Dulany ex rel. Lord Proprietary v. Jenings

¹¹⁸ This plea was overruled by the Court at October Term, iY34, and the defendants were ruled to answer to the information. The separate answer of William Gumming, one of the defendants. This defendant, for answer to the said information, or to so much thereof as this defendant is advised is anyways material for him to make answer unto, he answereth and saith, that he admits that all lands not cultivated, surveyed, nor reserved, as in the information is set forth, might have always been liable from the first settlement of the Province, to be taken up by common warrants for any thing he knows to the contrary, and that the tenor of common warrants might have been and still continue to issue, and such proceedings had in pursuance thereof, as in the information aforesaid is expressed; but as to the conditions of plantations, and the constant usage and custom of Maryland founded thereon, of issuing common warrants as in the information aforesaid is mentioned, this defendant is very much a stranger, and hath heard general complaints made, that although there was an act of Assembly of this Province made, requiring his Lordship’s agents to hang up in the secretary’s office all such instructions that the said officer or agents of the said Lord Proprietary have from his Lordship concerning the people of this Province, and all the conditions of plantations, that all people might see and know by what power they acted, that the said act had not been complied with. And this defendant says, that he does not know but that lands which were before cultivated or surveyed for any person, and lands which had become escheat, and reverted as escheat to his Lordship, either by default of heirs of any person as in the said information is set forth, had been liable to be taken up otherwise than by special warrants in manner as in the information aforesaid mentioned.

But as to the conditions of plantations, directing the manner of special warrants issu« ¹¹⁹ ing, this defendant is unacquainted; and this defendant says he is likewise unacquainted with the manner of his Lordship’s entering of his reserves of land in the land-office for his own use, or to the use of other persons, and the conditions of plantations warranting the same, and how the same were usually published, that the adventurer or purchaser of land could know the same. And this defendant says he believes there is no law now or was heretofore in force to hinder his Lordship or his ancestors to sell, alien and dispose of his lands to such persons and in. such manner and form as he thinks most proper, and that neither his Lordship’s secretary, clerks and officers, their forms of special or general warrants, can be construed to vacate his Lordship’s grants. And this defendant says, that he hath never heard till lately, that his Lordship the Lord Proprietary of Maryland, or his predecessors, ever pretended to vacate their own grants, unless in case of two contending parties, and at the request of one of the said parties. This defendant likewise says he believes, that by the ancient form of the office as to escheat lands for ’want of heirs, &c. the first discoverer to petitioned his Lordship or his Chancellor, and therein set forth how the land became escheat, and prayed, as he was the first discoverer, he might have the pre-emption thereof; that thereupon a writ of inquiry issued to certain commissioners in the same writ mentioned, to inquire into the premises, who thereupon issued their warrant to the sheriff to summon a jury, which jury made their inquisition, which writ of inquiry, and inquisition taken thereon, being returned thereupon, special warrants issued to the surveyor to resurvey the same.

And this defendant says, he believes it hath always been held, that the takers up of escheat lands for want of heirs, or any of the causes mentioned in the aforesaid information, that warrants have always been had and granted at the risk of the grantee or the person applying for them, and that all other warrants, either general or special, issue directed to the surveyor-general of the Province of Maryland., or his deputies, whereby he ¹²⁰ and they are commanded to lay out the lands for the person -n tjje warrant mentioned, and that such surveyor and his deputies, as this defendant believes and hath been informed, are officers particularly qualified, empowered, and commissioned by his Lordship, who, on their entrance into sajj office, give bond with two or more securities to his Lordship in considerable penalties for the due execu|jon 0f ^e office of surveyor or deputy surveyor, which said surveyor and his deputies have fees and perquisites paid by the persons for whom any service is done. And this defendant says he believes, that as the warrants -are directed to the surveyor, and he is thereby commanded to lay out the land, that the sole trust is reposed in him, and that if his Lordship should at any time be deceived in his grants, (except in cases of land become escheat to his Lordship as aforesaid,) that his proper and only remedy is against his own officer or surveyor. And this defendant admits that there might have been such conditions of plantations published by order of the noble Lord, and in the year in the said information mentioned; but this defendant believes, that the said conditions, as to the point of time in the said information mentioned, were not put in execution; for that this defendant has known certificates postponed for many years, whereon patents thereafter have issued, and believes there may be found in the land-office many postponed certificates whereon thereafter resurveys have been made, and thereafter patents have issued. This defendant believes, that the aforesaid conditions of plantations related only to such as transported themselves or others into this Province, who for their encouragement and trouble were to have had a certain quantity of land laid out for themselves, or for each person so transported, and a grant therefor: but this defendant believes, that the said conditions did not include or had any reference to such as were purchasers from his Lordship or his ancestors.

