
    Hambleton v. Wells.
    [June, 1791.]
    Ejectment — Judgment—Case at Bar. — If there be three defendants in ejectment, who appear at different times; the first pleads, and, as to him, issue is joined; the second is admitted a defendant, but does not plead: the third pleads, but no issue is joined: and in this state, the cause is tried, and verdict and judgment be given for the plaintiff, it is not error, notwithstanding there was no plea for the second defendant, nor issue as to the third; for their rights remain untouched, and may be'tried when issues are made up as to them.
    Same — Evidence—Patent Obtained Illegally. — In eject-merit, it is competent to the defendant, to give in evidence that the patent, under which the plaintiff claims, was obtained contrary to law, although upon the face, it appears to have been regularly issued.
    Alexander Wells brought ejectment for a tract of land situate in the county of Ohio. In October 1787, James Hambleton was admitted defendant; pleaded tbe general issue; confessed the lease, entry and ouster ; and agreed to insist upon the title only at the trial; and of this he put himself upon the country, and the plaintiff likewise. The cause was continued from time to time, until the 4th of May, 1790; at *which day the record states, ‘ ‘David Bradford, on motion, is admitted a defendant in this suit, and from reasons appearing, a further day is given the parties till the next court. ” The record then proceeds as follows: “at which day, to wit, on the twentieth day of September in the same year aforesaid, John Decker, on motion, is admitted co-defendant in this suit, and thereupon pleads the general issue, confesses the lea.se, entry and ouster in the declaration supposed, and agrees to insist on the title only at trial.” No issue was joined upon this plea; but the record proceeds thus: “This day came the parties by their attornies, and thereupon came a jury, &c. ” At the trial of the cause, the defendants filed a bill of exceptions to the court’s opinion, stating, that he offered in evidence, 1. A copy of the proclamation of George III. authorizing the governour and council to grant lands to certain officers and soldiers. 2. The testimony of sundry witnesses to shew, that the warrant upon which the deed of the plaintiff’s lessor was issued, was granted to a certain Sarah Gibbs, representative of John M’Nelly, deceased, and not to the soldier himself as is made necessary by the said recited proclamation. 3. The testimony of the said witnesses, that there never was a survey made by any county surveyor, or his deputy, properly commissioned by the college of William and Mary, acting in conformity to the laws and rules then in force, and that the said lessor of the plaintiff, the patentee, was actually privy thereto, and procured a plat to be returned without a survey actually made. 4. Two other witnesses to prove that there was an actual settlement and improvement made upon the lands in the declaration mentioned by a certain Isaac Cox in the year 1771, before anj' warrant was issued to the said Sarah Gibbs. S. An order of council, dated the 16th of December, 1773, protecting actual settlers of land on the western waters, against the rights of the officers and soldiers. 6. An instrument of writing purporting to be an assignment from the said Isaac Cox of his settlement right and all the title he had to the said land, to John Decker, one of the defendants. 7. The ^original book of the commissioners appointed in pursuance of the act of assembly of 1779, who have therein recognized the right of settlement in Cox by certificate to have been prior to the time mentioned in the said law. 8. A deed, issued from the commonwealth’s land office in pursuance of the said certificate, which deed is in the words following: “Patrick Henry, esquire, &c.” That the district court rejected all the evidence aforesaid, except the said last mentioned deed from the governour. Verdict and judgment for the plaintiff; and the defendants appealed to this court.
    
      
      Ejectment — Evidence—Fraud In Procuring Patent— Principal Case Disapproved. — The decision in the principal case, that fraud in. procuring a patent may be given in evidence to vacate that patent, even on the trial of an ejectment, cannot be considered as settling the law, in light of the following remarks by such eminent judges as Cabell, and chief Justice Marshall, in referring to that decision.
      Thus in Noland v. Cromwell, 4 Munf. 173, Judge Cabell said; “In the case of Hambleton, etc., v. Wells, it was decided, that fraud in procuring a patent might be given in evidence to vacate that patent, even on the trial of an ejectment. In Witherinton v. M’Donald, it is stated that the case of Hambleton v. Wells, had not been considered as having settled the law, as it was the only case on the point, and the court nearly equally divided; but I perceive nothing that can excite a doubt as to the right of a court of equity to interfere in such a case. White v. Jones, 1 Wash. 116, seems conclusive. In that case, where there was an allegation of fraud, the chancellor had refused relief on the ground that the fraud vacated the patent, and that, the patent being null and void, the party might have had redress at law. But this court, although it affirmed the decree of the Chancellor in dismissing the bill, did it on a very different ground; vfe. that although the fraud was charged, it was not proved; expressly declaring, however, that where fraud is suggested and proved, courts of equity have concurrent jurisdiction, and can-afford the most ample and adequate redress.”
      In Stringer v. Young, 3 Peters 340, Mr. Chief' Justice Marshall, delivering the opinion of the court, said; “In Virginia, the patent is the completion of title, and establishes the performance of every prerequisite. No inquiry into the regularity of those preliminary measures which ought to precede it, is made in a trial at law. No case has shown that it may be impeached at law, unless it be for fraud; not legal and technical, but actual and positive, fraud in fact, committed by the person who obtained it; and even this is questioned.
      
