was settled under the proprietary government, and, upon
principle, I am of opinion the decision was right.
3d Question. If the fact that the owner of a certificate of
resurvey had no such original tract as entitled him to a
resurvey, at any time before grant, is legally made known to the
judge of the land office before grant issues on such certificate,
is it or is it not sufficient to preclude the owner of such
certificate from obtaining a grant upon the same?
Answer. The fact is, I conceive, sufficient to preclude the
owner of the certificate from obtaining a grant on the same.
[See the last answer.]
4th Question. If after the payment of the composition
money upon such illegal certificate, and before patent, a
warrant issues, and a certificate upon that warrant, including
vacant lands before included in the first described illegal
certificate, is regularly made, returned, and compounded on, will
not the owner of that younger certificate be entitled to patent
for the lands included therein upon the vacation of the elder
illegal certificate.
Answer. Yes. It has always been by me considered as a
settled rule that whatever has been done under an improper
warrant is void;¾
that is to say, with respect to the younger
certificate, matters were on the same footing as if the eldest
had never been made.
5th Question. On the hearing of a caveat in the land
office, if the certificate caveated is objectionable, and it should
appear that the caveator has no interest in the land in
question, is it the law of the land office that the caveat shall be
dismissed notwithstanding the certificate caveated should
appear to be defective?
Answer. No.
6th Question. Have you always understood and considered
these as the rules and regulations of the land office as well
under the proprietary government as since the revolution?
Answer. I have understood then (I cannot say always)
but ever since the points have been made and examined by
me, to be rules under the proprietary government, and as
such I consider them as rules under the present government.
Most certainly, I consider them as rules to be observed by
me in case, on caveat, the questions shall come before me.
Some of the rules have, on caveats before me, been actually
recognized;¾
others have not.
¾¾
As to the 2d interrogatory, since I gave my answer, I have
been referred to the case of Chapline and Reedy, in which I
gave a decision which I conceive may be considered as a case
in point.
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