Barton v. Swainson

Pattison, J., delivered the opinion of the Court. The appeals in this case are from, three orders of the Commissioner of the Land Office, dismissing* the caveats: of the appellant. In each of these eases Swainson, the appellee, on July 16, 1914, filed Ms application for a warrant of survey for certain vacant lands in' Montgomery County, Maryland. A warrant thereon was issued on the 16th day of July following, and said lands were thereafter surveyed and certificates of such surveys were filed with the commissioner.

On February 3 6, 1935, the 'Chesapeake and Ohio Canal Company’s trustees filed caveats, against the issuance of patents upon said applications of the appellee. On May 3, 3916, the appellant filed applications for special warrants to survey said vacant lands that patents therefor might be issued to him. It appears that a warrant in each case was issued in response to his application, but it is not shown by the record that any return thereon was made to the commissioner. Thereafter the commissioner, who had recently been inducted into office; issued notices, in forms of orders nisi without discrimination to all caveators, including' the Chesapeake and Ohio Canal Company’s- trustees to show cause why their pending caveats should not be dismissed by a certain day named in the order; and on the 24th day of June; 1916, the appellant who had heard of the issuance of said notice also filed caveats against the applications of the appellee Swainson for patents for said vacant lands.

These caveats were dismissed on the 4th day of October, 1916. After service of the aforesaid order or notice on the Chesapeake and Ohio Canal Company’s trustees the caveats against them were heard upon a day agreed upon by the caveators and caveatees and on the 5th day of October, 193 6, the ⁶³² caveats were dismissed, and on the 4th day of December following, patents were ordered to issue to the appellee. The appeals in this ease, as we have said, are from the three orders of October 4, 1916, dismissing the caveats of the appellant. The'record disclosed that the caveats of the Chesapeahe 'and ’ Ohio Oanal Company were not heard and determined within twelve months from the entering of the same^ and this fact is the chief ground of the appellant’s caveats to the issuance of patents to the appellee.

Section 42 of Article 54 of the Code of 1932, provides, “that every caveat shall be heard and determined by the commissi oner of the'land office within twelve months from the entering of the same unless he shall under special circumstances give further time to the parties.” ■ It is contended by the appellants that under a proper construction of this section the commissioner, without special circumstances authorizing extension of time, was not only without authority to hear and determine the caveats but that the appellant because of the failure to hear and determine them within the statutory period had lost his right to have the patents issued to him, even though he should comply with all other requisites of the statute. Section 41 of Article 54 of the Code provides, that if a certificate of survey shall be returned within the time therein prescribed and shall be found to be correct and the whole composition or purchase money has been paid, and such certificate has lain six months in the land office and no- caveat has been. entered thereto the person having such certificate returned, his assigns, devisees or heirs shall be entitled to a patent thereon; or if