
    *Hite & al. v. Fairfax & al.
    [May, 1786.]
    1. Northern Neck — Grants — Validity. — The several grants, by the crown to the proprietors of the Northern Neck were valid.
    2. Same — Same—Subject to Confirmation by Lord Fair» fax.- — By the convention, between lord Fairfax and the crown, in 1745, all patents and actual surveys made, within the proprietary, according to the terms and conditions of any orders of council, were to be confirmed by lord Fairfax.
    3. Same — Same—Quit=Rents.—Consequently, the heir or devisee, or the register, was to issue patents to the appellants for all the lands actually surveyed by them, under their orders of council, before Christmas 1735; but the appellants were to account to the representatives of lord Fairfax, for quit-rents, composition and office fees.
    On the 8th of May, 1669, king Charles II by letters patent reciting 1. That he had, therefore, granted to lord Hopton and others “all that entire tract of land situate within the heads of the rivers Rappahannock and Quiriough, or Patowmack river, the courses of the said rivers, as they are commonly called and known bj the inhabitants and descriptions of those parts, and Chesapeake bay, together with the rivers themselves, and all the islands within the banks of those rivers. ” 2. That the said patent having been surrendered, in order that he might re-grant the lands with alterations, he accordingly granted to the earl of St. Albans and others, the said tract of land, with a stipulation “to enlarge and confirm the said letters patent, by granting to them and their heirs, other new ones, with such favourable concessions and grants, as might supply any defects therein contained.” And king James II. in the fourth year of his reign, by letters patent, reciting the two above mentioned patents, and that the said patentees had sold their right in the premises to lord Culpeper, granted the said tract of land and premises to the said lord Culpeper, his heirs and assigns forever. 4 Hen. Stat. S14. By these patents,, the proprietors were invested with various privileges; and, among others, to hold a court in nature of a court baron; which lord Fairfax, to whom the estate descended as heir to lord *Culpeper, exercised : but it does not appear, that he ever abused it.
    By the above mentioned patents, the proprietors established agents, within the said granted territory, to transact their affairs there; and Robert Carter was one of those agents.
    In the year 1706, the crown issued a patent for a tract of land lying within a part of the said proprietary ; against which the said Robert Carter, as agent for the proprietor, protested; and, thereupon, an order of council, in that year, was made; by which, (atter stating, that, on the presentment of a patent for signature for lands in the Northern Neck, Robert Carter, agent for the proprietor, objected to it.) It was ordered, that neither the crown, nor the proprietor should issue such patents, and that mutual commissioners should view the two rivers : Who reported that they appeared to be of equal magnitude. And three other persons, (styling themselves Wood’s trustees, ) by request of Robert Carter, certified the same thing.
    What proceedings took place, between that period and the year 1720, does not appear: But, in that year, an act of assembly passed, creating the county of Spotsyl-vania; which reciting “that the frontiers towards the high mountains are exposed to danger from the Indians, and the late settlements of the French to the westward of the said mountains,” erected the county, and declared its boundaries in the following words, “Spotsylvania county bounds upon Snow creek up to the mill, thence by a south-west line to the river North Anna, thence up the said river as far as convenient, and thence by a line to be run over the high mountains to the river on the north-west side thereof, so as to include the Northern passage through the said mountains, thence down the said river until it comes against the head of Rappa-hanock, thence by a line to the head of Rappabanock, thence by a line to the head of Rappahanock river ; and down that river to the month of Snow creek.” 4 Hen. Stat. 77. And by subsequent sections of the statute, the inhabitants were made free of public levies for ten years; *the whole county erected into a parish; and “because foreign protestants might not understand English readily, if any such should entertain a minister of their own, they and their tithe-ables should be free for ten years.” 4 Hen. Stat. 78.
    Robert Carter took two grants, from the crown, for lands in that region, insisting, at the same time, however, that they were within the proprietor’s boundary: And, af-terwards, in 1726, having become commander in chief of the colony, he issued grants, in the name of the king, to others, for lands, in that quarter; but entered caveats, against them, as agent for the proprietor.
    On the 17th of June, 1730, John Vanmeter obtained an order of council for “10,000 acres of land, lying in the fork of Shenandoah river, including the places called by the names of Cedar Lick and Stony-hill, and running up, between the branches of the said river, to complete the quantity; and 20,000 acres, not already taken up, as soon as he shall bring, or have ready twenty families, to settle on the said last mentioned land.” And on the same day, Isaac Vanmeter obtained a like order of council, for 10,000 acres->of land “on the west side of the great mountains,” upon the same condition as that annexed to the said 20,000 acres. These claims the Van-meters sold to Joist Hite, on the ISth of August, 1731.
    On the 21st of October, 1731, Joist Hite and Robert M’Koy obtained an ' order of council, for 100,000 acres of land, on the west side of the mountains, on the like condition of settling 100 families thereon, within two years: and, in that year, Joist Hite removed to, and settled on that land; parts of which, he and M’Koy sold to various persons; but their progress was interrupted by William Russel, who obtained grants for large quantities of land, some of which interfered with that of Hite and M’Koy: who, in consequence thereof, obtained time, occasionally, of the governour and council, for complying with the terms of their said order in council, until October 1732, when an order of ^the board was made, enlarging the period for compliance, to Christmas 1733.
    In the year 1733, lord Fairfax, who had become proprietor, obtained from the king, instructions to the governour and council, to appoint commissioners to settle the dispute about the boundaries of the proprietorship ; and to issue no more patents, for lands lying within the contested district, until the dispute was ended. But it does not appear, that these instructions were communicated to the governour and council, until the year 1736.
    On the 12th of June, 1734, an order of council was made, which, stating that Joist Hite had made due proof; that he had complied with the terms of the grants made to the two Vanmeters; and had settled, on those lands, more than the requisite number of families, directed that patents should issue to him and his assignees, upon the surveys then returned into the secretary’s office.
    In the year 1734, lord Fairfax entered a general caveat against all orders of council, deeds, patents, entries, &c. issuing from the crown office for lands lying within his proprietary, until the dispute was settled.
    By the 1st of January, 1736, Hite and M’Koy had procured fifty-four families under their order of council, for the 100,000 acres of land, and made some surveys: which were returned into the secretary’s office within due time, and paid the fees; but, before patents could be obtained thereon, lord Fairfax entered caveats against them.
    In August 1736, an act of assembly passed, reciting the aforesaid patents of Charles II. and James II. to the proprietors of the Northern Neck; that lord Fairfax had “now become sole proprietor of the said territory;” and that divers quantities of land had been granted, “to adventurers and planters, within the said territory, in fee simple, by the agents and attorneys of the said lord Fairfax, and his predecessors;” but that “of late, after long possessions, and great and valuable improvements made, •upon the said lands, by such grantees,” questions were likely “to arise, between *them and the said proprietor, touching the validity of such grants, for prevention thereof, and for settling peace between his lordship and his said tenants,” all the said grants were confirmed. 4 Hen. Stat. S14.
    In the year 1736, lord Fairfax, arrived in ■this country, with the royal instructions of 1733, before alluded to; and, in the course of that and the succeeding year, a survey, in pursuance of them, was made of the Northern Neck; by which it appeared, that great part of the contested lands lay within the boundaries of the proprietary; which gave rise to counter petitions before the governour and council; who confirmed the survey, on the terms, that lord Fairfax should establish all the grants, which had been made by the crown ; and an order, to that effect, was made, by the board, on the 21st of December, 1738. In consequence of which, his lordship promised deeds to the grantees under the crown, and particularly to Hite and his associates, (who threatened, otherwise, to abandon their settlements and remove to other parts of the country,) as soon as his office, for purposes of that kind should be opened: and thereupon, Hite and his associates withdrew their said twenty-seven surveys and fees, from the secretary’s office, in order to lodge them with the proprietor for patents; and the surveys were accordingly lodged there, the claimants going on with their improvements on the lands.
