Warwick v. Norvell

A defendant at law, having a legal defence to the action, and a distinct ground for equitable relief against the plaintiff’s claim, may bring his suit in equity without waiting for the determination of the action at law, and may, without being compelled to waive his legal defence by confessing a judgment, have a hearing in the court of chancery on the merits of his case, and a decree for the proper relief. Land which had been patented in 1755, being adjudged in 1774, upon petition to the general court, to be forfeited and revested in . the crown, was, in 1797, granted anew by patent to the holder of a land office treasury warrant, as waste and unappropriated land. Held by the court of appeals (following the decision in Whittington &c. v. Christian &c. 2 Rand. 353.) that the patent of 1797 was void. The statute of May 1779, ch. 13. giving the remedy by caveat for determining the right to waste and unappropriated lands, did. not extend to lands which, having been once granted by patent, had afterwards lapsed and become forfeited to the state. Case in which a patent for land was repealed in chancery, under the statute 1 Rev. Code, ch. 119. so far as it interfered with the rights of the complainant.

In September 1812, Reuben Norvell brought a writ of right, in the superior court of iaw for Amherst county, against John Camtn and Betsey his wife and John Warwick and Mary his wife, for a tract of 433 acres of land lying in Amherst. By the evidence at the trial it appeared, that the land in controversy .was parcel of a tract of 3926 acres, which had been granted, in September 1755^ to James Christian, John Christian and William Brown. That after the death of the grantees James and John Christian, (whereby the whole land survived to Broion) Charles and John Christian, sons of the grantee John, presented a petition to the governor, for the whole r , „ . tract, as lapsed and forfeited for nonpayment of quit-rents. That the general court, in April 1774, gave judgment for the petitioners that the lands were for-foiled and revested in the crown, and ordered it to be certified to the governor. That in October 1777, the petitioners Charles and John Christian conveyed and delivered possession of 933 acres of the land to James Grissom. That Grissom conveyed 433 acres, parcel of the 933 acres, to Thomas Powell, by deed dated the 27th of August 1787, and delivered him the possession accordingly. That Powell died in 1788, intestate ; and mrs. Camm and mrs. Warwick were his daughters and only heirs at law. That Camm and wife and Warwick and wife, and those under whom they claimed, had been in possession, ever since the year 1774-, of the land in controversy, which was the same parcel of 433 acres conveyed as aforesaid by Grissom to Powell. And that Norvell, the demandant, now claimed it under a patent issued to him, bearing date the 23d of November 1797, and founded on a land office treasury warrant. Whereupon the court gave an instruction to the jury, that, as the land had been once granted by patent in 1755, though it had been adjudged forfeited and lapsed, by the general court in 1774, and though no new patent had been granted to the petitioners at whose suit it was so forfeited, yet it was not waste and unappropriated land, subject to be taken up by a treasury warrant, and therefore the patent granted to Norvell in November 1797 was void. The jury, under this instruction, found a verdict for the tenants, and the court gave them judgment. On appeal therefrom by Norvell, a special court of appeals, in December 1818, held that NorvelVs patent, being on its face fair and regular, could not be thus impugned collaterally and by extrinsic evidence, but only by suit in equity to set it aside, or some other proceeding having that for its direct object; and that patent must prevail, except against an elder one: therefore the judgment was reversed, and a new trial direeled. See the report of the case, 6 Munf. 233. ' In May 1819, Warwick and wife and mrs. Camm (w^Dse husband was now dead) preferred their petition to the superior court of chancery of Lynchburg, setting forth the rights under which they claimed and held the land in controversy; charging that NorvélVs patent of November 1797, embracing the same, was obtained fraudulently, surreptitiously, illegally, and to the prejudice of the right of the petitioners, being granted upon the false suggestion that the land was waste and unappropriated, and while the female petitioners, who were then infants, were in the actual possession thereof, claiming title thereto in their own right: and therefore praying a writ of certiorari to the register of the land office, commanding him to certify the said patent into the court of chancery, in order that the same might be inspected and repealed. The certiorari was awarded, and a copy of Norvell’s patent duly certified by the register. It was for 669J acres of land, embracing the 433 acres claimed by the writ of right. In February 1824, the case of Whittington v. Christian (reported in 2 Rand. 353.) was decided by the regular court of appeals. It was ejectment brought by the heirs of John Christian against Whittington, for 1000 acres of the 3926 acres of land granted by the patent of September 1755 to James Christian, John Christian and William Brown. The plaintiffs claimed under John Christian, the son of John the original patentee, and one of the petitioners at whose suit the general court, in 1774, had declared the patent of 1755 forfeited. Whittington claimed under Norvell, who claimed this tract of 1000 acres under three patents dated in 1797, and who, and those claiming under him, had held the land ever since. In this case the same questions arose, which were presented in the case of Norvell v. Camm &c. 6 Munf. 233. and which were then decided in favour of Norvell; namely, Whether the land in question, having been granted in 1755, and having been afterwards, in 1774, adjudged to be forfeited and revested in thecrown, was waste and unappropriated land, subject to location on a treasury warrant? if not, Whether, nevertheless, the commonwealth’s legal title therein passed to Norvell by virtue of the patents granted to him in 1797 ? And the court, upon full consideration, decided both points in the negative : it held, moreover, that the petitioners, at whose suit, in 1774, the lands were adjudged forfeited by the original patentees of 1755, and the heirs or assignees of those petitioners, were even now entitled, by right of preemption, to claim grants for the lands so forfeited, and that such grants, when issued, would relate back to the date of the original patent of 1755. In May 1824, Warwick and wife and mrs. Camm filed their bill against Norvell, in the superior court of chancery of Lynchburg. After setting forth, in minute detail, the history and particulars of the title which the complainants claimed in the 