
    OCTOBER COURT MDCCXXXVI.
    Legan Lessee of Chew ag’t Stevens.
   There has been a Survey with a Jury in the Country & a special Verdict found here Upon which the Case is In Sep’r 1726. Col. Taylor a sworn Surveiorsurveied (or pretended to survey) for the Lessor of the Pit. 1000 Acres of Land of which he returned a Plat & a Pat. was granted June 16. 1727. This Land except about sixty Poles from the Beginning was not marked or measured before issuing of the Pat. And this Chew the Lessor of the Pit. knew The Deft, afterwards surveys 1000 Acres & obtains a Pat. in Sep’r 1728. which takes in Part of the Land within the bounds of Chews Pat. This was marked and measured & the Surveyor (the said Taylor) told the Deft, the Land was free & not taken up before It appears by the Jurys Report in the Country that the Surveior told Chew when he began his Survey & run the sixty Poles that [157] he could not then finish it being Saturday Night but would when he came up to finish 2. other Surveys he had begun the Day before It appears also that in Jan’ry 1728. when the Deft, first began to seat his Land Chew forewarned him from digging upon the Land in Controversy The Survey is of no other Use than to shew how the Grants interfere And the sole Question in the Case is whether the Grant to Chew the Lessor be good or not

The Objection is that the Surveyors returning a Plat without marking & measuring the Land & that with Chews Privity is a false Suggestion And so the King was deceived & therefore his Grant void

This Point has been once already laboured very strenuously & once Yo’r Hon’r has determined that the Grant is good But Sir J. R. is now to convince you of your Mistake Plowever I hope this case will not be drawn into a Precedent that after Judgment is passed a Cause shall be suffered to be argued again because a Lawyer or his Client happen not to be satisfied

It must be my Task to endeavour to shew that this Grant is good And tho’ I shall not produce so many Cases as I presume you will be entertained with on the other side I hope to prove 1. That there is no such Deceit in this Case as will make void the Kings Grant 2. That to determine this Grant void will introduce a general Mischief & Inconvenience upon the Subjects here

As to the 1. The King is of that great Eminence & Consideration in the Law that many little Defects & Omissions will make his Grant void w’ch in the Case of a common Person have no such Effect Such are Misrecitals wrong Suggestions nonrecitals &c. But the Reason is not as 1 conceive because the Kings Honour is concerned as was argued last Court But because the King is supposed to intend the great Affairs of Governm’t & cannot take Notice of Matters of lesser Moment as a common Person may & ought to do Hob. 224 And the true Reason why the Law adjudges the Kings Grants void in Cases of Deceit are 1. To punish the Party for his Fraud 2. To prevent Damage & Prejudice to the Kings Interest which would often happen if such Grants were allowed Hob. 223.

Yet it is not every Circumstance that strictly may be called Deceit nor every Wrong Suggestion that will make void the Kings Grant and where the King is not deceived in the Cons, in his Title in the Value of the Land or in the Restraint he intended to make for his Benefit Or generally where it is not to the Prejudice of himself or his Subjects the Grant will be good Even false Considerations will not always defeat the Kings Grant As where it is personal & executed As for Mony p’d or Service done tho’ the Mony was not actually paid or the Service done the Grant will be good 10. Rep. 67. 68. St. Saviors Br. Patents 4 Mo. 415. Sav. 37. 3. Leon. 248. PI. 455. a. The Reason is tho’ this be a Deceit Yet the Law does not esteem it so weighty or material as to destroy the Grant Hob. 222.

If there was any Thing in the Argument of the Kings being injured in Point of Hon’r this sort o’f Deceit is as injurious to his Hon’r as-[158] any other But as I never read or heard of that Argument till last Court until I have some better Authority for it than Sir J. R. he must excuse me if I look upon it as a meer refined Speculation of his own In other Cases it has been thought to be for the Honour of the King to make his Grants valid not to destroy them as in the Point of Construction If 2. Constructions can be made and by one the Grant will be void and by the other good For the Honour of the King & Benefit of the Subject such Construction shall be made as will support the Grant 10. Rep. 67. b. St. Saviors. 6. Rep. 6. Sir John Molin. And certainly it is more for the Honour of the King to pass over small Faults where it is not to the Prejudice of himself or his Subjects than to be too rigorous in taking Advantage of them In the Case of a Common Person I am sure we should think so. 2. Inst. 496. 497. 1. Mod. 196.