    In the year 1748, an act of assembly passed, for confirming the grants of the crown within the Northern Neck, as then established: which reciting, that, in the late dispute touching the limits of the aforesaid letters patent to the proprietors, it had “been adjudged and determined, by his present majestj', in council, that the said letters patent do include all that tract or territory of land, between the rivers Pa-towmack and Rappahanock, and the line now marked from the head spring of the said river Patowmack to the head spring of Rappahanock, commonly called Conway, in which said tract, or territory, of land, as is before described, man3r adventurers and planters have talcen up great quantities of *land, and obtained grants and patents thereof from the crown, under seal of the colony: and whereas the said Thomas lord Fairfax hath consented, before the king, in council, that the several grants and patents made by the crown, of the lands included in the boundary aforesaid, should be confirmed to the several grantees, their heirs and assigns, to be held nevertheless of the said lord Fairfax, under the like rents, services, profits, and emoluments, as should be paid, done and arise, by and from the said grants made by the crown,” enacted, “that all grants and patents whatsoever, under the seal of this colony, for lands situate and lying within the limits and boundaries of the letters patent granted to the ancestors of the said lord Fairfax, as the same are now settled and determined, heretofore made and granted by the crown, shall be held, deemed and taken, to be valid and effectual; and the adventurers and planters to whom the same were granted, their heirs and assigns, shall forever hereafter peaceably and quietly have, hold and enjoy, the said granted premises, respectively, according to such granted estates, under the rents and services in the said grants reserved, to be paid and performed to the said Thomas lord Fairfax, his heirs and assigns forever, any misrecital or defect in the said grants, notwithstanding. 6 Hen. Stat. 198.
    Hord Fairfax, after his office was opened, refused to make grants to Hite and his associates; and conveyed part of the lands, contained in their surveys, to sundry persons: In consequence of which, Hite and his associates, on the 10th of October, 1749, filed a bill in chancery, in the then general court, against lord Fairfax, and those claiming under him, setting forth the circumstances aforesaid; praying that lord Fairfax might be decreed to make deeds to the plaintiffs for the surveyed lands; and that such of the defendants as held portions thereof, under deeds from him, might respectively also convey to the plaintiffs.
    The answer of lord Fairfax states, that, in 1705, the heads of the springs of Rappahanock and Patowmack not *being well ascertained, the crown and his father appointed commissioners to explore the north and so th branches of the Rappahanock, who repor :ed that the branches were of equal magnitui e; but the dispute being revived, in 1733, he prevailed with the king, that other commissioners might be appointed; and that, in the mean time, no more grants should be made of the disputed territory. That, in the year 1738, commissioners were accordingly appointed; but, differing in opinion, they made separate reports; which, in 1738, were referred to the committee of the council for plantation affairs, upon whose report, the king on the 11th of April, 1745, determined that all the lands, contained, between the head springs of Pa-towmack and the south branch of the Rappahanock, and the mouths of the two rivers, belonged to the defendant. That he presumes the Vanmeters, at the period of obtaining their said orders of council, knew of his title, as he is informed, that they made a fruitless application, to his agent, for the same lands, before they applied to the governour and council. That the order for the 100,000 acres is void, 1. Because of the irregular shapes of the surveys under it. 2. Because the condition of making settlements upon the lands was not complied with. That the defendant, in 1734, had entered a general caveat, against all orders of council and patents from the crown office, for lauds within his proprietary; but government continued both until 1745; and he apprehends that all the 40,000 acres have been patented. That when Hite and his associates applied to him, after the caveat, respecting the lands, he told them that he should not endeavour to invalidate grants obtained before the caveat, nor to set aside regular entries and surveys; and that they need not be intimidated by his dispute with the crown ; for if he succeeded, and the people would rely upon him, he would not disturb them in the enjoyment of their lands; but would confirm all regular and lawful surveys, for the usual fees: Which assurance was disregarded by the plaintiffs; who, without relying on it, petitioned against him. That, after his determination of his *'dispute with the crown in the year 1745, he desired Hite to send, to his office, a list of his claims; and actually delayed the opening of his office for the county where they were situate, for nearly ten months, in order that they might come in ; but, he neglecting to do so, for a long time, and then sending a very imperfect list, the defendant opened his office in 1749, yet still, conformably to his promise, made to the lords of the committee of council for plantation affairs, he gave the preference to those claiming under the plaintiffs, only directing the surveys to be made according to law: an arrangement with which all other persons similarly situate were content. That this induced Hite to enter a caveat in 1749, against the warrants and surveys of the defendant in his office; and the 12th of July in that year, was appointed for a hearing of it, but Hite did not attend. That the defendant is willing to abide by his promise, and the king’s order in council in pursuance thereof; but apprehends that they only extend to deeds and patents prior to his caveat in 1735, the word grant not importing, nor the act of assembly including orders in council: Or, if it were otherwise, that the plaintiffs’ surveys are void, as well on account of their figure, as on account of their containing almost double the number of acres specified.
    The answers of Rogers, Langdon, Wright and Ewell set forth, that they had deeds from lord Fairfax, dated in 1750; and that they were encouraged, by Hite, to obtain them.
    The answers of the other defendants, state that they heard of the plaintiffs’ orders in council after lord Fairfax’s boundaries were fixed; and that they obtained patents from him in July 1749. That they have settled and improved their lands ; but have heard that the plaintiffs have not done so, agreeably to the orders of council, under which they claim; and that the word grant does not include orders of council.
    The depositions prove 1. The promise of lord Fairfax to Hite and his associates, as stated in the bill and answer. 2. The forms of proceeding in lord Fairfax’s office, as to *the entry, warrant to survey, return of the survey, and emanation of the patent upon payment of the composition and office fees; together with the mode of proceeding upon caveats filed in the office. 3. That no erasures were recollected in the book of surveys, hut that some appeared after it had been in the custody of Hite and others.
    The king’s order in council of the 11th of April, 1745, states the committee of the council for plantation affairs, to have reported, 1. That lord Fairfax’s petition set forth, “That the governour and council of Virginia had, from time to time, actually taken upon them to issue grants for several parcels of land, part of the petitioner’s said tract; and had actually run out surveys of several other parcels of land, though the same, as the petitioner apprehends, were clearly within the bounds of the lands so granted from the crown as aforesaid, under which the petitioner claims. The petitioner therefore prayed, that your majesty would be pleased to order a commission to issue for running out, making and ascertaining the bounds of the petitioner’s said tract, &c. 2. That the petitioner, the lord Fair-fax, hath appeared before this committee, and proposed and consented that all the grantees of lands under the crown within the boundaries aforementioned, shall quietly enjoy their lands, according to their respective grants; and likewise to do and consent to all such acts as shall be thought necessary by your majesty, to confirm and secure such grantees in the quiet possession of their said lands pursuant to’ their grants.” And the royal order, upon that report, directs, that the governour shall “not make any grants of lands within the said boundaries, nor molest or disturb the petitioner, in the quiet possession and enjoyment of the lands contained therein ; but the said lands to be subject to the grants made of any parts thereof by his majesty, or any of his royal predecessors, and so as the lord Fairfax do comply with his proposal mentioned in the foregoing report. ’ ’
    *On the 13th of October, 1769, the general court made the following interlocutory decree.
    This cause is dismissed as to the defendants Benjamin Boweden, &c. (thirteen in number,) the same being agreed between them and the plaintiffs; and thereupon the cause came on to be heard upon the bill, and the answers filed by the other defendants, the depositions taken and returned, an order of his late majesty in his privy council, dated at the court at St. James’s, the 11th day of April, 1745, divers orders of the governour and council of this colony, and sundry other papers produced and read as exhibits, and the arguments of the counsel on both sides. On consideration whereof, it is the opinion of the court, that the plaintiffs for themselves, and the assignees of the said Joist Hite and Robert M’Coy, deceased, are entitled to all the lands actually surveyed, under the several orders of the governour and council, in the bill mentioned, at any time before Christmas 1735, for which patents were not obtained from the crown before the said 11th day of April, 1745; that the said lord Fair-fax ought to execute deeds to the plaintiffs, and such assignees, for their respective parts of the said lands, under the usual reservation of quit rents, and on their paying the usual composition and fees of office, where his lordship hath not, since the commencement of this suit, conveyed such lands to other persons: and in case of such conveyance, then that the said other persons ought to convey the same respectively to the said plaintiffs and assignees, or shew sufficient cause to the contrary, withi-n six months. Therefore, it is decreed and ordered, that James Scott, Matthew Whiting, Francis Peyton, Samuel Clayton, jr., Thomas Marshall, James Pendleton, John Carter and William Grant, gentlemen, or any three or more of them, do examine and state a memorial of all such surveys claimed by the plaintiffs and said assignees, distinguishing therein, who, at present, hold the lands in each survey; and stating the nature of their claim, and title, whether the same be under the said Hite and M’Coy, or by conveyance from *the said lord Fairfax; and that his lordship deliver to the commissioners aforesaid, all the original surveys lodged in his office by Robert Green, gent., deceased: and that the said commissioners return the said memorial, and the said original surveys to the court, in, order to a final decree.
    Under the foregoing decretal order, Thomas Marshall and others, reported twenty-seven years, containing 37,834 acres : and that lord Fairfax produced a list of patents from the secretary’s office, for 42,778 acres, alleging that they shewed that the Vanmeter orders in council were satisfied, with an excess; but that the plaintiffs alleged, that some of them were for lands not within the Vanmeter orders: of which however they gave no proof.