And this defendant says, that he hath heard and believes, that his late Lordship the Right Honourable ¹²¹ Charles Lord Baltimore, Lord Proprietary of this Province, &c. by his instructions bearing date the 15th of May, 1684, did among other things publish and direct, &c. (as before recited in the answer of Mr. fenings.') This defendant admits, that after the publication of the said conditions, that one Thomas Todd, an Englishman, and adventurer into this Province, on the day and year specified in the information, had laid out for him a parcel of land, &c. This defendant says and hopes to prove, that after the death of the said Robert Busby, Elizabeth his wife intermarried to a certain fames Rawbone; and that the said Rawbone likewise died without issue of the body'of his said wife, and that his wife aforesaid survived him. This defendant says, he believes, and hopes it will be made appear, that the aforesaid Elizabeth, after the death of her second husband fames Rawbone, did sell and convey the aforesaid 90 acres or 120 acres of land called Todd's Harbour, to a certain Richard Hill, deceased, the father of Henry Hill, of Anne Arundel County, gentleman, although the record of such conveyances, by the length of time, and the loss and destruction of the land-records of Anne Arundel County, by the burning of the Court-house of the said County, which happened in the year 1704, wherein it is to be presumed to have been recorded, was burnt, because it appears on record among the proceedings of the Mayor’s Court of the City of Annapolis, that the aforesaid Richard Hill, in the year 1694, appeared before the Honourable Colonel Nicholas Greenberry, Major Edward Dorsey, Mr. Henry Constable, and Mr. Henry Nor-wood, commissioners appointed by virtue of an act of Assembly, entitled, “ An act for erecting Anne Arundel lc and Oxford towns into ports and towns,” and then and there did clearly and voluntarily declare, that he the said Richard Hill did, on the 8th of September, 1684, freely and frankly give and yield for the encouragement and benefit of the town and port of Annapolis, 33 acres of land, lying within the said town formerly purchased by him the said Richard Hill of the relict of the said Rawbone, by ¹²² which acknowledgment it seems to appear, that the said Pickard Hill purchased Todd’s Harbour of the said Bus %’s widow; for it does no way appeal- that she was possessed of any other lands lying within the Province, and thereby it likewise appears, that 33 acres of Todd’s Harbour was part Gf the 100 acres of land originally laid out by virtue of an act of Assembly made in the year 1684, for building- the said town now called the city of Annapolis.

This defendant admits, that the Attorney-General, on behalf of his Lordship the Lord Proprietary, might have procured a resurvey to be made of the aforesaid land called Todd’s Harbour, by the deputy-surveyor of Anne Arundel County, and included therein a great part, and perhaps the whole city, and annexed two plots of such his stirvey to the aforesaid information. But this defendant is advised, that no ex parte survey or resurvey, or any plot or plots thereof, or any depositions or examinations of witnesses, will be received or made use of as evidence, where not judicially obtained, and the adverse party has not had due notice of the same. And this defendant says, that it may be true, that in the year in the information mentioned, a reserve might have been entered for his Lordship in the land-office, in the words as set forth in the information aforesaid; but this defendant knew nothing thereof before the exhibition of the same information, and says that he is unacquainted with the nature and form of those reserves; but humbly conceives, that no reserves, of any form whatsoever used or practised in the land-office, can disable his Lordship at any time thereafter from alienating and disposing of his lands in what manner he thinks fit; and that such reserves can never destroy any former rights made by any former surveys, or surveys prior to the said reserve.. And this defendant believes, that when this cause comes to be heard, it will appear that his Lordship had divested himself of all right and property to the town lands, before the said reserve was entered in the land-office.

