STRINGER V. LESSEE OF YOUNG, 28 U. S. 320 (1830)

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U.S. Supreme Court

Stringer v. Lessee of Young, 28 U.S. 3 Pet. 320 320 (1830)

Stringer v. Lessee of Young

28 U.S. (3 Pet.) 320


On a trial in ejectment, the plaintiffs offered in evidence a number of entries of recent date made by the defendants within the bounds of the tract of land in dispute, designated as "Young's 4,000 acres," and attempted to prove by a witness that Young, when he made the entries, had heard of the plaintiffs' claim to the land. The defendants then offered to introduce as evidence official copies of entries made by other and third persons since the date of the plaintiffs' grant for the purpose of proving a general opinion that the land contained in the plaintiffs' survey, made under the order of the court after the commencement of the suit, were vacant at the date of such entries and to disprove notice to him of the identity of plaintiffs' claim when he made the entries under which he claimed. This evidence was unquestionably irrelevant.

Entries made subsequent to the plaintiffs' claim, whatever might have been the impression under which they were made, could not possibly affect the title held under a prior entry.

The admission of evidence which was irrelevant but which was not objected to will not authorize the admission of other irrelevant evidence offered to rebut the same when the same is objected to.

The land law of Virginia directs that within three months after a survey is made, the surveyor shall enter the plat and certificate thereof in a book, well bound, to be provided by the court of his county at the county charge. After prescribing this, among other duties, the law proceeds to enact that any surveyor failing in the duties aforesaid shall be liable to be indicted. The law, however, does not declare that the validity of such survey shall depend in any degree on its being recorded.

The chief surveyor appoints deputies at his will, and no mode of appointment is prescribed. The survey made by his deputy is examined and adopted by himself, and is certified by himself to the register of the land office. He recognizes the actual surveyor as his deputy in that particular transaction, and this, if it be unusual or irregular, cannot affect the grant.

Objections which are properly overruled, when urged against a legal title in support of an equity dependent entirely on a survey of land for which a patent has been issued, can have no weight when urged against a patent regularly issued in all the forms of law.

In Virginia, the patent is the completion of the title, and establishes the performance of every prerequisite. No inquiry into the regularity of those preliminary measures which ought to precede it is made in a trial at law. No case has shown that it may be impeached at law, unless it be for fraud. Not legal and technical, but actual and positive fraud in fact committed by the person who obtained it, and even this is questioned.

Page 28 U. S. 321

It is admitted to have been indispensably necessary to the plaintiffs' action to show a valid title to the land in controversy and that the defendants were at liberty to resist the testimony by any evidence tending in any degree to disprove this identity. But the defendants were not at liberty to offer evidence having no such tendency, but which might either effect a different purpose or be wholly irrelevant. The question of its relevancy must he decided by the court, and any error in its judgment would be corrected by an appellate tribunal. The Court cannot perceive that the omission of the surveyor to record the survey, or the fact that the survey was made by a person not a regular deputy, had any tendency to prove that the land described in the patent was not the land for which the suit was instituted.

The warrant for the land in controversy was entered with the Surveyor of Monongalia County on 7 April, 1784. At the May session of that year, the General Assembly of Virginia divided the County of Monongalia, and erected a new county, to take effect in July, by the name of Harrison. The land on which the plaintiffs' warrant was entered lay in the new county. The certificate of survey is dated in December, 1784, and in accordance with the entry, states the land to be in Monongalia.

The land law of Virginia enacts that warrants shall be lodged with the surveyor of the county in which the lands lie, and that the party shall direct the location specially and precisely. It also directs dispatch in the survey of all land's entered in the office. No provision is made for the division of a county between the entry and the survey. The act establishing the County of Harrison does not direct that the Surveyor of Monongalia County shall furnish the Surveyor of Harrison with copies of the entries of lands which lay in the new county and with the warrants on which they were made. In this state of things, the survey of the land in controversy was made by the Surveyor of Monongalia; the plat and certificate on which the patent was afterwards issued were transmitted to the land office, and the patent described the land as in Monongalia County. No change was made in the law until 1788. This will not

annul the patent or deprive the unoffending patentee of his property.