    There are several other exhibits ; but none of them varying the case materially from what is above stated.
    Upon the coming in of the report of the commissioners, the general court, on the 15th of October, Í771, made the following final decree:
    “This cause came on again to be heard, upon the bill and answers, 'the depositions taken and returned, an order of his late majesty in his privy council, dated at the court at Saint James’s, the 11th day of April, 1745, divers orders of the governour and council of this colony, sundry other papers produced and read as exhibits, the memorial of the commissioners appointed by this court, and the arguments of the counsel on both sides. On consideration whereof, it is the opinion of the court, that under lord Fairfax’s agreement with the crown, the plaintiffs and those claiming under Joist Hite, deceased, are entitled to the 30,000 acres of land mentioned in the order of council of the 17th day of June, 1730, to John Vanmeter, and to the 10,000 acres mentioned in the order of council of the same date, to Isaac Vanmeter, for which said tracts of land it appears that patents have been already obtained from the crown, and confirmed by act of the general assembly of this colony: and that the plaintiffs and those claiming under *the said Joist Hite and Robert M’Coy, are also entitled to 54,000 acres of land, part of the 100,000 acres mentioned in the order of council of the 21st of October, 1731, to the said Robert and Joist, fifty-four families having been settled thereon according to the terms of the said order. That the persons who contracted with the said Hite and M’Coy or their representatives, for part of the said 54,000 acres," and have since obtained deeds from lord Fairfax, be quieted in their possession, and pay to the plaintiffs, entitled thereto, the purchase money still due, with the interest thereon, and deliver up the bonds for conveyances to be made them to be cancelled; and that the persons who have obtained deeds from lord Fairfax, without making such contracts for other parts of the said 54,000 acres, ought also to be quieted in their possession, and to pay to the plaintiffs, or such other persons as are entitled thereto, after the rate of three pounds per hundred acres of the lands held under such deeds, with legal interest thereon, from the times they respectively became possessed of such lands. Therefore, it is decreed and ordered, that David Ashby, &c., who are in possession of the lands under contracts with the plaintiffs, or their ancestors, and have paid the-purchase money, and since obtained deeds of confirmation from lord Fairfax, be at peace, and deliver up to the plaintiffs the bonds or contracts to be cancelled, from which the plaintiffs are discharged; and that the plaintiffs pay to the said John Briscow, &c. who are possessed of their land under contracts with the plaintiffs or their ancestors, and have obtained deeds of confirmation from lord Fairfax, but have not paid the whole purchase money, be quieted in their respective possessions, and severally pay to the plaintiffs, or those claiming under them, the balance of such purchase money', with legal interest thereon, from the times the same was agreed to be paid, and in like manner deliver up bonds or contracts to be cancelled. That Abraham Vanmeter, &c. who have obtained deeds from lord Fairfax, but had not made any contracts with the plaintiffs *or their ancestors, for the same, be also quieted in their respective possessions, upon their severally paying to the plaintiffs, or those entitled thereto, at the rate of three pounds per hundred acres, for so much land as they respectively hold within any of the surveys mentioned in the said memorial, together with legal interest for the same, from the times they respectively became possessed of the said lands. That, for such lands within the said surveys, as have not been conveyed to any person by lord Fairfax, nor agreed to be sold by the plaintiffs or their ancestors to any other person, nor are possessed by any other persons, who, or those under whom they claim, became possessed thereof at any time before the bringing of this suit, to wit, the last day of July, 1749, lord Fairfax execute deeds to the plaintiffs in fee simple, reserving the usual quit-rents upon their pa3ing the fees of office, but no composition money; and that lord Fairfax execute the like conveyances to the assignees of the plaintiffs or their ancestors, for such of the said lands as have been sold or contracted for by them, and to the persons now in possession, who, or those under whom they claim the land, became possessed thereof, at any time before the commencement of this suit, where he hath not already conveyed the same to any other person, and that those to whom such conveyances are to be made, shall respectively pay to the plaintiffs, or those entitled thereto, for the lands so conveyed, according to their several contracts; but where no such contracts shall appear, then, at the rate of three pounds per hundred acres, with interest thereon from the times of their contracts, or becoming possessed of such land, reserving to either party the liberty of applying to this court to settle and adjust any disputes which may arise in the execution of this part of this decree, which cannot be adjusted between themselves: That perpetual injunctions be granted to stay the executions of the judgments at law recovered by William EJwings, &c. against Joist Hite, mentioned in the proceedings in this cause; and that the costs of this suit, including an allowance of twenty '^shillings per day to each of the commissioners, amounting to three hundred and fourteen pounds, together with the other expenses attending the execution of the former decretal order made in October 1769, be paid and borne, one moiety by the plaintiffs, and the other moiety by the defendants, such excepted as are mentioned to be al; peace in the first part of this decree: and that so much of the said decretal order as is contrary to this decree be set aside.”
    From which decree lord Fairfax appealed to the king in council, but never prosecuted it; and the plaintiffs appealed from such parts of the said decree as confirmed the grants, made by lord Fairfax since the commencement of this suit; or which are directed to be made by him to any persons not claiming under the said plaintiffs, or their ancestors. But whether the same was prosecuted or not, does not appear.
    On the 29th of August, 1780, the plaintiffs petitioned the court of appeals to permit them to appeal to that court; which was allowed. And notice thereof was served upon lord Fairfax; who was a citizen of Virginia, and continued in this country after the revolution commenced, until his death in 1781: By his will, he devised all his lands in the Northern Neck, to Denny Martin Fairfax; who was a British subject, residing in that country; and born prior to the year 1776.
    By an act of assembly passed in 1782, it was provided as follows, “and whereas no provision is made by this act, or by the act for equalizing the land tax, to credit the citizens in the Northern Neck for so much of the land tax as their respective quit-rents may amount to: And whereas,- since the death of the late proprietor of the Northern Neck, there is reason to suppose that the said proprietorship hath descended upon alien enemies: Be it therefore enacted, That persons holding land in the Northern Neck, shall retain sequestered, in their hands, all quit-rents which are now due until the right of descent shall be more fully ascertained, and the general assembly shall make final provision thereon.” 11 Hen. Stat. 128.
    *By another act of the same year, the following provision was made, “And whereas the death of the right hon-ourable Thomas lord Fairfax, may occasion great inconvenience to those who may incline to make entries for vacant lands in the Northern Neck: Be it therefore enacted, That all entries made with the surveyors of the counties within the Northern Neck, and returned to the office formerly kept by the said Thomas lord Fairfax, shall be held, deemed and taken as good and valid in law, as those heretofore made under the direction of the said Thomas lord Fairfax, until some mode shall be taken up and adopted by the general assembly, concerning the territory of the Northern Neck.” 11 Hen. Stat. 160.
    On the 21st of February, 1785, the appellants caused a notice in the following words, to be served upon Doct. Denny Martin Fairfax, then in Virginia, formerly Martin Bryant Fairfax.
    “To
    “Thomas Bryan Martin and Gabriel Jones, esqrs. surviving executors of Thomas lord Fairfax deceased, and attorneys for Denny Fairfax, formerly Martin Bryan Fairfax, one of the attornies for Robert lord Fairfax and
    ‘ ‘Be pleased to take notice, that we have lodged with the clerk of the court of appeals a transcript of the record in appeals Hite &c. against Fairfax and others, from a decree of the late general court, to the king of Great Britain in his privy council, which was neither affirmed, reversed or dismissed, and that we shall press for a trial, as soon as the law will permit. We are gentlemen your humble servants Isaac Hite and John Green agents for the company.”
    This notice was filed among the papers in the cause: but there does not appear to have been any scire facias to revive the cause after the death of lord Fairfax, served upon his heir or devisee; for, although in October 1782, the following entry was made in the order book, to wit, 1 ‘The defendant Thomas lord Fairfax being dead, on the motion of the appellants, by their counsel, a subpoena scire facias is ^awarded them, to revive this suit and the proceedings therein, against the executors or administrators and heir at law, or other legal representative of the said Thomas lord Fairfax, returnable here &c.,” it does not appear that any actual scire facias was ever taken out, or served upon the heir or devisee of lord Fairfax; or that any appearance was ever entered for them, or either of them. So far from it, the caption of all the entries in the suit upon the order book from the 4th of May, 1786, stood, (after naming4 the appellants,) “against the executors and heir at law, or other legal representative of Thomas lord Fairfax deceased, and others.”
    Randolph, attorney general, for the appellants.