Sworn to, 17th February, 1734. ¹²³ The separate answer of Stephen Bordleij, one of the defendants : That he hath heard and believes, that lands not cultivated, surveyed, nor duly reserved to his Lordship’s use, have constantly been and still are subject to be taken up by warrants issuing out of the land-office, in such form as herein after is mentioned, that is to say: 44 Maryland, ss. 44 Lay out for , of County, acres of 44 land, he having paid the usual fine for the same, as ap44 pears, &c. in any part of this Province not formerly laid 44 out for or cultivated by any person, .nor lands leased or 44 reserved for his Lordship’s use, and return your certifi44 cate of survey thereof, with the name of the place, in 44 what County it lieth, and of what manor to be held, into 44 his Lordship’s land-office by the day of 44 next following, thence to be transmitted to the examiner-44 general for due examination, and for your so doing this 44 shall be your warrant. Given under his Lordship’s 44 lesser seal at arms this day of , Annoque 44 Domini .” And thus directed: 44 To his Lord-44 ship’s surveyor of this Province.” And which warrant this defendant believes is usually called a common warrant; and that, on the return of the certificate of survey on such warrant into the said land-office, and on the issuing of a grant thereon under the great seal of this Province, the grantee is entitled to and invested with, and becomes seised of an estate of inheritance in fee-simple therein. And this defendant saith, he has heard and believes, that lands which have been cultivated, surveyed or reserved as aforesaid, have been usually taken up and resurveyed in the following manner, viz. by applying by petition to the Lord Proprietary or to his agent for land affairs, setting forth the occasion of such resurvey, and then praying a warrant to resurvey the same lands. But to what intent or purpose such matters are set forth on application for a resurvey, this defendant doth not know, nor can set forth, ¹²⁴ nor doth he know, nor hath he ever heard, to the best of his remembrance, save by the Attorney-General’s said information, that grants issuing on a resurvey obtained in this Province on such application by petition as aforesaid? ever hath been or are subject or liable to be vacated in case the matters set forth on such application should prove false or erroneous; and this defendant saith, that he doth not apprehend, that the prefixed methods or rules of his Lordship or his officers in granting land can any way affect or impeach this defendant’s title, if not duly observed, and that the rather in regard that all surveys and certificates of surveys are made by his Lordship’s own officers, and are returned into his Lordship’s own offices, and are there by his own officers examined and passed before any grant can issue thereon, and that all grants do issue in such form as his Lordship or his officers please, and by the charter pr letters patent granted by his late Majesty King Charles the first, hearing date the 20th day of June, in the eighth year of his reign, whereby this Province was granted to the now Lord Proprietary’s ancestors, the Right Honourable Cecilios Calvert, then Baron of Baltimore, in the kingdom of Ireland, and his heirs and assigns, (upon which charter or patent, as this defendant apprehends the now Lord Proprietary’s title to this Province depends,) his said late Majesty did, as this defendant verily believes, grant unto the said then Lord Baltimore, his heirs and assigns in feersimple or fee-tail, or for term of life, or lives, or years, to be held of the said then Lord Baltimore, his heirs and assigns, by such services, customs and rents, as should seem fit to the then Lord Baltimore and his heirs, who are thereby made Lords Proprietaries of this Province, by themselves or by their magistrates and officers in that behalf duly to be ordained as therein mentioned, to make fit and wholesome laws from time to time within the said Proyince; yet it is thereby expressly provided, that such ordinances shall not be extended in any wise to bind, charge, or take away .the ¹²⁵ right or interest of any person or persons of or in their freehold goods and chattels, and therefore this defendant humbly insists, that the aforesaid resurvey and the aforesaid grant and confirmation in the year 1718, made to the said Bordley and Larkin as aforesaid, is not voidable, nor ought to be set aside, even suggesting (what this defendant does in no wise admit,) that the same were not made exactly agreeable or pursuant to some former instructions, articles, orders or conditions made or laid down by any Lord Proprietary of this Province, for or relating to the granting of lands within this Province.

