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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 491   View pdf image (33K)
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LAND-HOLDER'S ASSISTANT. 491

 

    Taking the old practice with the new, I am of opinion that
caveats ought in no manner to be renewed, except upon special
circumstances, which, of course, are not to be judged of by
the register of the office. There is another way however of
keeping a certificate under caveat longer than the time
intended, that is by a second person's caveating the same certificate
on which the caveat of another remains undecided. This is
permitted in the office, and there would be a danger in
refusing it; for the first might be a sham caveat, which, when it
had shut out others, might be suddenly withdrawn, and the
certificate, however objectionable be admitted to patent. In
regard to cross caveats of which some instances will be found
in the adjudications, when a person caveats the certificate of
another and has, himself a certificate including the same land,
or part of it, it is a plain fact that the land is in dispute, and
the caveator's certificate is marked by endorsement to that
effect, and will not be patented until the caveat is disposed of.
But as this is not always perceived in the office, it is best for
the caveated party to make an express entry of a cross
caveat.

    It remains to consider what grounds are sufficient to
support a caveat. In regard to the entry, it has already been
observed that no particular cause of caveat is, of necessity, to
be assigned; and where causes are exhibited, it is presumed
they may afterwards be amended. Where a caveator,
however, files his cause of caveat, under such attendant
circumstances as to make it apparent that he means to advance
nothing further, and the said cause is not, even when the fact is
admitted, sufficient to prevent a grant, it is supposed that the
judge may dismiss the caveat without a formal hearing: but
this must depend in a manner upon consent of the party, who
might claim a reinstatement of the caveat if his intentions
were misunderstood. As to the point of an interest to be
shewn by the caveator, on hearing, I shall leave it where the
testimony of the late chancellor has placed it, only observing
that on a full review of the practice it does not appear to me
that there ever was a rule requiring that a caveat should be
dismissed because the caveator did not shew an interest in
the matter in dispute. I believe in short, that the judge may
on caveat, or on an application for patent where there is no
caveat, refuse a patent on account of a violation of the rules
of the office, or for any valid cause of objection apparent on
the certificate; but, where an interest is set up, it appears by
decisions that it must have originated prior to the entry of
the caveat, or, in the case of a defendant, the means of
defence must have existed prior to the entry of the objection.
Thus, for example, the validity of a warrant of resurvey,

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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 491   View pdf image (33K)
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