Rayfield v. Dixon

Bartol, C. J., delivered the opinion of the Court. This appeal is taken from a decision of the Commissioner of the Land Office, sustaining the caveat of the appellee, against the issuing of a patent for a parcel of land lying in Somerset county, called “ Whealton’s Defeat,” which had been surveyed and returned as vacant, under a special warrant obtained by the appellant. The caveator contends that the land sought to be patented, is included within the limits of an elder patent, issued to Thomas Dixon, on the 10th day of November, 1695, under the name of “ Dixon’s Lot.” To sustain this position he caused the patent of “Dixon’s Lot,” to be located, and the plats with the testimony were returned to the Land Office. From, an examination of these it appears that the appellee has failed to make a true location of “Dixon’s Lot,” as described in the patent.

In the location actually made as returned by the surveyor, the tenth line of the patent “ S. 54 Perches,” 'was omitted. There is a variance of ten perches in the ninth line, ⁸⁴ which according to the patent is N, 55° W. 44 perches, in the surveyor’s return, it is stated as 54 perches. The nineteenth line of the patent is N. 32° E. 180 perches, in the location this is the eighteenth line and is stated to he N. 52° E. 180 perches, but this variance in the course may not be material, as this line calls for “the mouth of a creek issuing out of the sound called Flat-Cap. Creek,” which- call, if established by proof, would control the course as indicated in the patent.- Wilson vs. Inloes, 6 Gill, 121 .

The entire omission of the tenth line of the patent, in the location made by the surveyor, however, is fatal to the case of the