Cannon's Lessee v. Coffin

It is the opinion of the Court that this patent should not go in evidence to the jury.

Exceptions were written.

Plaintiff offered in evidence an arbitration bond and award between Southy King and Elijah Cannon calling for certain lines not protracted on the pretensions.

Wilson objected to it for that reason, which after argument was rejected by the Court.

Defendant’s counsel. Plaintiff’s title commencing under a warrant granted him to survey five thousand acres for the use [of] the Proprietary of Pennsylvania in the year 1766, he ought to have shown himself possessed within twenty, with the usual deduction. There is no alternative; either his title did not commence with his warrant, or he is barred by the Act of Limitations. If the former is the case, then the warrant to Southy King having been obtained, as the witnesses say, for this land, and having been acted under by measuring the ground, is an appropriation of the land in 1776, which was anterior to plaintiff’s survey, which was made in 1783. And Southy King having been in possession until six or seven years ago, there is a good outstanding title in his heir at law, who has been proved now living, and *300plaintiff cannot recover. By the Act of 1794, c. LVII, s. 5 [2 Del. Laws 1177], plaintiff’s warrant being a proprietary warrant is declared to be no grant, nor is the survey made under it in a better situation, otherwise the Act will be in most cases defeated. The plaintiff can therefore have no title, his warrant and survey being no appropriation until he has paid the caution money and obtained a confirmation of it by patent; but, even in that event, his claim is posterior to King’s, for the same section expressly provides that “no survey made in pursuance of such warrant shall be permitted to invalidate or in any wise call in question any person’s title to any patent or other warrant” etc. Southy King’s warrant, being indisputably within the location of plaintiff’s warrant, is therefore protected and preferred by the Act of Assembly. By the same section it is enacted [that] this species of survey shall not take from another his improvement, and such appears to have been made by King, for the person who laid plaintiff’s warrant in 1783 confesses he embraced part of the ground for which defense is taken in this action, at that time cleared and grubbed.

Plaintiff’s counsel. If we can show defendant’s warrant to have been invalid when plaintiff’s survey was made, our survey could not invalidate it, and it is only in the case of a valid warrant that the second section can have an operation to protect it. A patent is an absolute grant, as a deed is, and passes the title; it is not so with every warrant. Although a located warrant is effectual to give a title in the first instance, a general warrant is not; it must be perfected by laying it and making a return. Of the latter kind is Southy King’s warrant. A deed is ineffectual if fraudulent, though regularly sealed and delivered. A paper, though well executed, if illegal in any respect, conveys no title. In 1783 when plaintiff’s survey was made, defendant’s warrant being general, he had no title. It had the form but not the effect of a title papér, and therefore the Act cited could not protect its validity. Mr. Cannon claims but eighty-five and a half acres under a warrant which might have been laid on five thousand acres, it could not therefore have been one of those pernicious proprietary warrants, which the Act was designed to meet. We contend there has been no title under Southy King’s warrant, and therefore defendant has shown no outstanding title. Nor are we affected by limitation, for our title commenced with our survey.

(Charge.) Gentlemen of the jury, the present action which you are now to decide is brought for the recovery of eighty-five acres. It is stated plaintiff must recover by the *301strength of his own title, and it must appear he has such title to the property. The defendant says first: there is a title in a third person, and has shown a warrant granted in 1776 to Southy King, and insists the title is in his descendants — if you think so, plaintiff cannot recover. Second: that plaintiff has not been in possession within twenty years — if you think he has not had such possession, he cannot recover. Third: that the proprietary warrant under which plaintiff claims is not valid. Certainly a proprietary warrant cannot vacate another warrant, and you are to decide whether Southy King’s warrant was such an one as was provided for by the Act of Assembly.

Verdict not guilty.