    The circumstances of the case are all in favour of the appellants. For it may well be doubted, whether. Charles II. mimicking majesty, could control the charter to the colony in 1609. But let that be as it may, the grant of the Northern Neck was made at a time when the king was ignorant of its extent, as not even the falls of the Patowmack and Rappahanock were then settled; and the. knowledge of the inhabitants of the adjacent country (the standard by which the boundarjr, according to the patent, was to be ascertained,) extended no further than those falls. Therefore, after the discovery of the fork of the Rappahanock, and the consequent doubt as to the branch which was-to be the boundary of the proprietorship, the crown went on, notwithstanding the report of the commissioners appointed to view the rivers, and the protest of Robert Carter, the agent of the proprietor, to grant lands in that region ; and encouraged settlements there, in order to form a barrier against the French and Indians.
    Under this state of things, the orders of council for the 40,000 acres were obtained, and, in event,. finally carried into grant: and that, for the 100,000 acres, was fulfilled as far as the actual settlement of fifty-four f amilies ;■ and would have been fully complied with, had not the interruptions, *first from Russel, and then from lord Fairfax, prevented it: who, in 1736, produced the ex parte, and, ’til then, unknown order from the king, to the gov-ernour and council to appoint commissioners to settle the boundary line; and forbidding them, in the meantime, to issue any more grants: which, upon the principles decided in the Greenbrier and Boyal company cases, was a sufficient justification of the delay.
    But, waving all views of that kind, the promise of lord Fairfax to Hite, is conclusive ; for the latter and his associates were thereby induced to remain, and continue their settlements, to the great advantage of the proprietor: which, as it involved loss on one side, and advantage on the other, is a sufficient consideration for a decree for a conveyance: And, if any thing further were wanting to confirm it, lord Fairfax’s undertaking before the governour and council, on the 21st of December, 1738, when the survey of his boundary was confirmed by the board; and that, before the same board in 1748, when the act of assembly of that period was passed, are decisive ; and not to be defeated by the attempts of lord Fairfax to appropriate part of the appellants’ lands to the use of himself and family, as it appears by the commissioners’ report, he did.
    It is in vain for lord Fairfax to urge, that the plaintiffs must have been apprized of his title. Facts refute the position; for public opinion existed to the contrary until 1737, as appears by the report of the royal commissioners; and the government constantly acted in conformity thereto, until that period. Besides, it continued a doubt, whether the grane to lord Culpeper included these lands, until the year 1745, when the convention with the crown wa-s made; which, in fact, is the best foundation of lord Fairfax’s title, confirmed as it is by the act of 1748.
    Of as little weight is the objection, that the word grant did not extend to orders in council. For the obvious meaning of it was, that every, equitable as well as legal right, either under the crown or lord Fairfax, was to be preserved. *It was a term which had been long applied, by the governour .and council, to .such orders ; and was, in fact, the customary language of the country. No man, at that day, ever dreamt that a seal was necessary to constitute a grant; but every body believed that an order of council was synonymous to it: .and what gives greater force to the argument, and shews that the term was not confined to sealed instruments, is, that the report of the committee of plantation affairs, to the king in council, on the 11th of April, 1745, states, that the petition of lord Fairfax set forth, that the governour and council had issued grants for several parcels of his lands;. and had run out surveys for several other parcels, which being necessarily founded upon orders of council, shews that both species of grant were in contemplation; the one where the grant had been perfected by a patent, the other where it remained to be fully completed. Besides, the joint use of both terms in the act of assembly, supports the interpretation. For if grant and patent meant the same thing, why should both be used; and used so. often too, and throughout the act? No carelessness can account for it; but it must have been designed to cover every species of grant by the crown. Besides, lord Fairfax’s answer admits that he was bound to confirm, regular surveys; and he submitted to the" patents by government, upon those made under the Vanmeter orders; which puts an end to the question.
    But more idle still is the objection, that lord Fairfax, by his promise to Hite, did not mean to confirm equitable claims, and irregular surveys. For the whole testimony proves that the promise was absolute and without condition; and it was not in his power to qualify it by a mental reservation, if- indeed he had one, without disclosing it at the time; especially as, if disclosed, it would probably have been received with disdain, depopulated the country, and defeated all his prospects of quit-rents and of increased value to his property.
    The exception to the regularity of the surveys, as to the length and breadth, is not tenable. For there were two ways, at that time, of acquiring waste lands, the one under *the act of 1705, ch. 21, (3 Hen. Stat. 305,) founded upon the receiver general’s certificate for composition money; the other under orders of council, upon stipulated terms. And, under either, it would not be competent to lord Fairfax to object, 1. Because, if the right had accrued upon a common taking up under the act of 1705, it would have been a question between the locator and the governour and council only; who, by the act of 1732, (4 Hen. Stat. 3S2,) had the sole power of deciding on it; and, if they were satisfied, lord Fairfax had no right to object, as he was bound by his agreement and the act of assembly founded on it. 2. Because if it is taken, as it must be, as a grant founded on an order of council, then it was not subject to the ordinary law prescribing rules upon surveys founded on the receiver general’s certificate. For, in that view, it was an extraordinary grant, like that to the proprietor, and those to the Greenbrier and Loyal companies, independent of all the existing statutes: and therefore not affected by them. Hence the rules of the act of assembly, relative to surveys upon the receiver general’s certificate, are not applicable. For the grantee was considered as having a right to the whole quantity in the stipulated region, so that he might lay out the parcels in what form he pleased: and therefore the practice was to disregard the proportions mentioned in the act of assembly upon the subject of the receiver general’s certificates, and to make the survey as the party wished. Which satisfies even lord Fairfax’s distinction, as the surveys are made according to custom; which he admits to be the true criterion.
    That the whole number of settlers were not procured, which the order of council required, is not material; for, to the extent actually obtained, the plaintiffs, upon the principles of ci pres and part performance, are clearly entitled. Things of that kind are in their nature progressive, and subdivision is necessarily incident to such 'an order. It would have been monstrous, and would have totally prevented settlements, under such orders, if all who had taken allotments, *might have been deprived of their purchases, by the failure of the proprietor of the order of council, to procure a few other adventurers. No man would have gone there, under any order requiring one hundred families, if ninety-nine, after all the difficulties and dangers they had encountered, might have been dispossessed of the fruits of all their labours and expense, by the failure of the grantee to procure the hundreth settler: and the history of the colony affords no such intolerable tyranny. The true principle in such cases was, that those who settled under the order of council and complied with the general requisitions of the law, should be protected. It was so in respect of non-settlement according to the terms of actual patents; for the patentee was allowed to retain as much as he had actually settled by the act of 1713, ch. 3. (Hen. Stat. 40) ; and the analogy is striking, as it shews that distributive construction, upon subjects of this kind, was kept constantly in mind, by all the departments of government. These arguments, powerful in every point of view, are doubly so, when the difficulties under which the plaintiffs in the present case (arising in a great measure from the acts of lord Fairfax and his adherents) laboured, are considered.
    The erasures, in the surveyor’s book, are unimportant; for, whether they were rightly or wrongly made, the plaintiffs had no hand in making them; and it is a settled rule, that if a deed be erased, or the seal broken, without the privity of the grantee, he is not affected.
    Another question remains to be considered, namely, by whom the patents should be issued whether by the heir or devisee of lord Fairfax, or by the register of the commonwealth? But of that there can, in fact, be no doubt, 1. Because it was obviously the intention of the parties to the convention, that the1 crown which had granted the orders of council should make the patents, which lord Fairfax engage to confirm upon their emanation. For that construction was necessary, as he ' was to confirm and not to convey, and consequently the patent was necessarily precedent. 2. ^'Because the decree of the general court, in 1769, had directed the surveys to be delivered by lord Fairfax to the plaintiffs: the plain object of which was, that the crown might make the patents, according to the cotemporaneous construction of the agreement, and the act of assembly founded on it. 3. Because the agreement operated as a relinquishment of the lands contained within the surveys to the crown, for the use of the appellants.
    There is still a point which claims some attention, namely, that, as both decrees of the general court admit that Hite and M’Koy, and those claiming under them, were entitled to 54,000 acres; and, as they were prevented by lord Fairfax from surveying more than 37,834 acres, whether his estate, deducting the excess in the Van-meter patents, ought not to make compensation, for the loss sustained by the obstruction? It does not indeed clearly appear what the extent of the obstruction was ; but, if upon enquiry, it should be ascertained, satisfaction ought to be made.
