereof by a new grant, as well as by any other mode which may be thought more proper ? Blackstone defines the nature of an escheat. 2 Bl. Com. 244. The lord must sue out a writ of escheat. If he neglects this, he is supposed to waive the escheat, Escheats may vest by purchase, or descent. Co. Litt. in the notes. An alien has capacity to take, not to hold. He cannot be ousted but by office found. But if an alien dies, and the land descends to his heir, the heir cannot take. The es. cheat, in that case, vests instantly in the king. 1 Hayw. When the possession is vacant, the lord may enter, and is not driven to his writ of escheat. Plowd. 229. The possession is cast on the king, where the proprietor dies without issue. Ib. 486. Where the land is forfeited for treason, there office must be found, to as. certain what land is forfeited. The land belongs to the attainted person, till office found. But when he dies his heirs cannot take, for the attainder works a corruption of heritable blood. The land therefore escheats, and vests immediately in the king. Where lands escheat for want of heirs, where there has been no forfeiture, they vest immediately in the king, without the ceremony of an of. fice found. It may be objected, that heirs may yet appear. That it is not absolutely certain there are no lieirs in existence. That it is only suggested, or believed, there are none capable of inhe. riting the laud. Therefore, there should be an office found, and the heir, if any should hereafter appear, ought not to be barred by this new grant, from demanding and recovering possession. To this, I answer, when the rightful owner appears, the grant must bo set aside ; but until he does appear the right of the State cannot be disputed.
    Cn appel, contra.
    
    The defendant proved a possession five years prior to 1776, by Kauntz; admit the land escheated ; some cere, mony required by law was necessary to revest the property in the State. To revest lands there, was by the common law writs of formedon and escheat. How else can it be known what land is revested, or what is claimed ? There must be an office found, even upon common law principles, to sanction the claim of the State, and authorize a disposition. He cited Co. Litt. 13, b. 8 Co. 10, Doughty’s case. Statutes 32, H. 8, 26. H. 8. Plowd. 488. Dyer, 326. Jac. Diet, verbo Escheat. And contended, that lands once granted cannot be granted again. The escheat act lias pointed out the 'mode of disposal, where the State is entitled to lands which relapse for want of heirs.
   May 6th, 1809.

Waties, J.,

declared the opinion of the court, Waties, Bay, Brevard, and Wilds, Justices. After noticing the several questions made on ¿the motion, and stating the principal question, which was alone discussed and relied on, he examined the doctrine laid down in Plowden 229, 48(5, and remarked, that there was a good deal of obscurity and uncertainty in it. The distinction is between a case where one dies without issue, and where.the lands escheat for want of heritable blood. In the first case the freehold is presently cast on the king, for it cannot be in suspense ; and the king takes without office found. In the se. cond case . the freehold in law is cast on the' heir, who shall hold until office found for the king. The heir, in such case, cannot in. herit by reason of the attainder of his ancestor. The reason of this distinction is not very evident. It must have originated in a feudal.principle, whióh never was in force in this country. He then proceeded to make a handsome and just eulogium on Judge Blackstone ; and adverting to his observations on the subject of escheat in his Commentaries, said, that his chemical skill in decomposing the most difficult legal subjects, had happily been applied in. explaining the points of difficulty in the case under consideration. From what he says, it must appear that the king cannot take by escheat, on bare surmise, and without the intervention of a jury> unless where there is no occupant, or in case of outlawry. ' He then stated how dangerous it would be in this country, to allow of such' a doctrine, and to give it such an operation, as would sanction the regranting of lands on mere suggestion, or surmise. That many bona fide possessions might be overthrown, and many honest titles be defeated, when put to the torture of a land inquisitor. But this doctrine cannot be recognized as law here. It is opposed to the mild and liberal spirit of our escheat law, which requires notice to be given to all the world, and makes proper provision for the heir, if he should appear. Escheated land cannot be granted again. The law under which the plaintiff’s grant was obtained, did not authorize it. There are different modes established as to jthe dis-Pos^‘on the Pu^’c lands. Vacant lands are to be granted upon the terms prescribed by the laws regulating that subject. And es°heated lands are to be sold publicly, after certain ceremonies an<^ Precautions are observed, according to the mode, and upon the terms pointed out by the law, regulating that subject. In this case the graut is to be considered void, because there has appeared an elder grant for the same land. It, therefore, appears, that the grant was obtained through fraud, or mistake. This appears by matter of record, which is incontrovertible. The land in question was not vacant land, when the grant to the plaintiff issued. If it has fallen to the State by escheat for want of heirs, the escheat law must be pursued, to enable the State to dispose of it legally. The plaintiff appears not to have acquired any legal title to it, from any thing that appeared in evidence at the trial, and, therefore,, we are all of opinion the verdict ought not to be disturbed.

Note. See A. A. 1787, P. L. 428. 3 Bl. Com. '73,258. 2 Bl. C. 245. 3 Burr. 1301. Co. Litt. 13, a. A. A. 1731. Special jury. See Plow. 213, 484. 3 Bl. Com. 259, and 2 Hen. and Munf. 330.

New trial refused.  