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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 29   View pdf image (33K)
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LAND OFFICE, 19TH or MARCH, 1851.
SMITH VS. BAKER. 29
GEORGE SMITH, EXC'R OF
JOHN HOYE
vs.
NELSON BAKER.
AND
CHARLES OLIVER
vs.
THOMAS PERRY.
[PRACTICE IN THE LAND OFFICE.]
As a general rule, no patent will issue for any land for which a patent has
been previously granted so long as such patent remains in force, and excep-
tions to this rule should be admitted with much caution.
Escheat land must be taken up by a warrant of escheat, and if under such a
warrant it is included as vacancy the title does not pass to the patentee but
remains in the state.
Where a party takes up escheatable lands as vacancy, and obtains a patent
therefor, the title does not pass, and such lands are liable to be granted
under an escheat warrant, notwithstanding the pre-existing patent.
[Certificates upon certain escheat warrants were caveated in
these cases upon the ground that certain lots included in them
had previously been granted to the caveators, and which they
had taken up as vacancy. These caveats were resisted upon
the ground that the title to such lots never passed to the
caveators by their patents, but still remained in the state, and
were, therefore, liable to be taken up by the caveatees under
their escheat warrants. Upon this question, the Chancellor
delivered the following opinion :
THE CHANCELLOR :
It is unquestionably a general and well established rule of
the land office, that no patent shall be issued for any land
for which a patent had been previously granted, so long as such
patent remains in force; and it is equally undeniable that ex-
ceptions to this general rule should be admitted with much
caution. But notwithstanding this is the acknowledged prin-
ciple, I feel constrained, in deference to the decision of the
Court of Appeals in the case of Lee vs. Hoye, 1 Gill, 188, to
consider these cases either as exceptions to the rule, or as not
VOL. IV—2f

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 29   View pdf image (33K)
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