Armstrong v. Percy

Bartol, C. J., delivered the opinion of the Court. Ou the 9th day of December, 1868, the appellant obtained from the Land Office a special warrant of survey, to affect and include a certain parcel of vacant land in Allegany county, designated as “ Cairo.” This warrant was executed and a certificate in due form, dated the 14th day of December, 1868, signed by Wm. M. Owens, surveyor of Allegany county, was returned to the Land Office, the composition money was paid and the certificate was examined by the Commissioner and passed. On the 24th day of May, 1869, a caveat to this certificate was filed by the appellees, pending which, another certificate, signed by Wm.

Armstrong, surveyor of Allegany county, for the same tract, purporting to be made under the same warrant, was returned to the Land Office on the 8th day of December, 1869. To this a caveat was filed by the appellees on the 25th day of March, 1870. The Commissioner, after taking testimony and hearing arguments of counsel, ruled in favor of the caveators, sustaining ⁴³⁰ both caveats, and from his decision this appeal is taken. The objections to the first certificate are, that the survey was not made by ¥m.

M. Owens, or by any authorized deputy of his, and that the rules of the Land Office were, in other respects, not complied with. The testimony in the case, if admissible, abundantly establishes these facts. It is proved that the survey was in fact made by ¥m. Armstrong, who was not qualified as a deputy surveyor, nor legally authorized to act.

It further appears that the chain-carriers were not sworn as required by law, and that one of them, Davisson Armstrong, was a minor. These violations of the rules of the Land Office are sufficient grounds for refusing the patent. L. Assist., 289, 325, 491; Cunningham vs. Browning, 1 Bland, 317 ; Chisolm vs. Perry, 4 Md., Ch. Dec., 31.

There is no- doubt of the admissibility of the parol evidence, for the purpose of proving these irregularities. After a patent has been granted, such evidence would not be admissible to contradict the certificate or impeach its validity. The authorities cited by the appellant go only to this extent. But while the matter is in fieri, there can be no valid objection to admitting