    Baker, for such of the appellees as were residents of Virginia. It is idle to talk of the inability of the crown to make the grants to the proprietors of the Northern Neck, after the charter of 1609: because that charter was repealed by the judgment of the king’s bench in 1623; and, from that period, Virginia was always considered, both in England and this country, as a royal colony; and all grants for lands, emanated from the king: so that, if the doubt mentioned by the attorney general, actually existed, it would destroy every title in the commonwealth. But he does not appear to have adverted to another consequence of his doctrine; for, if that were true, the result would be, that his own clients would, necessarily, be defeated ; because the title would then be in the grantees, under the charter of 1609; and therefore his clients could have none.
    But to come to the real merits of the case.
    The appellants were trespassers, with notice of the defendants’ rights: For the grant of the proprietorship had *long been matter of history; and the rights of the patentees had been evinced by actual occupancy, through their agents; who, in the names of the respective proprietors, had made many grants and establishments, which were sufficient to call for enquiry by adventurers; who were not to be justified by the unauthorized acts of the colonial government; which had no power to interfere with the private rights of the proprietors, long before obtained; and violated by the public authorities here, without the knowledge of the crown, and contrary to its wishes. The appellants, therefore, had no excuse; for, professing to act under the act of assembly, they should have confined themselves to, waste and ungranted lands; and government, of course, expected every application to be so limited; for those were the terms of the orders of council, and it was the duty of locators to conform to it: who, consequently, ought to have made all necessary enquiries; and whenever they neglected it, surveyed appropriated lands, and obtained grants,'thej were guilty of such misrepresentation, as would avoid the patents; and to refusal of them, when the misrepresentation was made known, b3 caveat, or otherwise. Of course no injury was done, either by the government, or lord Fairfax, to the appellants; who acted, with full knowledge, that they were trespassers: and cannot now complain that they were dispossessed; for volenti non fit injuria. There was, in fact, no difficulty in ascertaining the proprietor’s boundary, as was proved when the place came to be explored; and that was certain which could be made so: it was therefore the duty of the appellants to have made the explorement, if they wished to locate in that region. Of course lord Fairfax yielded much, when, for the sake of peace, he agreed to confirm the claims of those who had obtained patents; and it is unreasonable to suppose, that he was bound, or that government expected him to be bound, to regard the pretensions of every lawless invader,, who had trespassed upon his rights. The crown did not stipulate for this; and, for an obvious reason, namely, that it had received no benefit *from the intruder, and had done nothing to induce his aggressions, which were licentious altogether, and a total departure from the orders of council confining them to waste lands, and such, wherein, nobody had a better right. This view of the subject is, of itself, a sufficient answer to all the excuses set up by the appellants on the score of delay; and, particularly, as respected lord Fairfax, for resistance, to injustice, was not an impediment, either in a legal, or a moral, sense.
    The promise of lord Fairfax to Hite, could not, obviously, have extended further, than to such surveys as had been regular, as to length and breadth, according to the usage in the proprietary, and the act of assembly; because his lordship was not acquainted with them; nor had he ever seen them, or the alleged settlements, under them: and it would be preposterpus to suppose, that he meant to confirm all the licentious abuses of the orders of council, .intended to be predicated of the act of assembly requiring length and breadth, as a necessary policy, in order to prevent injustice, like that attempted by the appellants, of grasping all the slips of good land, and leaving those that were barren, and such as nobody would take up; thereby perpetuating deserts, and leaving the country, forever, unsettled. This conduct, far from being an advantage, as the complainants pretend, was, in fact, an injury in the present case, both to the public, and the proprietor; to the first, because the main policy of government was to increase general population, and improve the colony, which was sure to be defeated by monopolies of that kind: to the second, because, if the surveys were to be established, and part performance of the orders of council deemed sufficient, it would leave the proprietor none but the barren spots; and the appellants will have affected with regard to both, that, indirectly, which they could not have done, directly. But whether the offer extended to all surveys indiscriminately, or to those that were regular only, is immaterial; for, in either case, it was rejected by the appellants, who sought *relief, against it, from the law; and therefore cannot now resort to it; but must rely upon tfaeir original pretensions, which, we have seen, were all futile, and founded in wrong.
    The word grant in the convention of 1745, and the act of assembly made in conformity to it, did not extend to the case of the appellants, but was confined to actual grants, under seal. For that is the proper and legal meaning of the terms grant, which always implies* a seal; and the convention and act of assembly stipulate for grants and patents only, but with an express declaration that they shall be such as are under seal. Nor can any equity be derived, to the appellants, from the word grant wrested to a more extended signification : For there can be no equity in favour of an illegal and iniquitous pretension, which government would not have indulged, and therefore cannot be supposed to have stipulated for. This argument is not op-punged bj the orders of council: for these, as before observed, instead of authorizing unjust invasion of private property, forbad it, and confined the appellants to waste and unappropriated lands. Besides, there has been a failure to perform the conditions of the orders of council, in another respect: for the requisite number of settlers was never obtained; and that defeats the claim of the appellants under any point of view. For a partial performance was not sufficient, as the orders could not be so understood, either from the terms, or the reason of the thing: Not the first; because the words are directly otherwise: not the second ; because it would have enabled men to have engrossed large bodies of land, without settlement, and kept off others, who would have taken them up, and settled the country, agreeably to the wishes of government and the policy of the law; and because, too, a condition, which is to confer a right, must be performed, or the right never accrues.
    There is no analogy between the grant to the proprietors of the Northern Neck, and those claiming under the colonial orders of council. For the first was a great political object, emanating from the king, immediately, and conferring *unusual privileges: whereas the latter was only one mode of obtaining orders of survey ; and neither did, nor was meant to overreach the ordinary statute law of the country; and consequently, as to these, all the provisions and policy of the acts of assembly were to be observed.
    There is no ground for an enquiry into the alleged obstruction to surveys; for there is no proof of any. The filing of the caveat by the proprietor’s agents, was none; because if they had had right, the caveat would have been unavailing: and, as lord Fairfax did not arrive in Virginia, until the year 1736, he could have offered no personal interruption; because the appellants were bound to have fulfilled their orders of council, by Christmas 1735, or not at all.
    As to the mode of the patents, if they were to be granted, the forms would be manifestly immaterial to the heir or devisee of lord Fairfax ; for, if the plaintiffs be entitled to the lands contained in their surveys, it can be of no consequence whether he, as the heir or devisee of lord Fairfax, or the register, under the agreement contained in the convention of 1745, is to issue the grant.
    John Taylor for the appellants.
    King Charles II. while a fugitive, made the grant of the proprietary, and James the second, in the fourth year of his reign, but after he had, in fact, ceased to reign, confirmed it. A question, therefore, may fairly arise, whether the grants made under such circumstances, were obligatory upon the crown? And it is, accordingly submitted to the judgment of the court.
    The next enquiry is, whether lord Fair-fax’s heir or devisee is not bound to make a title to the appellants for the lands contained within their surveys? We contend that he is: for his lordship’s premise to Hite, was express, that he would confirm their titles, if they would remain, and not abandon their settlements. They did remain, and continued their improvements; which was a sufficient consideration to support the as-sumpsit: and, consequently, as the surveys are *ascertained by the report of the commissioners, equity will enforce them against the representatives of lord Fairfax.
    But independent of the express promise to Hite, the compromise with the crown established them. For the representation of the committee for plantation affairs, to the king, in 1745, sets forth, in the clearest terms, that lord Fairfax agreed to confirm the rights of those who had claims upon the crown, for lands within the proprietary: And, if he afterwards formed combinations to elude his promise, it will avail neither him nor his representatives; but the court will consider the title as bound, and will enforce it now, by compelling a conveyance to the appellants of all the lands which had been actually surveyed by them prior to the year 1736.
    There was every inducement for lord Fairfax to enter into the compromise with the crown. For the extent of his boundaries was strenuously contested by the government here: And, either the falls of the Rappahanock must have been the boundary, or the king would have been deceived in his grant; and either was fatal to the cause of the proprietor, and was much to be dreaded by him. For the report of the king’s commissioners gave great probability to the limits claimed by the crown; because, the rivers being explored in vessels when the falls interrupted the navigation, they naturally supposed that they were at the head of the rivers which terminated the limits of the proprietor’s grant. This gave rise to the notion that the rapids were a branch of the Rappahanock; and brought the rights of lord Fairfax into hazard : who was therefore deeply interested in ending the controversy by a compromise. This he obtained by the convention with the crown ; and that convention was ratified by the legislature.
    Therefore, it is fair to say, that the convention of 1745, and the act of 1748, made in conformity to it, perfected the title of lord Fairfax. But then, all that was stipulated for by those acts, ought to be sacredly performed; and the utmost scope should now be given by the court, to secure the title to claimants under the orders of council. For the object *of the crown, at that time, was to redress a mischief; and the convention, and the act of assembly founded on it, ought to be so construed, as to advance the remedy and suppress the mischief, ^specially as the general caveat in 1734, had shut the door to government patents, while lord Fair-fax’s agents continued to issue them ; which entirely destroyed reciprocit; for his surveys were all carried into grant, while those under government were suspended: So that, upon his construction, he would have patented all the lands, and ousted the locators who depended upon surveys only. Struck with the manifest injustice of this, his own commissioners did not confine their recommendation for compensation, to patentees merely; but spoke generally and extended it to surveys also.
