Jay v. Van Bibber

Pearce, J., delivered the opinion of the Court. This is an appeal from the- action of the Land Commissioner in granting two patents for alleged vacant lands in Harford County. The appellee has moved to dismiss the appeal, • ■ 1st.- Because no caveat has been entered to the application for either of the two special warrants issued, and to the returns thereof, and the certificates of survey, as is required by sec. 38 of Art. 54 of the Code of Public General Laws. 2nd. Because the record does hot show any final order or decree from which an appeal lies. 3rd.

Because the record shows no irregularity in any of the proceedings resulting in the issuance of said patents. 4th. Because the appellee has no interest in the contention between the appellant'and the Land Commissioner disclosed by the record. ,We think this motion must prevail. Sec. 38 of Art. 54 provides that if a certificáte of survey shall be returned within the prescribed time, and shall be found to be correct, and the whole composition or purchase-money has been paid, and such certificate has laid six months in the Land Office, and no caveat has been entered thereto, ⁶⁹⁰ the person having such certificate returned, shall be entitled to a patent thereon. Here, the two warrants were issued April 25th, 1900".

Each of the surveys directed by these warrants were made May 10th, 1900, as shown by the certificates, and the certificates -were returned October 19th, 1900, within six months from the date of the warrants, On July 23rd, 1901, the composition or purchase-money on each tract was fully paid. On August 24th, 1901, the Land Commissioner certified to the Governor that patents were proper to be issued for each of these tracts, and on August 31st, 1901, the patents were granted by the Governor, the certificates having laid more than six months in the Land Office. It thus appears that if no caveat was entered, there was no informality or irregularity in the issuance of these patents, ■which are in themselves prima facie evidence that all the incipient steps had been regularly taken before the title was perfected by the patent. Polk v. Wendell, 9 Cranch, 98 ; Minter v. Crommelin, 18 Howard, 88 .

When a patent has been legally authenticated by having the great seal affixed to it, there can be no proceedings in the Land Office by caveat to it, the authority of the Land Office heing at an end. The legal effect of a patent is9 to transfer to the party in whose name it issues all the right which the State possessed in the land which it describes, and no more. It •does not avail against any prior existing legal title, and is a title so far only as to enable a party to contend at law for the land which it conveys. Land Holders' Assistant, 495, 496; Cunningham v. Browning, 1 Bland, 321 .

But if a caveat was entered which has not been heard and •determined before the issuance of these patents, the prima facie evidence of regularity furnished thereby would be overcome, and it would be necessary to remand the case for a hearing and determination of the caveat. The appellant contends that the letter of Mr. Lee, of May 8th, 1900, to the Land Commissioner was a sufficient and legal caveat. That letter is in these words : ⁶⁹¹ “Baltimore, May 8th, 1900. Land Commissioner, Annapolis, Md. “Dear Sir: I hereby wish to make protest against the issuance of a patent to Mr. John M. Michael for land on Swan Creek, Harford Co., Md. Please notify me what, if any, application is made.

Yrs. truly, Jno. L. G. Lee.” / A \ f Land Office of J <¡ Maryland, Annapolis. J ^ Received May 8th, 1900. J V..................J - V-———- “Answer May 9th, 1900.

No warrant issued to John M. Michael.” In Cunningham v. Browning, supra, 295, a caveat in the Land Office is said to be “ a warning to the Chancellor (now to the Land Commissioner) not to put the great seal to a patent for a certain tract of land, as prayed by the holder of a certificate.” There is no prescribed form essential to be used, and the grounds relied on to show that no patent should be issued, may be shown either in the caveat, or at the hearing, but it is obvious, whatever form the caveat may take, that it must so describe or identify the tract of land in question as to constitute notice to the Land Commissioner of what particular tract is intended to be affected by the caveat, and to enable him in consequence of such notice, to withhold a patent which would otherwise be granted. The letter of Mr. Lee contains no such elements of certainty and precision, and affords no such notice. The protest was against the issuance of a patent to John M. Michael, and to no other man. There was no attempt to locate or describe the land in any other manner than as “ land on Swan Creek in Harford Co., Md.” There was no estimate or statement of area, no name assigned to the land, and no reference to any adjoining owners or tracts.

The Commissioner promptly replied, in legally responsive language. “ No warrant issued to John M. Michael.” Had any such been issued, it is a legitimate presumption from the above answer, that the Commissioner would have advised Mr. Lee what ⁶⁹² application had been made by Mr. Michael. Mr. Lee’s inquiry was plainly limited to information as to application by Mr. Michael, and the Commissioner’s answer was fully responsive. He was not supposed to know that the land on Swan Creek affected by Mr. Van Bibber’s warrant was the land inquired of by Mr. Lee, and upon no recognized principles either of legal evidence, or of business dealings can that letter be held to constitute a caveat to the issuance of these patents. Nor is the appellant’s case helped by the affidavit of Mr. Jay as to the verbal notice which he claims to have given to the Land Commissioner at his office in May, 1900.

The facts alleged in this affidavit are expressly contradicted by the statement of the Land Commissioner, made and inserted in the record at the express request of the appellant. The Land Commissioner declares that no caveat of objections were made to the issuing of said patents in writing or orally and that he was not informed and had no caúse to believe that John M. Michael was in any way interested in the said patents or certificates. This statement also embraces a denial by Mr. Shafer, the Chief Clerk of the Land Office, of the correctness of the facts alleged in that affidavit. This statement in its entirety is admissible against the appellant, having been made and embodied in the record at.his request.

But even if not contradicted by the Commissioner’s statement, Mr. Jay’s affidavit of the verbal notice claimed to have been given could not be received for the purpose for which it was introduced. The Commissioner of the Land Office is declared to be a Court of record, and its proceedings cannot rest in parol. It was so held in Carlysle v. Carlysle 10 Md. 449 ; and in Redman v. Chance, 32 Md. 52 , where verbal notice to the mother of an infant before appointing a guardian was not allowed to be received in evidence. The record here discloses nothing which can be held to constitute a caveat within the meaning of the law and these patents were therefore regularly issued.

The title passed thereby is a matter for the cognizance of a Court of law or of equity in their usual modes of procedure in suits or questions of title. Land Holder's Assistant, 372. ⁶⁹³ We do not understand that there is any pretence that any fraud was practised in obtaining these warrants or patents. Had any such fraud been practised, a Court of equity would have been the appropriate forum where full and adequate relief could have been had. Stallings v. Ruby's Lessee, 27 Md. 156 ; Buckingham v. Dorsey, 1 Md. Ch. 31 .

But it was contended by the appellant that in issuing these patents the Land Commissioner acted judicially, and rendered a final judgment from which an appeal lies under sec. 79 of Art. 5, giving the right of appeal “to all parties aggrieved by any judgment, final order or determination in any case affecting the title to lands, made by the Commissioner of the Land