And this defendant further saith, that he doth not know or believe, that the said 232 acres of land, dr any part of the land mentioned or contained in the, said resurvey, or in the said grant and confirmation made in 1718, ever escheated to the Lord Proprietary; but this defendant humbly apprehends and insists, that it no ways concerns this defendant whether the same had escheated to the Lord Proprietary or not before the said grant and confirmation were made; for whether the same had or had not been land escheated, it was in the power of the Lord Proprietary, by himself or his officers, to grant the same to the said Bordley and Larkin, in such manner as was done by the said resurvey and grant in 1718. **** And this defendant saith, he doth believe the said Bordley and Larkin did make the aforesaid partition between themselves of the said land, by the said indenture of partition as aforesaid, without making or mentioning any reservation or exception of or relating to the right of the Lord Proprietary, and this defendant believes that they did; and this defendant doth insist, that there was no need to make or mention any such reservation, for that the said Lord Proprietary had, by the said grant, which issued to them in 1718 as aforesaid, granted away to them, and barred and estopped himself from whatever right he might have had to any part of the lands contained in the said resurvey. And this defendant saith he believes the pre? ¹²⁶ scribed methods and roles whereby lands have been and are granted in the said Province, from time to time made an^ down by the Lord Proprietaries thereof, or their officers, for their own convenience and benefit, and not at all with the consent of or contrived for the benefit or convenience of the land buyers or takers up of land, (for that among many other reasons,) this defendant has been informed, and verily believes, that the directions from time to time sent by his Lordship to his officers, commonly called the instructions or conditions of plantations, have been frequently refused to be shewn to such as have applied to the officers for that purpose, as matters that did not concern them; and this defendant verily believes, that the prescribed methods and rules laid down by the Lord Proprietaries and their officers, about the granting or taking up of lands in this Province, never were the law of the said Province, but wrere altered and varied from by the Lords Proprietaries of this Province, or their officers, as they thought fit. And this defendant also humbly insists, that the titles to lands by the said Lords Proprietaries granted to tenants or landholders, are good, notwithstanding such prescribed methods or rules may not have been strictly or exactly observed. And this defendant saith, he doth not know, but hath heard and believes, that there might have been such instructions or conditions of plantations sent to his Lordship’s officers in this Province by the Right Honourable Cecilius, of noble memory, formerly Lord Proprietary of this Province, bearing date on or about the 6th of July, 1649, as in the said information is mentioned; but this defendant saith he doth not know or believe that they have been strictly observed, or that they have been looked upon or usually esteemed as a law to, or binding on, the landholders or tenants in the said Province; for this defendant saith he hath heard and believes, that upon many surveys made since the said instructions in 1649, grants have issued many years after such surveys were respectively made at the request of the legal representatives of ¹²⁷ the respective persons for whom such surveys were made; but whether or not the said instructions were observed and complied with in relation to the said survey made to the said Thomas Todd, in the year 1651, this defendant doth not know, nor can set forth; but he humbly insists the same ought not, at this distance of time, to be inquired into or questioned.

And this defendant saith he doth believe, that a warrant or some regular order to the surveyor of this Province, was made or issued for the said survey of 1651, and warranting the same; for that otherwise the said survey would not have been made, though by the length of time or by the removal of the records (which were not then, as this defendant has been informed and believes, entered in books as they now are) from the city of Saint Mary's to the city of Annapolis, or by the burning of the stadt-house at Annapolis, after their removal thither as aforesaid, to wit, on or about the year 1702, where the records of this Province were kept, and great part of the records therein was burnt and destroyed, the same may have been lost, and though the said warrant be not mentioned or recited in the certificate of such survey, yet this defendant doubts not but a warrant did issue for such survey; for this defendant hath been informed and believes, that it was common at that time and long after, to make a survey and return the certificate thereof into the land-office, without ever mentioning in the said certificate any thing concerning the said warrant which issued prior thereto, and as the foundation of such survey; but whether any or what steps were taken by the said Thomas Todd, or any claiming under him, to obtain a grant for the land included in that survey, until the said Thomas Bordley and Thomas Larkin applied for the same, this defendant doth not know nor can set forth further or otherwise than as aforesaid. But this defendant believes it to be true, that the said survey and certificate thereof, made in the year 1651, was of itself sufficiently valid to support the said resurvey in 1718, and that the said Bordley and Larkin were sufficiently entitled to the ¹²⁸ said survey and certificate of 1651, to found the said resurvey 0f 1718 as aforesaid thereon, though no grant had before issued on such original survey of 1651 ; and this defendant saith, that he doth not know or believe, that the said Thomas Todd, or any person claiming under him, did ever sell, assign, convey or depart with the said land men* tioned in the said certificate of survey in 1651, or any part • thereof, or of his or their right thereto, unto Henry Acton in the said information named, or to any other person whatsoever, other than and except the said Lancelot Todd, to the said Bordley and Larkin, by his deed or conveyance aforesaid, though this defendant says he has heard and believes it may be true, that there is a grant from the Lord Proprietary extant to one ActonSor 100 acres of land, and mentioning to be by an assignment from the ¡said Thomas Todd, but presumes that the said grant is founded, (if on any assignment of any part of the said land,) on an assignment of his right to some other tract or parcel of land than that contained or intended to be surveyed by the said survey and certificate of 1651. And this defendant saith he doth believe, that in the books of record in the said land-office in this Province, or in one of them, there was on or about the 10th of January, 1713, entered a note or entry in the words or to the effect following, that is to say: “ A reserve is this day laid by “ his Lordship on all vacant land lying within the city of “ Annapolis, and fence thereof.” But this defendant doth humbly insist, that such entry could no ways prejudice Such title as the said Lancelot Todd, or any other person, had to the land in question, or any grant which the Lord Proprietary might afterwards grant thereof, nor of any vacant lands within the city of Annapolis, and fence thereof, as aforesaid, which should be granted in such manner and form as is aforesaid to have been used relating to the said grant in the year 1718; for this defendant apprehends the reserve, had it been duly made, could not have been deemed or accounted any thing more than as a caution of ¹²⁹ his Lordship, or his superior officer, to the inferior officers ; but this defendant hath been informed and believes, that such reserve or entry was not duly or regularly made, according to the usual course or method observed and practised in such cases; for that it is customary, prior to the entry of every such reserve, to make a survey of the land intended to be reserved, and the certificate of such survey to be returned into the land-office, so that the particular spot may appear. But this defendant doth not know or believe, nor has he ever heard, that any such survey was made prior to the entry or reserve, or that any eertificate of survey was returned according to the usual custom, and as regularly ought to have been.