Read Hob. 222. & St. Saviours Case 2. Inst. 2. Mod. 1.

If the King by Office found has a Mannor in Ward & grants the said Mannor by certain Name which said Mannor was lately seised in our Hands &c. And in Truth the said Mannor was not seised This shall not avoid the Grant tho’ false for it is not material & was only added for the greater Certainty of that which was certain enough before 10. H. 4. 2. Sir John Lestrange. cited in Legats Case 10. Rep. 113. a.

Q. Eliz. granted to Thos. Markham the Office of Keeper of the Parks of Woods of B. which said Office the E. of Rutland lately held whereas the said E. never held the said Office And it was resolved by the Chancellor Attorney & Sollicitor general to whom it was referr’d that the Grant was good notwithstanding that false Suggestion So if the King demise a Mannor by special Name which Mannor was lately in the Tenure of I. S. but in Truth he never had it. Yet the Grant is good for in these Cases the King is not deceived in his Title nor in the Value of that he intended to grant nor in the Restraint which he for his Profit intended to make. Sir Tho. Markhams Case cited in Legats Case supra — Quod lege—

H. 7. Anno 19. granted to G. B. the Mannor of B. in Tail Male And Anno 24. by Letters Pat. reciting the former & that they were surrendered & cancelled by Virtue whereof the King was seised in in Fee granted the said Mannor to the said G. B. & F. his Wife & the Heirs of G. (without any Grant of the Reversion) And the Question was if the Reversion would pass by this last Grant It was objected 1. that the Estate tail was not recited as continuing whereof the Reversion might be granted but as determined And therefore the King granted it as a Thing in Possession when he had only the Reversion expectant 2. The King thought by the Surrender of the first Letters Pat. the Estate tail was determined & that he was seised in Fee in which he was deceived 3. The King was deceived in the Estate he granted for he intended to grant an [159] Estate in Fee in Possession & not a Reversion expectant But it was adjudged that the Grant was good to pass the Reversion for here was no Wrong done to any one and less passed by the Grant (sc. the Reversion) than the King intended and .so no Prejudice to him 6. Rep. 55. Lord Chandos. Lege 2. Mod. 1.

Where was the Regard to the Kings Honour in this Case or those others I cited Yet it is evident he was deceived but the Deceit was not material no Ways to his Prejudice & so not weighty enough to make void his Grant. Many other Instances of the like Kind might be given but these I hope may suffice to show that tho’ the King be deceived if it be not in the Consideration that is real in his Title in the Value of the Land or in the Restraint he intended to make for his Benefit the Grant may be good. It will remain then to consider whether the King was so deceived in the present Case whether the Deceit alledged be so weighty or material as that it should make the Grant void

The Method established here for granting the Kings Lands has been always the same a Survey is first to be made and a Plat returned before any Patent issues Not that there is any positive Law for this but it has been the Course and Usage from the first Settlement and took its Rise & continues its Force meerly from the Kings Authority & Institution who no Doubt may establish any other Method for granting his Lands if he pleases Now that many Patents must have been granted formerly without the ceremony of marking & measuring the Land (the Want of which is the great Fraud & Deceit here complained of) must be evident to any one who considers the State of Things upon the first Settlement of the English here The Indians were then in great Numbers all over the Country and it could not be done with any Safety or Security and indeed the Disputes we have concerning the Bounds of the old Grants prove this Point to a Demonstration since in many of them there appears never to have been any marked Lines or Boundaries and almost in all a vast Difference between the Courses & Distances of the Pat & the ancient Possession under them But I never yet heard that any of those Grants have been impeached because the Land was not marked &c. tho’ we may expect they will if it is Your Hon’rs Opinion that that Defect is sufficient to avoid the Kings Grant That being equally necessary then as now There was no positive Law then nor is now making it necessary or essential and therefore by the same Reason that a Grant made ten years ago is void for Want of that Circumstance A Grant made 50 or 100 Years ago must be void for Want of the like Circumstance The Length of Time will make no Difference in the Case of the King

