Armstrong v. Bittinger

Alvey, J.,

delivered the opinion of the Court.

. According to the view we have of this case, it is not necessary that we should decide the question, whether Solomon Armstrong, the caveator, be the heir-at-law of Captain George Armstrong, to whom military lots, Nos. 2867, 2368, 2395, and 2396, were allotted, of the land lying west of Fort Cumberland, appropriated by the State to the officers and soldiers of the Maryland line, for services in the revolutionary war. Independent of all interest that the caveator may have, we think no patent should issue on the proceedings disclosed bjy the record.

While it is true, that where there is a real douht as to the validity of the caveator’s objections to the issual of a patent, and the • proceeding be otherwise unobjectionable, the general rule of the Land Office has been to overrule the caveat and to allow the patent to issue, leaving the question of the legality "of the patent to be afterwards tried in an action of ejectment, or in some other appropriate proceedings. But, on the other hand, there is no rule of the office which requires that the caveat shall be dismissed upon failure of the caveator to show an interest in the matter in dispute. On the contrary, this Court, in the case of Patterson vs. Gelston, 23 Md., 446 , expressly declared, “ that looking to the nature of the subject, it is reasonable that a patent ought to be refused, if any good *109 cause be shown against it, though the interest of the party making the objection should not be proved. In most cases, the caveat proceeds upon the ground that some right or title of the caveator would be interfered with by the grant of the patent; but as the question is always whether it is lawful, right and just to issue the patent, this may and sometimes does depend upon other and higher considerations than the rights of the caveator, and therefore a caveat will not be dismissed merely for want of interest in the caveator in the matter in dispute ; nor would this Court refuse to entertain his appeal on that ground.”- The Judge of the Land Office may, therefore, on caveat, or on an application for a patent, where there is no caveat, refuse a patent on account of a violation of or departure from the rules of the office. 4 Md. Ch. Dec., 31.

In this case, the record does not disclose the suggestion or application upon which the escheat warrant issued ; but the warrant recites the application, and in neither the warrant, nor the certificate of its execution, returned by the surveyor, is the name of any party mentioned, by whose death, intestate and without heirs, the land had become escheat to the State. In the Landholder’s Assistant, 470, the requisites of the application and the warrant issued thereon are stated, and it is there said, that the party believing the land to be escheat to the State by the death of the owner, intestate and without leaving heirs, applies at once to the office ; and, upon his mere suggestion and application, a warrant is issued, with such specifications as to the cause of escheat, and the name, situation and quantity of the land, as the party is enabled or chooses to direct; in which it is obviously his concern to be as correct and as particular as he can, especially in regard to the description of the land. And at page 367, of the same book, in speaking of the facts stated in the application and warrant, it is said that they should state *110 “ that the owner of the land died seized in fee, intestate, and without heirs.” If these be facts that should be suggested as the foundation of the warrant, and should be stated ou the face of it, as means of notice to all concerned, it is manifest that the proceedings in this case are very irregular, and such as ought not to bé sanctioned. It is true, the Commissioner of the Land Office, in issuing the patent, does not conclude any question of right; but an escheat grant is prima facie evidence, and is available for that purpose until the contrary is proved. Lee vs. Hoye, 1 Gill, 201 . And though it is not necessary or usual, according to the practice of the Land Office, to state on the face of the patent whose lands were escheated, or the facts or circumstances which show the lands to be escheatable, yet it by no means follows that those facts may 'be omitted in the proceedings upon which the patent is founded. They are required for a substantial purpose. It is to these facts, displayed of record, that the prima facie effect of the patent is attributed ; and without them there is no sufficient notice furnished to those interested in resisting the issual of the patent. In the case of Lee vs. Hoye, 1 Gill, 201 , in speaking of the effect of an escheat grant, the Court said: “Where a warrant regularly issued, has been executed by the proper officer, and a certificate returned, which has laid a sufficient time in the land office without caveat, to justify the emanation of a grant, it is but a fair, reasonable, prima facie presumption that the land taken up was escheatable, and that the title passed to the grantee.” This presumption, therefore, rests upon the acquiescence of the public, and that acquiescence is shown hy the omission to object to the patent for the required time after notice, furnished by the warrant and certificate returned to the office. Goodwin vs. Caton, 4 Md. Ch. Dec., 160. But where the proceedings wholly fail to disclose the name of the owner of the land, who is supposed to have died seized in fee, intestate and *111 without heirs, it is clear, the ground of the prima facie presumption is seriously weakened. At any rate, the patent should not be issued in such case, upon the presumed acquiescence of the public, without better notice than the proceedings themselves afford.

But, apart from the objections wo have stated to the proceedings, there is another reason why the patent should not be issued as the case now stands, and that is, that it appears from the statement of the commissioner of the land office that the land in question has been taken up as vacant by another person, and a patent issued to him by the State, as far back as the year 1828. Now, while it is very true, that land which has escheated can only be taken up under an escheat warrant, still, if there be no fraud or imposition practiced upon the State, and a party has purchased and paid for land supposed to be vacant, but which in fact came to the State by escheat, and the party receiving the grant has held and exercised acts of ownership over the land for a period to give him the protection of the Act of 1818, ch. 90, Code, Art. 57, sec. 9, he ought not to be disturbed, or have his title clouded or brought into question, by a subsequent grant issued to another person upon an escheat warrant. Dorothy vs. Hillert, 9 Md., 570 ; Jones vs. Bradley, 4 Md. Ch. Dec., 167. The commissioner of the land office has power and authority to hear and decree upon all disputes concerning the issuing of patents, and in all disputes that come before him he is clothed with power to decree thereon according to equity and good conscience, and the principles established in Courts of equity; Code, Art. 54, sec. 14 ; and in a case like the present, the party holding the former grant should be summoned in and given an opportunity of asserting his rights, as opposed to the claim of the party seeking the grant upon the escheat warrant; and thus, by deciding the matter at once, destroy the germ of an useless and vexatious litigation.

*112 (Decided 15th June, 1877.)

The order appealed from will be reversed, and the cause remanded, that the caveat may be sustained, and the warrant and certificate quashed.

Order reversed, avd cause remanded.