Dorothy v. Hillert

Eccleston, J., delivered the opinion of this court. It has been the long established practice in the Land Office, (as insisted upon by the appellant’s counsel,) when a caveat is filed, if the case be doubtful in its character, to grant the patent. This rule was adopted because, in the event of a decision adverse to the caveatee, he would be excluded from an opportunity of having his rights examined and decided upon by any other tribunal j whilst permitting the patent to issue would leave both parties in a condition to have a full and fair trial respecting the title to the property in contest. But although this may be true in regard to cases of doubt, it is equally true that the Chancellors, acting as Judges of the Land Office, have held it to be improper that a patent should issue, where it is manifest that it could be of no benefit to the caveatee, and would be unjust in regard to the rights of the caveator.

And this, we think, is the character of the case before us. The reason for the rule in cases of doubt has not the same ⁵⁷⁴ force since the act of 1853, ch. 415, giving a right of appeal, as it had formerly. But admitting that this rule should still exert its original influence, yet, in our opinion, the title of the appellee, by possession, is amply sufficient to sustain the decision of the Commissioner of the Land Office. The act of 1818, ch. 90, provides, ee That whenever land shall be taken up under a common or special warrant, or warrant of resurvey, any person or persons, bodies corporate or politic, may give in evidence, under the general issue, his, her or their possession thereof; and if it shall appear in evidence that the person or persons, bodies corporate or politic, or those under whom they claim, have held the lands in possession for twenty years before the action or actions brought, such possession shall be a bar to all right or claim derived from the State under any patent issued upon such warrant or warrants; Provided always, that nothing herein contained shall be construed to affect any title or titles under any common or special warrant, or warrant of resurvey, where the same shall have been laid before the passing of this act.” A special warrant is one of those mentioned in the act, and such a warrant gives rise to the present controversy.

And believing (as we do) the