433 acres of land (and which had been briefly stated in the petition), the bill charged that Norvell, though he well knew of the various acts under which the female complainants derived their title, proceeded to procure his patent of the 23d November 1797, while those complainants were yet infants of tender years, and while they were in full possession of the said tract of 433 acres; that the said grant to Norvell was illegally, fraudulently and surreptitiously obtained, by a false suggestion that the land embraced thereby was waste and unappropriated, and a fraudulent concealment of the facts known to him as aforesaid $ and that it was obtained to the prejudice of the rights of these complainants. The bill then set forth the proceedings had in the writ of right, the decision of the special court of appeals therein, and the con-Aiding decision of the regular court of appeals in the case of Whittington v. Christian: after which it proceeded in the following terms—“These complainants, in the trial of the aforesaid writ of right, are placed by the varying judgments of the courts in this awkward dilemma—While it is solemnly decided, as the law of the land, that the said Norvell's patents are void both at law and in equity, it has been adjudged, as the law of this particular case, that the validity of said patents cannot be enquired into in a court of law. There are other grounds upon which these complainants are advised that they may still hope to recover, even at law, in the defence of the said writ of right: but they are also advised that it is unsafe for them to go into the trial thereof, precluded as they may be from insisting that the said patents of the demandant are void.” Wherefore the bill prayed that the patent of the 23d November 1797 might be examined and repealed by the chancellor; that meanwhile Norvell might be injoined from farther proceedings on his writ of right, until the subject could be examined and determined in equity; and that the court might order a new trial of the mise joined in the writ of right, wherein Norvell should be inhibited from using that patent in support of his claim. The injunction was awarded. Norvell answered, denying that bis patent bad been obtained fraudulently, surreptitiously, illegally, and upon false suggestion. He relied upon the opinion and judgment of the special court of appeals in his favour, in bar of' all the claims advanced by the bill of the plaintiffs for relief; and he controverted the opinion expressed by the court of appeals in Whittington v. Christian, that the lands originally patented in 1755, and subsequently revested in the commonwealth, were not liable to be taken up under treasury warrants. “ But” (the answer proceeded) “ whatever may be the fate of the question upon a review of the decision of the court of appeals, this respondent is advised that the law of this case, as between him and the plaintiffs, was by the judgment of the special court of appeals, definitively and irreversibly fixed, and by the law so fixed he has a clear and incontestable right to recover at law. This being the case, this respondent is further advised that no precedent deserving the respect of the court sanctions the intervention of the court of equity in the way in which it is sought in this case, and so far granted, by stopping the proceedings at law, so as to keep the suit at law pending and undetermined. Such an intervention, if made on the idea that a defence may be still made at law, is violative of the most obvious principles of a court of equity, and if on the concession that there is no defence at law, it is equally reprobated by those principles, because it keeps on foot two undetermined suits, and should the plaintiffs succeed in equity, this respondent will have been exposed to expenses of the suit that is kept pending at law, without any possible advantage to any one, and should they fail, they will have had for a long time unmerited protection from a court of equity, while that court has left them, when that protection shall have been withdrawn, free to use at law every technical and quibbling objection that may possibly exist against the forms of the proceedings at law. This respondent insists that this case ought not to be taken out of the general rule; and by that rule no injunction should be awarded, but on the condition that the plaintiffs submit to judgment at law, and release all errors in such judgment.” On the 12th of October 1S25, the court of chancery made an order that the injunction which had been awarded to the plaintiffs should stand dissolved as an act of that day, unless the plaintiffs should, at the next term of the superior court of law, confess judgment in the writ of right, for the 433 acres of land in the bill mentioned as claimed by them, or so much thereof as might be comprised in the defendant’s grant sought by the bill to be repealed. On appeal by Warwick and wife and mrs. Camrn from this decree, the court of appeals affirmed the same ; saying, that the general rule was’ ^at when a party came into equity, to be relieved against proceedings at law, he must confess judgment at law, and rely solely on the court of equity for relief: that there was nothing in the peculiar circumstances of this case to take it out of the rule: that, indeed, it did not appear that there was any cause for an injunction, except to restrain the defendant in equity, after judgment obtained by him at law, from turning the tenants out of possession, before the validity of the patent on which his legal title depended, should be examined and decided on in the court of chancery. See the case reported in 1 Leigh 96. where will be found a history, in some respects more detailed than the preceding, of the controversy between these parties. After the case got back to the court of chancery, the only additional papers filed were copies of some proceedings in the writ of right, which shewed that it was still pending and undetermined in September 1829. At May term 1830, the cause was continued at the instance of the defendant, though the plaintiffs pressed for a hearing and offered to take a decree vacating the defendant’s patent upon condition the plaintiffs should confess judgment in the writ of right. And at the October term 1830, the plaintiffs again offered to take a decree upon the same condition. But the cause being finally heard at that term, the chancellor dismissed the bill, upon the ground that after the decision of the court of appeals affirming the decree which conditionally dissolved the injunction, it was necessary for the plaintiffs either to comply with the condition of confessing a judgment at law, or to abandon their suit in chancery, and that in failing to confess the judgment they had shewn their preference for relying upon their defence at law. From the decree of dismission, Warwick and wife and mrs. Camm again appealed to this court.