    The question then occurs, whether a clear right could exist without a patent? Which, in fact, was no question at all. For an equitable claim in foro conscientiae, is equal to a legal one; and a court of equity will respect it as much. Under that idea, the words of the convention of 1745, and the statute of 1748 affirming it, evidently related to surveys, as well as patents. For the words grant and patent ought to be construed distributively. Grant should be applied to orders of council and the surveys made under them. Patent to actual patents, under the seal of the colony.
    This construction receives aid from the word quit-rents; which shews that all acts under orders of council, calculated, in event, to produce quit-rents to the crown, were to be confirmed; and that, for such confirmation, lord Fairfax was to have the future quit-rents arising out of them, instead of the crown.
    The next question relates to the claimants under lord Fairfax of parcels of the surveyed lands. If those persons allege, that they are purchasers without notice, their defence cannot be supported; for the transactions between his lordship and the crown, were notorious; and particular information, might, at any time, have been had from the council office. It was, consequently, crassa negligentia, and their pretended ignorance ought not to be countenanced.
    *Upon the whole, the appellants are entitled to a conveyance of ail the surveyed lands, and the profits which have been received from them.
    But it is alleged, that, as the heir or devisee of lord Fairfax is not before the court, no decree can be made in the cause, until that impediment is removed. That difficulty, however, is completely obviated by the view -taken of it by the attorney general: for the agreement of lord Fairfax, substantially was, that the patents should be issued by the crown ; which puts an end to the controversy; and decides - that the register is the proper party to make the patent: But the estate of lord Fairfax ought still to be held liable for the profits, and liberal costs in all the courts — which were incurred by his perverseness and injustice.
    Marshall, for such of the tenants as were citizens of -Virginia. From a bare perusal of the papers in the cause, I should never have apprehended that it would be necessary to defend the title of lord Fairfax to the Northern Neck. The long and quiet possession of himself and his predecessors; the acquiescence of the country; the several grants of the crown, together with the various acts of assembly recognizing, and, in the most explicit terms,' admitting his right, seemed to have fixed it on a foundation, not only not to be shaken, but even not to be attempted to -be shaken. I had conceived, that it was not more certain, that there was such a tract of country as the Northern Neck, than that lord Fairfax was the proprietor of it. And if his title be really unimpeachable, to what purpose are his predecessors criminated, and the patents, they obtained, attacked? What object is to be effected by it? Not, surely, the destruction of the grant; for gentlemen cannot suppose, that a grant made, by the crown, to the ancestor for services rendered, or even for affection, can be invalidated, in the hands of the heir, because those services and affection are forgotten; or because the thing granted has, from causes which must have been foreseen, become more valuable, than when it *was given. And, if it could not be invalidated in the hands of the heir, much less can it be in the hands of a purchaser. Lord Fairfax either was, or was not, entitled to the territory: If he was, then it matters not whether the gentlemen themselves, or any others, would, or would not, have made the grant, or may now think proper to denounce it as a wise, or impolitic, measure; for still the title must prevail: If he was not entitled, then why was the present bill filed; or what can the court decree upon it? For if he had no title, he could convey none, and the court would never have directed him to make the attempt. In short, if the title was not in him, it must have been in the crown; and, from that quarter, relief must have been sought. The very filing of the bill, therefore, was an admission of the title, and the appellants, by prosecuting it, still continue to admit it.
    But, if it is not seriously to be denied, that lord Fairfax was rightful proprietor of the Northern Neck, with as little reason can it be contended, that the bounds of that territory were really more contracted, originally, than they are now admitted to be. It is impossible to accede to that reasoning, which says, that the expression in the grant, which confines it to the heads of the rivers, and the courses of the said rivers, as they are commonly called and known by the inhabitants and descriptions of those parts, (as the inhabitants did not then know where the heads actually were,) can restraint the grant to places known, by the inhabitants, not to be the heads of those rivers. Besides, the reference made to the knowledge of the inhabitants seems to be of the courses, rather than the heads of the rivers. The words “&c.,” bounded the grant absolutely by the heads of those rivers, wherever they might be, and where the rivers were known by their reputed courses. But it is sacrificing a great deal for certainty, to say, that where an extensive grant is made, the boundaries of which are not perfectly known, although they may easily be discovered, the grant shall be limited by- an object known certainly not to be the boundary designed, and which bears no analogy to it. The ^middle part of a line can never be its termination. Whether lord Fairfax’s grant extended, originally, bej^ond the forks of the rivers-or not, will no more admit of an argument,' than it ever could have admitted of a doubt. But whether it should be bounded by the north, or south fork of the Rappahanock, was a question involved in more uncertainty, and, about which, men might have had different opinions. It is, however, no longer a question; for it has been decided, and decided by that tribunal, which had the power of determining it. That decision did not create, or extend lord Fairfax’s right, but determined what the right originally was. The bounds of many patents, are doubtful; the extent of many titles uncertain; but when a decision is once made on them, it removes the doubt, and ascertains what the original boundaries were. If this be a principal universally acknowledged, what can destroy its application to the case before the court? It is said that the dispute, between the crown and lord Fairfax, was accommodated on terms, not decided on principles: But an appeal to the decision itself will refute the-argument, as may be seen in the answer of lord Fairfax, the report of the commissioners, and the sentence of the king and council.
    The gentlemen, however, argue, as if the north was really the main branch of the Rappahanock, although the king and council decided otherwise, and adduce in support of their assertion, the report of the king’s commissioners. But that report, the survey and map accompanying it; together with the report, the survey and map of the commissioners on the part of lord Fairfax, and perhaps other evidence, were all laid before the king and council; who, after solemn debate and mature deliberation, determined in favour of lord Fairfax. And can this court say, they determined against the weight of the testimonj'? Nay, more, if the point were now open for reconsideration, it cannot be said that a contrary judgment would be given. For if, on the one hand, the king’s commissioners report that the northern branch of the Rappa-hanock is the largest, the longest, and drains more land; those of lord Fairfax, on the other, report, that the southern branch passes through a longer tract of country, (in support of which they urge the relative position of the blue ridge of mountains, and the course of the river), and contains, in its channel, more water, and is, of consequence, the main branch of the river. Such was the evidence; and, as those; to whom, all these facts were submitted, and who could have had no private motives for it, decided in favour of lord Fairfax, this court will not now impair the force of the decision, or say it was erroneous.
    The judgment of the king and council, then, was no concession of the rights of individuals on the part of the crown; nor any extension of the boundaries of the Northern Neck; but a fair and impartial determination of the boundaries of that territory, as described in the first grant of it.
    Through this medium then, let the cause be viewed:
    If, as seems to be certain, the grant to lord Fairfax and his predecessors, did comprehend the lands in question, have the appellants, independent of the promises made by lord Fairfax to the lord commissioners, or tq Hite, any equitable claim to the lands they contend for? They dilate upon their hardships as first settlers; their merits in promoting the population of the country; and their claims as purchasers without notice. Let each of these be examined.
    Those who explore and settle new countries, are generally bold, hardy and adventurous men, whose minds as well as bodies, are fitted to encounter danger and fatigue; their object is the acquisition of property, and they generally succeed. None will say, that the complainants have failed; and, if their hardships and dangers have any weight in the cause, the defendants shared in them, and have equal claim to countenance; for they, too, with humbler views and less extensive prospects, “have explored, bled for, and settled a, ’til then, uncultivated desert. ’ ’
    With as little pretensions do the appellants claim the merit of having strengthened the frontier, and contributed to the general population of the country. There is no evidence of *the fact. For who have they drawn from the other colonies and fixed in Virginia? Who was allured here by their persuasions; or, when here, protected by their efforts? The mere grant of principalities to individuals, without correspondent exertions on their part, do not render a country populous. The true reason for the rapid increase of our western frontier, seems to have been the case with which lands were procured. The fame of their fertility and cheapness reached the northern colonies, and invited emigration. All the testimony in the cause supports this assertion; and there is no evidence that a single inhabitant was obtained, who would not have come if the orders of council in favour of Hite and his associates, had never been made. The claims to extraordinary favour on this score, therefore, is without foundation. But, were it otherwise, what right does that give them against lord Fairfax? For they do not pretend, that, at his request, they possessed themselves of his lands; or that, in consequence of any contract with him, they parcelled out his territory. The only pretension is a purchase from those who had no right to sell.
