HO HOFFMAN v. JOHNSON.

refunding the purchase money; but it is made in kind, in other
land warrants, or by an authority to take other vacant lands any
where to the amount of the deficiency.(i) This warranty, or
implied covenant, passes with the legal title of the grantee to his
assignee, and all those who hold the legal title under him; and is
never extinguished until, after the amount of the deficiency hav-
ing been ascertained, the legal holder has been satisfied by obtain-
ing other land warrants, or has actually included other vacant land
equal in quantity to the deficiency. Any legal holder, in order to
ascertain the existence and extent of this claim against the State,
may, of right, obtain from the land office a warrant of resurvey;
and take in any vacant land immediately contiguous to the original
tract. The deficiency, thus ascertained, is directly set off, in the
land office, against the vacancy included; and, if the vacancy
amounts to as much, or to more than the deficiency, the claim
against the State is fully satisfied; but if less, then it is only satis-
fied in part.( j)

In these respects this general, but implied warrantry in every
patent grant from the State, must be regarded as a peculiar, and
beneficial incident, and privilege beginning, and associated with
the legal title of the original grantee, and following that legal title
from him to all others, who claim under him, until it has been sepa-
rated, and complete satisfaction has been obtained by a holder of
the legal title, (k)

In this case, these tracts of land were deficient in quantity, and
this incidental claim against the State, and the privilege of includ-
ing contiguous vacancy, subsisted in full force at the time the con-
tract was entered into between these parties. The vendor stipulated
to make a good and legal title to these tracts; tacitly, but clearly,
including all incidents and privileges associated with the legal title.
The vendor cannot be allowed to withhold any, then subsisting,
beneficial incident to the legal title; nor can the vendee be allowed
to relieve himself from any burthen or responsibility by rejecting
any incident to the title he contracted to receive.

It is one of the chief purposes of a warrant of resurvey, issuing
from the land office, to ascertain the existence and extent of this
implied warranty; and, where a deficiency exists, to make it up
by taking in contiguous vacancy. It is true, that under such a
warrant, the party may take in any contiguous vacancy, not only

(i) Land Hol. Assis. 473.—(j) Land Hol. Assis. 319, 468, 480, &c.--(k) Land Hol,
Assis. 153.