Additional answers of Alexander Contee Hanson to the
Defendant's first 6 interrogatories.
1st. If there be no caveat, or known objection to a
certificate of resurvey, the owner, of course, obtains in due time
a patent. If there be a caveat, he cannot obtain a patent
unless he can shew himself in some way entitled to the tract or
tracts on which the warrant issued. As to the term
" seized" I know not well what to say; and lawyers may differ
as to its import. I give this answer in addition to my
former answer; and it is suggested by an interrogatory on the
part of the plaintiff.
2nd. The want of seizin or title to the land resurveyed
I conceive is a good ground to vacate a resurvey. There has
indeed been no decision that I recollect, in my time, where a
caveat against a certificate of resurvey has been ruled good
on the ground of no seizin or title in the owner. But
possibly the register may recollect such a decision. I have
understood that the question was settled under the proprietary
government, and, upon principle, I am satisfied the decision
was right. At least I consider it as an established rule that
the owner, on caveat, must shew seizin or title, or lose the
benefit of his resurvey.
3d. The fact stated, I conceive sufficient to preclude the
owner of the certificate from a grant on the certificate.
4th. In this case, I am satisfied there has been a decision,
and I have always considered it as a settled rule that
whatever has been done under an improper warrant, or under the
pretext of a warrant not authorising it, is to be held, on
caveat, void ; that is to say the younger certificate is on the
same footing as if the elder certificate had never been made.
To illustrate this I state a case¾
A takes out a special
warrant, describing the land so as to designate his intent with
respect to beginning: The land he surveys is divided into
two distinct parts by an elder tract: Afterwards B surveys
the part so cut off from the beginning. B shall obtain a
patent, notwithstanding the land has been before surveyed.
5th. No. There is no such law or practice of the land
office¾
Nor is it the absolute rule that the caveat shall be
admitted. Circumstances have always governed me. If the
caveator has no interest, I consider the interest of the state,
and the rules of the office. If neither that interest is affected
nor wholesome rules violated, such as that 2 distinct tracts
shall not be contained in one patent, unless in particular cases
&c. &c. I dismiss the caveat.
6th. No additional answer.
¾¾
7th Question. Upon a special warrant, if there is vacancy
not contiguous, and the party makes two surveys and returns
|