The misnomer of a county in a patent for land will not vacate the patent. It will admit of explanation, and if explanation can be received, the patent on which the misnomer is found is not absolutely void.

This was an ejectment brought by the defendants against the plaintiffs in error in the District Court of the United States for the Western District of Virginia, exercising circuit court powers, for the recovery of a tract of 4,000 acres of land in the said district, being a tract lying in the northeast corner of a large connection of surveys made together, owned by Reed and Ford, the said Youngs, Thomas Lardley, and others, some in one name and some in others, as appearing by the surveyor's diagram. There was

Page 28 U. S. 322

a verdict and judgment for the plaintiffs, which this writ of error is brought to reverse.

During the trial, the counsel of the defendants tendered three bills of exceptions to opinions of the court, which are signed, sealed, and made part of the record, and which are substantially as follows:

The first bill of exceptions states that the plaintiffs below, on the trial of the case before the district court, introduced a grant for the lands claimed, which grant is described in the third bill of exceptions, and the plat and report of the surveyor made in the cause.

That the plaintiffs also offered in evidence a number of entries of recent date, made by the defendant Stringer, within the bounds of the said land, as designated on said report, as John Young's 4,000 acres, being the land claimed by the plaintiffs, and attempted to prove by a witness that Stringer, when he made those entries, had heard of the plaintiffs' claim to the land in controversy. The defendants thereupon offered as evidence official copies of entries made by others and third persons since the date of the plaintiffs' grant for the purpose of proving a general opinion that the lands claimed were vacant at the date of the said entries, and to disprove notice to Stringer of the identity of the plaintiffs' claim when he made the entries under which the defendants claim to hold. The court decided this evidence to be inadmissible, to which the defendants excepted.

The second bill of exceptions, after setting out the plaintiffs' grant, states that the defendants then offered in evidence the surveyor's book of Monongalia County to prove no such survey had ever been returned to the office of said surveyor and recorded in the books of the said surveyor, and further offered to introduce evidence to prove that Henry Fink, the deputy upon whose survey the grant purports to have issued, resided at the date of the said survey in Harrison County, and was not then a deputy surveyor of Monongalia County. The defendants offered the said evidence to prove that no survey had ever been made and that the register issued the grant without proper authority, on which

Page 28 U. S. 323

account the same was void. The plaintiffs objected to this evidence as inadmissible for the purpose stated, and the court rejected it as such. The defendants counsel then offered the same evidence to disprove the identity of the land contained in the plaintiffs grant with that now claimed by the plaintiffs, and represented by the surveyor's report as contained by the blue lines thereon and thereon designated by the Roman numeral V. The court also rejected the said evidence for the last mentioned purpose, and the defendants excepted.

The third bill of exceptions states that the plaintiffs on the trial of the cause introduced a grant in the words and figures following, setting it forth at large. The grant is issued to John Young, the lessor, and dated 10 June, 1786, for 4,000 acres, the premises in question, bounded as follows, to-wit: (describing it by metes and bounds).

The defendants thereupon offered in evidence a certified copy of an act of assembly of Virginia establishing the County of Harrison and a copy of the certificate of the survey on which the plaintiffs' said grant issued, dated December 13, 1824, after the act for erecting the County of Harrison was in operation, and proved that the land purporting to be granted and the land claimed as having been surveyed lay in the bounds of the County of Harrison, and upon this evidence the counsel moved the court to instruct the jury that if it was satisfied from the testimony that the lands lay in a different county from that in which the survey imports to have been made, then the grant was void at law, and that it was not competent for the plaintiffs to contradict the call for the county in the grant. But the court delivered its opinion that the foregoing facts, if true, should not avail the defendants in the present action, as the grant was not void, to which opinion the third bill of exceptions is taken.

Page 28 U. S. 336

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