And this defendant saith, that he doth believe, that the said Bordley and Larkin did, by virtue of the conveyance made to them from the said Lancelot Todd as aforesaid, and of the aforesaid resurvey and grant made to them in 1718, claim all the lands contained within the bounds of the aforesaid resurvey, and mentioned in the said grant made as aforesaid in the year 1718, and that they did apprehend, and so this defendant doth apprehend and insist, that the exception or saving of his Lordship’s right, as contained or mentioned in the said grant of confirmation, were only words of form and of no effect or force to defeat or prejudice the said grant. But this defendant doth not believe that such words of exception were inserted by the contrivance, means or procurement of the said Bordley and Lar kin, or either of them: but this defendant believes, that the exception or reservation of right mentioned in the said grant of confirmation, was inserted therein as mere words of form by his Lordship’s officer, who made out the said grant. And this defendant saith that he believes that in the margin of the record book, wherein the said certificate of survey in 1651 is entered or recorded, there is entered or written these words or letters,i( Pat. Acton,” but the meaning whereof, or when, or by whom, or on what occasion the same were written there, this defendant doth not know, ¹³⁰ nor can set forth; and this defendant doth deny he eve's* saw or heard of any other deed, entry, or memorandum, than as aforesaid, whereby it can ever be pretended that the said land, described or mentioned in said certificate of survey in 1651, or any other land in lieu thereof, was patented for Henry Acton, or for Acton, in the said information named.

And this defendant further says, that he hopes no errors, mistakes, or irregularities (in case there are any) hi. the proceedings of his Lordship’s officers, shall in anywise affect or impeach this defendant’s title; and this defendant huipbly insists on the legality and validity of the said grant in 1718, and also on the said act of Assembly, mentioned to have been made and passed in the year 1718, (ch. 19.) and on all the steps and proceedings of the said commissioners and their surveyors therein named, in pursuance of the said act, in opposition and as a bar to any right, which the said Lord Baltimore could or might claim to any of the lands described therein or either of them; and this, defendant also insists that the legality, and validity, and effect thereof is properly determinable, and to be tried at the common law upon a scire facias, and not by bill or information in this Court or in a Court of Equity. Sworn to 2d October, 1735. Phil. Key, for defendant.

The replication of Daniel Dulany, Esquire, Attorney-General of the Lord Proprietary that now is, for and on behalf of the said Lord Proprietary that now is, to the answer of William Camming, one of the defendants. The said Attorney-Gen eral, for and on behalf of the said Lord Proprietary for replication saith, that as in all and every the matters contained in the said information, the said Attorney-General for and on behalf of the said Lord Proprietary hath already said and will aver, justify, maintain and prove the said information, and all and every part the matters therein contained to be good, true, certain and ¹³¹ sufficient in law, to be answered unto in such manner and form as the same are therein and thex-eby set forth, and that the matters in the said information contained, are properly determinable and relievable in this Honourable Court. D. Dulany. The examination of Griffith Beddoe, of the city of An napolis, gentleman, taken by virtue of an order of the High Court of Chancery bearing date 25th May, 1736.

Griffith Beddoe, aged 36 years or thereabout, being sworn on the Holy Evangely of Almighty God, to make true and direct answers to the several interrogatories filed by Daniel Dulany, Esquire, relator on behalf of the Right Honourable the Lord Proprietary, complainant against Stephhn Bordley and