Brown v. Shilling

Tuck, J., delivered the opinion of this court. It was settled in the case of Hall vs. Gittings, 2 H. & J., 125, that an escheat patent was only prima facie evidence of title, and might be rebutted, by showing that the former owner did not die intestate and without heirs, as suggested by the party applying for such a patent. This case has been recognised by this court in Hammond vs. Inloes, 4 Md. Rep., 171 . The first exception, therefore, was not well taken, unless the case of Cook vs. Carroll, 6 Md. Rep., 104 , has overruled these decisions.

The cases are materially different in the means necessary in order to obtain an escheat patent, and one like that in Cook vs. Carroll, where the patentee claims as assignee of another, who appears by the records of the land office to be entitled to the land. By the early practice of the office, as we are informed by the Landholder's Assistant, 174, &c., the escheatable quality of land was determined by a jury summoned for the purpose, at the instance of the applicant; and if the provincial court, upon view of the inquisition, adjudged the land to be escheat, a warrant of resurvey was issued accordingly; which judgment of the court upon the inquisition returned, or office found, affirmed the validity of the -particular cause of escheat under which the jury had determined the case to fall. But this process of inquisition and condemnation, interrupted by the change in the affairs of the land office occasioned by the suspension of the proprietary government in 1689, was never fully resumed, and long before ⁸¹ our revolution was wholly abandoned; so that all that a person had to do who supposed land to be escheat, was to make application and take up the land, if he thought proper to incur the expense and risk of not being able to maintain his title. The warrant for this purpose issues, “ upon the mere suggestion of .the applicant, 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.” (Ibid., 470.) Prom this notice of the present practice in such cases, it appears that the judge "of the land office makes no order in the premises which determines any question of right, but that the applicant takes the patent on his own suggestion of the facts necessary to the title, and at his peril. .

In cases like Cook vs. Carroll, however, the process is very different, and a patent can be obtained only upon the most special and specific allegations and proofs, of the right of the party claiming as assignee of the title. These proceedings are stated at pages 493, 494, and, “on the authenticity and validity of these proofs, and their effect in relation to the parties entitled, as well as the several interests of those parties, the judge is to determine and to pass the title of the State accordingly.” It appears that such proceedings were hadas preliminary to the patent set out in the case of Cook vs. Car roll, “whereupon it was ordered by the chancellor that a patent should issue accordingly.” 6 Md. Rep., 105 . If Ann Caldwell, the former owner of the land in dispute, left heirs capable of inheriting, the effect of the evidence offered by the defendant, in the first exception, was merely to