Kelly's Lessee v. Greenfield

Harrison, Ch. J. delivered the opinion of the Court. In this case certain questions have been argued and the Court proceed to give their opinion thereon. 1. What estate William Blackman acquired under the deed from Greenfield and Jozules f Answer.

An absolute fee-simple in the whole of two tracts of land called Callicome and “ Jowles’s Calf Pasture,” except such part thereof as lay within the lines of the tract called “ Holbridge.” In this he acquired a. defeasible estate, liable to be destroyed by Davie or any assignee of his, besides Greenfield and Jowles chaining a patent for it. 2. Whether John Davie had not the equitable interest in the tract of land called Holbridge, when Green field and J ovules executed their deed to William Black-man ? Answer. From the facts, he had. the equitable interest. 3.

Whether Davie’s bond, endorsed upon the deed from Greenfield and J ovules to William Blackman, did not ope-. ¹³⁶ rate as a release, and transfer all Davie's right in the tract of land called uHolbridge," for which he had obtained a certificate so far as it lay within the tracts of land called “ Callicome" and “ Jowles's Calj Pasture P" Answer. This point cannot be determined, for want of a fact being stated. A bond, like the one given by Davie', may operate as a release, and transfer an equitable interest. And if there existed nothing more in the case, Davie's bond might well be considered to have transferred all the interest he had in the tract called “ Holbridge f lying within the lines of “ Callicome" and u Calf Pastured' But it appearing by the state of the case, that Davie, on the same day that he executed the bond to Bhckman, executed one to Greenfield and Jowles, for releasing “ all his right, title and interest, in “ a certain tract of land called “ Holbridge," contain- “ ing 260 acres,” we cannot say that Davie's bond to Blackman transferred all his equitable interest, because it is not stated, that its execution was prior to that of the other bond. 4.

Could Greenfield and Jowles, by procuring an assignment of the certificate from John Davie of “ Holbridge u Town," and a patent upon the same, defeat and avoid their deed to William Blackman, for such part of “ Hoi- “ bridge Town" as lies within “ Callicome" and “ Calf “ Pasture," supposing he were living, against their warranty ? Answer. We are of opinion that they could not! their deed with warranty would always have protected Blackman and his heirs, and any assignee by actual purchase or assignment, against any claim which they or any claiming under them could set up. And the relation of the patent, obtained on the assignment of the certificate from Davie, could never have been carried quo ad Black-man, his heirs and actual assigns, beyond the date of their deed to • him. ¹³⁷ 3.

Would not the proprietor, upon the death of WilHam Blackman, without heirs and dying intestate, stand in the place of William Blackman, and in consequence estoppel and warranty under the deed from Greenfield and fowles to Blackman, that Blackman himself would have been entitled to, had the action been between Black-man and them ? of his right in escheat be entitled to all the benefits of Answer. We are of opinion, under the circumstances of this case, that the proprietor could not take advantage of the warranty: because his right in escheat is by a title paramount, and an implied condition annexed to his grant. That he is in in the post, and he could net be considered, upon any ground of fair reasoning or construction, an assignee within the contemplation of the parties, or the expressions of the deed. 6. And if the proprietor would have been entitled to the same advantages under the deed, that William Black-man himself would have been entitled to, is not his patentee, John Kelly, under the escheat warrant, for want of heirs of Blackman, entitled to the same benefit ?

Answer. The proprietor not being entitled to the same benefits under the deed from Greenfield aud Jowles to Blackman, that Blackman himself would have been entitled to, of consequence his patentee could not be entitled to the same. But it is not a sound or a legal principle, that a patentee can take or have all the rights which the proprietor might be entitled to, even where it is clear, that an indefeasible title by escheat had fallen. He cannot take, by assignment, a right of entry, especially while the possession is full. 7.

