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