        “Hambleton et al. v. Wells, reported in a note in 1 Hen. & Munf. 307, the defendants in ejectment in the District Court offered evidence to prove that, the grant under which the lessor claimed, was defective in several prerequisites to a patent. The Court of Appeals overruled these objections; but. determined ‘that the District Court erred in not. permitting the appellants to give evidence that the appellee procured the plat on which the patent was; obtained to be returned to the office, knowing that an actual survey had not been made.’ In this case the objectionable act was a fraud, knowingly committed by the patentee himself. Even this case has; been questioned; though not, as far as is known,, expressly overruled,
      “In Witherinton v. McDonald (1 Hen. & Munf. 306), the defendantin ejectment offered evidence to show that the survey upon which the plaintiff’s, patent was founded was illegal; and also that the' patent was obtained upon a certificate signed by Charles Lewis, as clerk of the land office, instead of being signed by the register or his deputy, as is, required by law. The defendant excepted to the opinion of the court rejecting this testimony, and appealed to the Court of Appeals. The judgment, was unanimously affirmed In that court. In the course of the trial, the case of Hambleton v. Wells, was mentioned by several of the judges with disapprobation; and it was said that a single case decided by three judges against two, was not. considered as conclusively settling the law.”
      In Witherinton v. M’Donald, 1 Hen. & M. 308, 309, the principal case is disapproved on this point, by the majority of the court. Seethe principal case cited in White v. Jones, 4 Call 257. See monographic: note on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.
    
   PENDLETON, President,

delivered the resolution of the court, as follows:

Two small objections were made to the proceedings in the cause, namely, that there was no plea as to one of the defendants, nor any issue as to another: neither of which the court thinks material. Eor, if they were errors at all, they were the errors of the clerk, and amendable. But the court is of opinion they cannot be regarded as errors, under the circumstances-of the case. Eor there were three defendants, who appeared at different times, and each of them offered himself as defendant to the whole tract. Their defences therefore were separate and not joint; andas Hambleton stood first in the order of time, and the issue as to him, was properly joined as to the entire tract, judgment might properly be rendered against him for the whole, if the plaintiff made out his case and proved himself entitled to recover, leaving the questions untouched as to the other defendants, who consequently can have no reason to complain, as they will have an opportunity of contesting the pase upon the merits, whenever the issues are made up, and tried as to them.

The principal points arise upon the bill of exceptions, which presents the following case:

The defendants offered eight pieces of evidence to the jury, namely, 1. A copy of the proclamation of George the third, that lands would be granted to certain officers and soldiers. *2. The testimony of sundry witnesses to shew, that the deed of the lessor of the plaintiff was granted to Sarah Gibbs, representative of John M’Nelly, deceased, and not to the soldier himself, as was made necessary by the proclamation. 3. The testimony of the same witnesses to prove that there never was a survey made by any county surveyor properly commissioned, and that the lessor of the plaintiff (the patentee) was actually privy thereto, and procured a plat to be returned without a survey actually made. 4. The testimony of two other witnesses to prove an actual settlement by Isaac Cox before the warrant to Gibbs. 5. An order of council protecting actual settlers of land on the western waters against the right of the officers and soldiers. 6. An instrument of writing purporting to be an assignment from Isaac Cox of his settlement to the defendant John Decker. 7. The original book of the commissioners, under the act of 1779, recognizing the right of settlement in Cox by certificate, as prior to the time mentioned in that law. 8. A deed from the governour in pursuance of that certificate. Upon this evidence being offered by the defendants, the district court rejected it all, except the deed, as it is called, from the governour. The jur3r then found a verdict for the plaintiff for the lands in the declaration, and the district court gave judgment accordingly. The question therefore is, whether the district court erred in rejecting the evidence? This court has reflected on the case, and approves of the opinion of the district court as to all the evidence, except that which tended to prove that the patent issued without a survey actually made; for, if the patent did, in fact, issue without a previous survey actually made, it was void in law; and therefore that part of the testimony ought to have been received; and .the court below erred in not permitting it to go to the jury.

The judgment, consequently, is to be reversed, and the following is to be the entry:

“The court is of opinion, that the said judgment is erroneous in this, that the said district court ought to have permitted *the appellants to give evidence that the appellee procured the plot, on which his patent was obtained, to be returned to the office, knowing that an actual survey of the land had not been made; and which, if proved, would, in the opinion of this court, make the grant void at law: Therefore it is considered by the court, that the said judgment be reversed and annulled, and that the appellants recover, against the lessor of the appellee, their costs by them expended in the prosecution of their appeal aforesaid here. And it is ordered that the jurors’ verdict be set aside; that a new trial be had between the parties; and that the district court, upon such trial, do admit the evidence aforesaid to be entered into; but none of the other matters offered by the defendants in evidence on the former trial and rejected by the court.”  