    Neither are the appellants purchasers without notice. For there is no proof of the fact: And whether Joist Hite and his associates had or had not actual notice of the bounds of lord Fairfax’s grant, when he received permits from the governour and council, to take up lands within the pro-prietarjr, is not material; for he ought to have enquired, and there were such circumstances attending his lordship’s claim to the extent contended for by him, as will be deemed sufficient notice to a purchaser. To penetrate into the human mind, and determine with absolute certainty how far particular facts have actually come to the knowledge of a man, is sometimes beyond the reach of the court, but that which a prudent man might and ought to have known, the court will presume him to have known ; and that which should have excited enquiry, and prompted him to have searched into the title, will be always deemed notice to a purchaser. By this rule let the question be tried.
    *Lord Fairfax’s claim for the now acknowledged extent of this boundary, could not have been unknown to any body. For the report of the commissioners to the general court, in 1705, was a public transaction, which could not have escaped general observation: and the report itself must have convinced every man, that it was extremely doubtful which branch of the Rappahanock bounded the north. To this, add the caveats by Robert Carter, which were matters of record, and had actually reached the ear of Vanmeter, and probably Hite, before the date of either order of council; to say nothing of the obligation to take notice of all matters of record, and the pendency of controversies in courts respecting titles. All these circumstances refute the idea of ignorance, and affect the appellants with knowledge of lord Fair-fax’s title.
    But lord Fairfax’s title to the Northern Neck, was a legal title; and he was in possession according to his title and boundaries : Therefore, no mistake, with respect to the boundaries, could give a purchaser a legal, or an equitable title: and, consequently, independent of the promise of lord Fairfax to the royal commissioners for plantation affairs, and that to Hite himself, the appellants have not even a shadow of equity.
    Consider those promises then :
    That to the royal commissioners, was to confirm the grantees under the crown, in the possession of the lands granted. Under which, the appellants sa3", their claims, growing out of the orders of council, are included: This, the appellees deny, and insist that no construction of the promise can reach the case: and therefore it becomes necessary to enquire what a grant is, and what the nature of the orders of council.
    The word grant, as to subjects, according to Co. Litt. 172, a. ‘ ‘is in the common law a conveyance of a thing that lies in grant, and not in livery, which cannot pass without deed; as advowsons, services, rents, commons, reversions, and such like.” And Blackstone defines those from the crown *as matters of public record, as ‘‘no freehold may be given to the king, or derived from him, but by matter of record.” 2 Black. Com. 346. Both these definitions require a seal; and prove that the term cannot be satisfied without one: whereas the orders of council were never under seal; but were mere permits to the applicants, to take up vacant lands, in which no body had a better right. The applicant, therefore, was to find the land, and government promised nothing but to grant it when found. The pretensions of the complainants, therefore, do not meet the definitions; which suppose a conveyance of the legal estate by instrument, under seal, so as to enable the grantee to prosecute or defend his rights upon the legal title, the last act having been done to complete it: whereas the appellants, rest their claims upon agreement to make a grant, if certain conditions were performed: which, by no fair interpretation, can be denominated á grant, according to a just exposition of the term. _
    T admit, however, that if the crown and lord Fairfax intended by the convention in 3745, to include surveys, that the intention ought to prevail. But how does such intention appear? That reasoning which is founded on the idea that the decision of the king and council was a new grant, to lord Fairfax, of a more extended territory, and therefore incapable of affecting the rights of individuals, cannot persuade for a moment: For it is a conclusion drawn from premises evidently untrue. The decision by the king and council is clearly no enlargement of the Northern Neck, but a determination how far the Northern Neck actually extended, as described in the original grant. The reservation, therefore, in the judgment of that tribunal, a reservation produced by the voluntar3r offer of lord Fairfax, cannot be considered as a royal grant; because the king had before granted the lands in question to his lordship’s predecessors. Nor does the omission of the word patent or seal in the decision, afford any argument in favour of the complainants ; because that is the judgment of a court, and not a grant from the crown; and it would have been, too, glaringly improper to *have framed’a judgment in the words of a grant. Of as little weight, is the argument drawn from the distinction between grants on which quit-rents are reserved, and those which contained no such reservation: for if it were true, (although the fact does not appear,) that there were some grants on which no quit-rents were reserved, it is impossible that the orders of council could have been alluded to; because they were not grants at all. Again, the words are, “and where, upon such grants, quit-rents have been reserved.” Plainly referring the word such to those grants, from the terms of which some advantages, profits and emoluments arose to the crown. So that the grants on ■which quit-rents were, or were not reserved, were such as afforded some profits to the grantor. But there is no reservation of any kind, in the orders of council; and therefore that part of the agreement between lord Fairfax and the crown, rather disproves an intention to comprehend oders of council. Not stronger is the observation of the opposite counsel, drawn from the caution, as it is said, used by the crown for securing grantees under the crown, extending not only to security against disturbance from lord Fairfax, but to his consent to all such acts as might be necessary to secure their quiet possession and enjoyment of the lands they had taken up. The true construction of all this seems to be, that lord Fairfax would not only permit the patentees quietly to enjoy, but that he would pass titles to them from himself, if it should be requested. For the titles under the crown being clearly defeated by the decision, that no right to the lands existed in the crown when the patents issued, it might, perhaps, be deemed necessary that lord Fairfax should engage not only that he would not disturb actual patentees, but would, if required, give them sufficient titles from himself: a precaution not unusual, as most deeds contain a covenant for quiet enjoyment, and further assurance. It is plain that the two provisions in this case, were intended for the same subject; because the words are such grant, and said lands: and, if orders of council were included, the patent from lord Fairfax would have been inapplicable.
    *But other circumstances shew, that orders of council were not intended: 1. The contest, between the king and lord Fairfax, was of immense value; and the government, here, seems to have interested itself a good deal in the decision: which was not made in haste, but drawn up advisedly. It is therefore extremely improbable, that cases like those of the complainants, would have been left unexpressed, had there been a design to include them. For, in all legal transactions, the same cases are more frequently repeated, than any one, intended to be comprehended, totally omitted. 2. The promise of lord Fairfax probably owes its existence to the recommendation, with which the address of the king’s commissioners to the governour of Virginia, is closed; and that recommends patentees only. 3. The contrast, between the words used, by the crown, in the grant to lord Culpeper; and those in the decision in favour of lord Fairfax. In the one, the crown articles for the confirmation of contracts: In the other, for the confirmation of grants only: because, in the one case, the interest was enlarged, and therefore any conditions might be inserted ; but the other being only a legal decision, no condition could be inserted, which lord Fairfax did not, expressly, assent to. It is extremely probable, from these circumstances, that had the intention, in the one, as well as in the other case, been to save contracts, it would have been so declared in terms, as well in the one case, as in the other. 4. The act of assembly in 1748, shews that the legislature designed to enact into a law the promise of lord Fairfax to the lords commissioners of plantation affairs; and manifests their idea of the extent of that promise. But the act must, necessarily, have met with the assent of the governour and council, or it could not have been a law; and, if in their conception, it had narrowed rights originating with themselves, they never would have consented to the passage of it. That act, then, expresses the idea which the governour and council had of their own orders of council, and shews that the government, here, did not mean to perplex the compromise.
    *The insinuation in the bill respecting the means by which that act was obtained, is both refuted by the answer of lord Fairfax and the deposition of G. W. Fairfax; and is, upon the face of it, improbable. It is strange too, that the complainants should have supposed their case to have been unknown and unconsidered by their own representatives, and by that power which gave it being, while it ■was particularly attended to, and preserved by the king and council.
    If it be reasonable, to suppose, that the king did not consider the promise of lord Fairfax as comprehending cases similar to that of the complainants, it is almost certain, that lord Fairfax himself, annexed no such idea, to the words he used on that occasion, as his answer denies it, and sets forth his own conception of it, without being disproved by any evidence in the cause.
    Thus, then, as it appears, that the words, in the provision for the grantees under the crown, can, by no construction, be so extended, as to embrace the case of the complainants ; that the king in council and the lords commissioners could not have supposed it to have been comprehended; and that lord Fairfax himself did not design it should, the court will not extend it beyond the plain meaning of the words, and the intention of the parties.
    On the promise of lord Fairfax, then, to the complainants themselves, unconnected with their former supposed title; on his naked promise uninfluenced by any preexisting circumstances, must they rely for success. As this is the most important point in the cause, some time will be necessary to investigate it.
