318 CUNNINGHAM v. BROWNING.

son who died seized was indebted to the creator, and others who
were entitled to have the lands sold, and the proceeds applied in

be affected by the proclamation warrant, was surveyed. In the present case, it is
clear, from the statement, that the escheat warrant, under which the survey, procla-
mated by the defendant, was made, was invalid. The act of November, 1781, ch. 20,
sec. 8, expressly says, that no escheat warrant shall be good, unless the owner (that
is, the person on whose death it issued) hath died seized in fee simple. But here the
warrant recites the dying seized of the aforesaid Elizabeth Aisquith as the ground of
the escheat; and it appears from the defendant's own shewing, that she did not die
seized in fee simple; but that the land descended from her to her son, as issue in
tail, and no attempt is made to show, that the land was otherwise liable to escheat.

The admission of the parties, which is at least equal to the result of a trial at law,
has precluded a point, which might perhaps have been otherwise made.

Upon the whole, it is adjudged, and ordered, that the caveat of William Aisquith
against Samuel Godman's certificate of lot No. 40, in the city of Baltimore, be, and
it is hereby declared to be good, but that each party shall bear his own costs.

HAMMOND, IN BEHALF OF THE BALTIMORE COMPANY v. GODMAN.—28th Decem-
ber, 1799.—HANSON, Chancellor.—The caveator having taken out a subpoena from
chancery, for the defendant to appear here on this day, to answer the said caveat;
and the defendant appearing, as he alleges, in consequence of the service on him of
the said subpoena, which is by him produced, there was presented to the Chancellor
in behalf of the said caveator, and as the support of his caveat, a deed from Daniel
Nicholson, for conveying to the company aforesaid the land in question. In the said
deed, Daniel Nicholson is recited to be the heir of John Nicholson, the patentee of
the said land, on whose supposed dying seized without heirs, the escheat warrant in
this case was obtained by the defendant. No proof, except the said recital (which
cannot operate otherwise than against the grantor, and those claiming under him,) is
offered, to prove that the said land actually descended from the patentee to the said
Daniel Nicholson, or that the said patentee ever conveyed or devised the said land to
any person whatever, or that the said patentee has left any person capable of taking
as his heir.

On a certificate, returned to this office, in consequence of an escheat warrant, it is
the settled rule and practice, founded on the plain principle of benefit and convenience
to the State, and on common sense, that the caveator of the certificate shall shew a
title in himself, or in some other person. If he cannot do this, why should not the
person, who applies for the land as escheat, and is willing to pay the State accord-
ingly, be allowed to take a patent. The State assuredly is interested in, or at least
cannot suffer from permitting him to take it as escheat, on the prescribed terms.
He alone incurs a risk; and the patent, which he obtains, is not to invalidate, or
affect, the right of any other person. The patent puts him in a condition fairly to
contest the question with any person, who claims the land, under a superior title;
and it is certainly nothing more than right, that the title be fairly tried in ejectment.
Whatever title the aforesaid company has in the land, it will not be affected by a
patent to the defendant.

The Chancellor makes these remarks, because he conceives it probable, that the
practice and rules of this office may not be generally understood.

On the whole, it is adjudged and ordered,that the caveat of William Hammond against
Samuel Godman's certificate of a tract of land, called Nicholson's Delight Rectified,
be, and it is hereby declared to be, dismissed; and that the said caveator pay to the de-
fendant, Samuel Godman, all costs, by him incurred in defence of the caveat aforesaid.