Had the proprietor the same rights with respect to Maryland, that the king of Great Britain had in England, in consequence of the fifth section in the charter to him by the king, from his being lord of the fee ? ¹³⁸ . ¿{newer. We are clearly of opinion he had not. His rights were derived under the charter ; the 4th section of which grants to him “ all and singular such ample fights, jurisdictions, &c. as any Bishop of Durham within the hishopric or county palatine of Durham had.” The law writers upon the subject of the palatinate ,rights, A. 60. Davie, Blackstone, &c. ip enumerating the rights, have never .placed them upon a footing with the Court? of the king» and the maxim, ‘f nullum tempus occwrit r.egi,” has never been applied, that we cap find, to any but the king himself.

And it is. a prerogative maxim, which if mu?t have ceased to have heen whenever it became applicable to any subject. Ip the hands of the crovm.it is an inconvenient one, but being placed there, jt is still permitted to continue j but even there it has been greatly restrained by the act of 9 Geo. III. c. —.. It neyer was in the proprietor, because never in the Bishop of Durham-, apd there could have beep po very good pretext for the judges to adopt it here, because he never busied himself extremely in the affairs of Maryland, which was the ground of its being at first established in the case of the king ; ,i. e. his constant attention to the public weal and the public concerns, to the neglect of his private affairs.

Besides, it is an unjust, injurious and inconvenient rule, with respect to the citizens, and as such not being expressly given, it ought pot to be permitted to operate, 8. Whether would the acceptance of the rent by the proprietor or his- officers, from Greenfield and fatales and their heirs, supposing him entitled to the land? which Blackman had as an escheat, bar him of his right in escheat?- Answer. We are of opinion, that even if a right of escheat had ever, fallen, that the acceptance of rent? as, stated in the . case, would have barred the proprietor ;. his title by escheat was a tifie in pais, and no.t of record. ¹³⁹ The king’s title by escheat is a title in pais, and the proprietor’s title could only be completed by his entering into the land, or bringing a writ of escheat after the title by escheat fallen. For having once parted with the fee by a formal and solemn grant, he had nothing left in him but an interest in possibility.

In reverter depending on the remote contingency of the patentee, or any assignee under him or his assignees in futurum, dying without heirs, and, therefore, till re-entry or bringing a writ of escheat, and a recovery, the estate is not revested in him ; and as the estate was to be revested in him by a matter in pais, “ an entry,” it might be continued out of him by matter in pais, viz. acceptance of rent; and in this way-are all the authorities to be understood. 10. Whether the proprietor could be disseised Or barred of his title in escheat by the possession which Greenfield and fowles had, their dying seised, and the descents to their heirs ? Answer. We are of opinion, that if ever he had a right in escheat, the descent would have barred him had he been a party in the present action ; ex consequenti his patentee.

His right was in pais, and might be defeated by matter in pais; and upon the distinction of his right, being in pais, and of its being upon record, all the authorities are to be reconciled. Further the proprietor could not grant, even if he had a right in escheat, before he entered, nor a right of entry cannot be assigned ; and any patent issued by him before he had revested the estate by entry, was void, especially where the possession was filled. 11. Whether a patent can be vacated in a Court of Law ? Answer. [No opinion appears to have been given on this question.] Authorities. 3d point. 1 Raym. 420. 690.

Carth. 63, 64. — 4th point. 3 Co. 28. Butler and Baker’s case. — 5th ¹⁴⁰ point. 1 Co. 1. 122. Co. Litt. 385. 4 Bac. Abr. 154. 156.

F. R. B. 338. 1 Bl. Rep. 147. 179. — 6th point. Vid. Popham, 26. 4 Bac.

Abr. 196, 197. 4 Co. 58. 9 Co. gg — 8th point. Vid. 2 Bl. Com. 245. 4 Co. 55. F. N. B. 340.

Co. Litt. 268. 352. a. 45. 2 Lill. 197. 1 Bac. Abr. 302, 303. 1 Lill. 123. 3 Co. 24. Judgments were entered in each case for the defendants. Hanson, J. who sat at the argument and decision of these cases, did, in May, 1801, whilst Chancellor, file in the office of the General Court the following protest against the preceding opinion, delivered by the Chief Judge, and which protest he directed to be entered on record.

John Kelly’s Lessee "1 In the General Court for v. > the Western Shore, October Greenfield and Sothoron.J term, 1785. In this case, it appears that judgment was