It will be sayed perhaps there is an Act of Assembly directing the Surveior to bound the Land surveied by him by marking Trees And it is true there is such an Act And no Doubt the Surveior ought- to have done it But then I must observe that Act is meerly directory [160] to the Surveior The Title is An Act directing the Duty of Surveiors 4. Ann. c. 22. And the whole Scope of it plainly shews nothing more was intended There is not a Sillable of the Kings Grants Or that they shall be void if the Surveior does not do his Duty. Nor would the King I presume be pleased to be so prescribed to This Act then is nothing to the Purpose only to shew the Surveior has not done his Duty which I allow But it is no Consequence I hope that therefore the Kings Grant is void I am sure the Act says not such Thing.

But here Chew the Grantee was privy to this Neglect of Duty in the Surveior And this is made a mighty aggravating Circumstance It may. be necessary therefore to obviate the Force of that Objection It was sayed last Court that the Grant was a meer Forgery That there was a Combination between Chew & the Surveior tho’ to what End I know not & shall be glad it may be pointed out It is found indeed that Chew knew the Land was not marked or measured when he took out his Plat but then it appears in the Depositions that the Surveior when he begun the Survey made an Excuse for not finishing it That it was Saturday Night but promised to do it when he came up to finish some other Surveys This Chew might reasonably suppose, he would do in nine Months which passed before he sued out his Pat But admitting he was somewhat too hasty in getting a Plat & obtaining a Pat. before this was done I cannot see how this can be term’d a Fraud it was rather a piece of Ignorance an Error of the Judgment not any depraved or sinister Intention Nor does there appear any Advantage he could possibly propose by it to himself Nor any Fraud upon the King for the full Composition was paid Nor more Land within the Bounds than mentioned in the Grant and the full Quitrents honestly paid ever since Neither could he intend or foresee any Prejudice to another. He might well think the Surveior would finish his Survey according to his Promise And if he he did not do it ’tis he alone is guilty of the Fraud & not Chew and ought to answer for the Injury done to the Deft, which he or his Representatives may undoubtedly be compelled to notwithstanding the contrary was asserted last Court

This mighty Fraud then in Chew of being privy to the Surveyors Neglect when fairly stated & considered appears to be no more than a piece of Ignorance & folly without any Probability of a fraudulent or sinister Intention either with Respect to the King or any one else. The Surveior is undoubtedly inexcusable But then whether his Neglect of Duty ought to make void the Kings Grant must be humbly submitted

[Itíl] I shall now speak a Word to the 2. Point which was to shew the general Mischief & Inconvenience that will be introduced if it is determined that any Neglect of Duty in a Surveior or his omitting to mark & measure the Land surveied shall make void the Kings Grant I have had Occasion already to speak of the old Grants upon the first Settlement here by the English And it is evident I hope from what has been sayed that the Lands then could not be marked or measured It is further notorious that in later Times Surveiors have been very remiss & negligent in their Duty. Many Plats upon which Grants are founded have been returned without stretching a Chain or marking a Tree Therefore if it is determined that Grants are void for these Slips & Frauds of the Surveior it will introduce an universal Confusion & shake for ought I know half the Titles in the Country No Purchasor can be safe under a Possession tho’ ever so long if the Crown thinks fit to repeal the Grants far no Time will bar the King In short to determine that a Grant is void because the Surveior did not mark & measure the Land before he returned his Plat will be in Effect to declare that half the Patents in this Country are void

Randolph for the Deft.