    The bill states the promise according to the plaintiffs’ own view of it; but that statement is denied by lord Fairfax’s answer, which shews, very clearly, that surveys, made after the caveat, were not comprehended. The question then is, whether, among the surveys made before the caveat, any discrimination was intended? If the answer of lord Fairfax is to have the same weight as those of other people, the question is decided. The promise stated, in it, is universal *and unqualified, as to patents; but, with respect to unpatented lands, it extends, only, to such surveys as were made in an honest and equitable manner. Hite must have so understood it, at the time of the promise, or he "would have required further explanation: and lord Fairfax, not only, uniformly, declared it, but practised upon that idea, giving patents to fair locators, after having the irregularity of the surveys corrected ; and with this they were satisfied.
    There is no testimony to invalidate the answer of lord Fairfax: on the contrary, it is confirmed by those of Peter Scholl and others, to whom he gave patents, after their lands had been re-surveyed in a regular manner. The deposition of Peter Wolfe does not contradict it. He seems only to state detached parts of the conversation ; but says nothing of any expression from lord Fairfax, relative to the irregularity of the surveys; nor does he say, that there was no such expression. Then, as there is other evidence of lord Fairfax’s general declarations, and of his particular declarations to the complainants themselves, the silence of Peter Wolfe, on this subject, proves nothing. Suppose he did not mention it to the settlers in general, they are satisfied: the complainants knew, from lord Fairfax himself, that the lands must be surveyed regularly: and this conversation seems to have been designed for the contentment of the people at large; who, in event, appear to have been pleased with the conduct of his lordship. What, indeed, were his motives, what the object he designed to effect, in all these conversations? We cannot doubt, but it was to increase the number of inhabitants in that country, and to multiply his quit-rents. These seem to have been the points to which all his exertions tended; and his whole conduct appears to have been calculated to effect them. These were clearly promoted by giving patents to the settlers for lands in such shapes as not to destroy the value of the adjoining lands: but these were, as certainly, obstructed, by permitting the lands to be parcelled out, in such a manner, as to render it probable fhat the greater part of them would remain, *for a long time, totally unoccupied : and this makes it reasonable to suppose, that the promises and assurances of lord Fairfax were as they appear, in evidence, to have been, that patents should issue for all lands regularly and equitably surveyed, but for no others. The time and the situation of the parties, when these promises were made, are leading circumstances, to their probable extent. Hol'd Fairfax struck at the very root of their titles; he claimed their lands; and asserted that the crown, from whom they derived their titles, had no right to grant them. This was, at once, to defeat their patents, as well as to destroy their inchoate rights; and therefore the "whole settlement, as well those whose lands were patented, as those who had not then obtained patents, spoke of removing and settling themselves on some less contested spot. Their fears were not, that the shape of such surveys, as grants had not been issued on, would be so changed, as to give their neighbours some water, and some meadow, but that they would lose their lands entirely. To quiet these fears, lord Fairfax’s promises were made; and therefore he repeatedly assures them, that they will only change their landlord: that he means not to exact, from them, higher returns than the king; that he means to be easier than the king; because he will, sometimes, be content with the produce of the lands, instead of money for his quit-rents. The statements, made of the promises, look as if they were designed for the settlers in general, rather than for Hite; and, if there could be any doubt, that doubt would be removed, by observing the deposition of John Dyer, where, after lord Fairfax had made his promise as usual, he is asked how Mr. Hite would come off? Clearly, indicating, that, in the opinion of those who heard him, Hite was included in those declarations, which he made to the people. And will any man say, that those promises have not been religiously complied with? Who, among those settlers, is dissatisfied with lord Fairfax? They enjoy their lands as quietly, and on as easy terms, as they would have enjoyed them, if his lordship had failed in *his suit. That they have obtained patents from his lordship has contributed to the bringing of the present suit, and is one subject of complaint in their bill. ’Tis strange that these promises of lord Fairfax should be urged as arguments against him, when his compliance with those promises would be set aside! or that they would appropriate, entirely to themselves, that which was evidently designed for others, and not for themselves.
    On this view of the case, then, the promises of lord Fairfax give the complainants no claim upon him, but in consequence of those surveys, which were made according to the rules of proportion, which were wisely established throughout the country.
    In short, neither the words of the compromise, nor those of the promise, and much less the intention, warrant the pretensions of the complainants.
    Cur. adv. vult.
    
      
      Northern Neck — To Whom Originally Belonged. — In Stephen v. Swann, 9 Leigh 414, it is said: “The act of 1736, given in evidence by the plaintiff (1 Rev. Code, ch. 89, p. 343), expressly recognizes lord Fair-fax as the rightful proprietor of the Northern Neck, in which these lands lie, and recites the several charters and intermediate grants which establish his title. By virtue of that legislative recognition, equivalent, I think, to an express patent or grant, he has ever since been considered in our courts as tenant in fee of the lands within the Northern Neck, having a property in the soil, and a 'complete seisin and possession thereof, independent of his seign-ioral rights: and it is now too late to question that title. The cases of Hite v. Fairfax, 4 Gall 42: Picket v. Dowdall, 2 Wash. 106; Johnson v. Buffington, 2 Wash. 116; Curry v. Burns, 2 Wash. 121; Marshall v. Conrad, 5 Call 364, and Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch 603, fully sustain these positions; nor are they at all controverted by Judge Roane in his opinions in the cases of Marshall v. Conrad, and Hunter v. Fairfax’s Devisee, 1 Munf. 218.”
    
   The following is the decree which was entered in the cause:

“The court having maturely considered the transcript of the record and the arguments of counsel in this cause, are of opinion, that so much of the decree of the late general court as awards perpetual injunctions against the judgments obtained by William Ewing and others against Joist Hite, ought to be affirmed, and that the residue of the said decree ought to be reversed and annulled.
“And the court proceeding to declare what decree the said late general court ought to have made, instead of that so set aside as aforesaid, do adjudge, declare and order,
“That the heir or devisee of the late lord Fairfax claiming the proprietary of the Northern Neck, or both, if it shall be judged necessary, or those having the legal title therein, by conveyance from the said late lord Fairfax, subsequent to the 25th day of December, 173S, do severally convey, to the appellants, such parts of the lands, contained within the twenty-seven surveys stated in the memorial of *Thomas Marshall and others, as they respectively hold the legal title in.
“Reserving, to all such persons as are in I possession of lands under contracts derived from the appellants or their ancestors, and have since procured deeds of confirmation from the late lord Fairfax.
“And also reserving, to all persons affected by this decree, (except the heir, devisees and executors of the said late lord Fairfax,) as well those who derive any equity from the contracts or conduct of the appellants or their ancestors, as others, to state such equity to the high court of chancery, at any court next succeeding the expiration of three months after they, their husbands or guardians, as the case may require, shall have been served with a copy of the decree of that court in this suit, which shall be made in pursuance of this order, and to have the same discussed and decided upon. And all such persons as do not state their cases, within that time, are to be bound by the said decree, unless upon good cause shewn, the said high court of chancery shall grant a further day for stating such equity.
“It is further adjudged, declared and ordered, that all other persons being in possession of the lands or any part thereof, included within the twenty-seven surveys aforesaid and not falling within either of the reservations aforesaid, ought to be decreed to deliver possession of the same to the appellants on the first day of January next, reserving liberty to the appellants in the mean time, to enter thereon and use the same, so as not to disturb the occupants in the possession of the houses, or to interfere with the cornfields, or to molest or injure their crops, or prevent them from being carried off.
“That the appellants are also entitled to the profits of the said lands, from the first day of January, one thousand seven hur-dred and forty-nine-fifty, after making thereout a reasonable allowance for lasting improvements, composition money, and quit-rents; which said profits are to be accounted for out of the estate of Thomas lord Fairfax, deceased, by those defendants who are his executors, liberty being reserved, *to them, to be heard before this court, at any time before the final decree, on any exception specially stated in the report of those profits, whether tending to shew the said estate to be free from account, or otherwise.
“That the register of the land office ought to issue grants, to the appellants, for such of the aforesaid surveys as were made before the 25th day of December, 1735, and remain ungranted by the said Thomas lord Fairfax, deceased, they complying with the conditions required bjT law in cases of surveys actually lodged in the late secretary’s office, and not carried into patents before the revolution.
“That the appellants ought to be at liberty to resort to the high court of chancery, to obtain satisfaction for any damages which they make appear (at any time before the final decree) to have been, by them, sustained in the loss of any other surveys not yet carried into grant, through the means of Thomas lord Fairfax, deceased, or his agents; and
“That the appellants are entitled to all their costs in this suit, including the allow-anee to the commissioners, surveyors and chain-carriers, for the, performance of the decretal order in the late general court.
“All which is ordered to be certified, together with 'the costs which have accrued in this court, to the high court of chancery.”  