The Question is not Whether the Pits. Grant be absolutely void but whether it be good ag’t the Deft, who has obtained a fair Grant & observed all the Rules prescribed by the Law whereas the Pits. Grant is a meer Forgery procuring a Plat to be returned & taking out a Patent upon it ■ when he knew the Land was not surveied was a very great Fraud upon the King a false Suggestion of the Party himself and must make the Grant void At least so far as not to hurt an innocent Person as the Deft, is The Rules for granting Lands here have been the same from the first Settlem’t of the Country The first Charter to the Company impowered the Gov’r & Council to settle the Priviledges of Adventurers which was done by allowing 50 Acres to each Adventurer The same Course was observed after the Dissolution of the Company without any positive Authority till the Time of Ja. 2. When a new Clause was added to the Governors Commission to grant 50 Acres for Importation but no Land was granted for Money till 1703. Surveying was always necessary & required before any Grant was made And where an essential Circumstance is wanting the Grant must be void Vernons Case 1. Vern. 370. Vernon & Benson Mod. Ch. Ca. 47. Much more here where the Party himself -was privy to this Neglect of Duty in the Surveior and so joined with him in the Deceit upon the King The Partaker in a Fraud is equally guilty with the Contriver The Law abhors all kind of Fraud A Fine tho’ the most solemn Conveiance if levied by Fraud & Covin is void 3. Rep. 77. Fer-mores Case As to the Inconvenience this Case must be distinguished from those where the Surveior alone is in Fault and the Grantee no Ways privy In that Case it might be hard that an innocent Person should suffer for the Neglect of Duty in an Officer but here the Party knew the Officer had not done his Duty It was a Contrivance & Combination between them and a great Piece of Presumption & a notorious Deceit upon the King for the Pit. to take out a Pat. upon such a Piece of Forgery as the Plat was Surely no Favour or Countenance is due to such a Practice Especially when an innocent Man is to be oppressed & ruined by it

Now the Judges in their Determinations have Regard to the Generality of the Subjects Cases & the Inconvenience that may ensue 1. Rep. 52. Vaughan lays it down as a Rule that where the Law is known & clear tho’ unequitable or inconvenient the Judges must determine as the Law is But where the Law is doubtful & not clear the Judges ought to interpret it to be at least inconvenient To apply this — As it is far from being clear that the Defect of the Surveior in not marking & measuring the Land is such a Deceit or false Suggestion as will make the Kings, Grant void and as such a Determination will be introductive of a general Mischief & Inconvenience & tend to destroy many Mens Titles to their Inheritance I hope it will not be Your Honours Opinion.

As to any Hardships that may be pretended on the Defts. part And I remember a great deal was sayed af that last Court I hope Chew is not to answer for that it being altogether the Surveiors Fault of whom he must seek for his Remedy And as to losing his Houses which is Part of the Hardship complained of that is owing to the Defts. own Folly & Obstinacy since it appears Chew forewarned him building upon the Land in Controversy alledging it was within his Bounds And the Deft, could not be ignorant that it was so by offering to purchase of him So his Damage upon this Account is of his own Seeking & ought not to be at all considered And I must submit whether the Hardship will not be as great upon Chew to lose his Land meerly for a Neglect of Duty in the Surveior for I can consider it in no other Light when he has honestly paid the King his Rights which is in the Nature of Purchase-mony Has no more Land .than he ought to have and has paid the full Quitrents ever since the Time of his Grant. But in Truth the Hardships on either [162] Side should be thrown out of the Question And the general Inconvenience is what ought to be considered This I hope I have sufficiently shewn And so humbly pray Judgm’t for the Pit.

To pi'ove the Grant void were cited Alton Woods Case

1. Rep. 40. b. Vows Case cited in Legats 10. Rep. 110. b.

[163] In April 1735. Judgm’t was given for the Pit. by the Opinion of 7. Judges ag’t four But upon the great Importunity of the Defts. Council the Court was prevailed upon to hear another Argument which was made October 1736 when Blair & Byrd having changed their Opinions Judgm’t was given for the Deft, by the Opinion of those two & Randolph Grymes Carter & Digges — Lee Tayloe Custis Robinson & the Governor con. Lightfoot formerly for the Deft, now doubted Carter did not hear the 1. Argument

Note The Courts Opinion turned upon the Fraud (as it was termed) in the Pit. viz his knowing the Land was not surveyed

Vide Sir J. Randolph’s Argument Fr. Deft.

No. 53. & post cod. Lib.  