fit, or generally where it is not to the prej- the said manor to the said G. B. and T. his udice of himself or his subjects, the grant wife, and the heirs of G. (without any will be good. Even false considerations grant of the reversion) and the question will not always defeat the King's grant; was, if the reversion would pass by this as where it is personal and executed, as last grant? It was objected. 1. That the for money paid or service done; though the estate tail was not recited as continuing, money was not actually paid or the service whereof the reversion might be granted, done, the grant will be good. 10 Rep. 67. but as determined, and therefore the King 68; St. Saviours 13. patents 4 Mod. 415; granted it as a thing in possession, when Saund. 37; 3 Leon. 248. pl. 455. a. The rea- he had only the reversion expectant. son is, though this be a deceit, yet the law 2. The King thought by the surrender of the does not esteem it so weighty or material first letters patent the estate tail was deteras to destroy the grant. Hob. 223. If there mined, and that he was seized in fee, in was any thing in the argument of the which he was deceived. 3. The King was King's being injured in point of honor, deceived in the estate he granted, for he this sort of deceit is as injurious to honor intended to grant an estate in fee, in posas any other; but as I never read or heard session, and not a reversion expectant, but of that argument till last court, until I have it was adjudged that the grant was good to some better authority for it than Sir John pass the reversion, for here was no wrong Randolph, he must excuse me if I look upon done to any one, and less passed by the it as a mere refined speculation of his own. grant (viz. the reversion) than the King In other cases it has been thought to be for intended, and so no prejudice to him. 6 the honor of the King to make his grants Rep. 55. Lord Chandos. Lege. 2 Mod. 1. valid, and not to destroy them: as in the Where was the King's honor in this case, point of construction, if two constructions or those others I cited. Yet it is evident can be made, and by one the grant will be he was deceived, but the deceit was not void, and by the other good, for the honor material, no ways to his prejudice, and of the King and benefit of the subject, such so not weighty enough to make void his a construction shall be made as will support grant. Many other instances of the the grant. 10 Rep. 67; St. Saviours 6 Rep. 33 like kind might be given, but these 6; Sir John Molin. And certainly it is I hope may suffice to shew, that more for the honor of the King to though the King be deceived, if it be not 32 pass over small faults, where it is in the consideration that is really in his not to the prejudice of himself or sub- title, in the value of the lands, or in the jects, than to be too rigorous in taking restraint he intended to make for his benadvantage of them. In the case of a com- efit, the grant may be good. It will remain mon person, I am sure we should think so. then, to consider whether the King was so 2 Just. 496. 497; 1 Mod. 96. read Hob. 222, deceived in the present case, whether the and St. Saviours' case, 2 Just.; 2 Mod. 1. deceit alleged, be so weighty or material, If the King by office found, has a manor as that it should make the grant void. The in ward, and grants the said manor by a method established here for granting the certain name, which said manor was lately King's lands, has been always the same. seized in our hands, &c. and in truth the A survey is first to be made, and a plat said manor was not seized, this shall not returned before a patent issues. Not that avoid the grant, though false, for it was there is any positive law for this, but that not material, and was only added for the it has been the course and usage from the greater certainty of that which was certain first settlement, and takes its rise, and enough before. 10 H. 4; 2 Sir John Le- continues its force, merely from the King's strange cited in Legat's case, 10 Rep. 113. authority and institution, who, no doubt, &c. Queen Elizabeth granted to Thomas may establish another method for grantMarkham the office of Keeper of parks or ing his lands if he pleases. Now that many woods of B. which said office the Earl of patents must have been granted formerly, Rutland lately held, whereas the said Earl without the ceremony of marking and never held the said office, and it was re- measuring of the land, (the want of which solved by the Chancellor, Attorney, and is the great fraud and deceit here comSolicitor general, to whom it was referred, plained of) must be evident to any one who that the grant was good notwithstanding considers the state of things upon the first that false suggestion. So if the King de- settlement of the English here. The Inmise a manor by special name, which dians were then in great numbers all over manor was lately in the tenure of I. S. but the country, and it could not be done with in truth he never had it, yet the grant is any safety or security; and indeed the disgood; for in these cases the King is not putes we have concerning the bounds of the deceived in his title, nor in the value of old grants, prove this point to a demonstrathat he intended to grant, nor in the re- tion, since in many of them, there appear straint which he, for his profit, intended to never to have been any marked lines or make. Sir Thomas Markham's case, cited boundaries, and almost in all, a vast differin Legat's case, supra. quod lege. H. 7. ence between the courses and distances of anno 1719, granted to G. B. the manor of the patent, and the antient possession unB. in tail male, and anno 24. by letters pat-der them. But I never yet heard that any ent reciting the former, and that they were of these grants have been impeached, besurrendered and cancelled, by virtue where- cause the land was not marked, &c. of, the King was seized in fee, granted Though we may expect they will, if it is

your honors' opinion that that defect is notwithstanding the contrary was asserted sufficient to avoid the King's grant. That last court. This mighty fraud, then, in being equally necessary then as now, there Chew, of being privy to the surveyor's was no positive law then, nor is now, mak-neglect, when stated and considered, aping it necessary or essential, and therefore, for the same reason, that if a grant made ten years ago is void for want of that circumstance, a grant made fifty or an hundred years ago, must be void for want of the like circumstance. The length of time will make no difference in the case of the King. It will be said, perhaps, there is an act of Assembly directing the surveyor to bound the land surveyed by him, by marking trees. And it is true there is such an act, and no doubt but what the surveyor ought to have done it, but then I must observe, that act is merely directing to the surveyor; the title is, 'An act directing the duty of surveyors,' 4. A. c. 22. and the whole scope of it plainly shews nothing more was intended. There is not a syllable of the King's grants, or that they shall be void if the surveyor does not do his duty; nor would the King, I presume, be

pears to be no more than a piece of ignorance and folly, without any probability of a fraudulent sinister intention, either with respect to the King, or any one else. The surveyor is undoubtedly inexcusable. But then whether his neglect of duty ought to make void the King's grant, must be humbly submitted. I shall now speak a word to the second point, which was to shew the general mischief and inconvenience that will be introduced, if it is determined that any neglect of duty in a surveyor, or his omitting to mark and measure the land surveyed, shall make the King's grant void. I have had occasion already to speak of the old grants upon the first settlement of the English here, and it is evident, I hope, from what has been said, that the lands then could not be marked or measured. It is further notorious, that in later 35 *times, surveyors have been very pleased to be so prescribed to. This remiss and negligent in their duty. 34 act then, is nothing to the *purpose, Many plats upon which grants are founded, only to shew the surveyor has not have been returned without stretching a done his duty, which I allow. But it is no chain, or marking a tree. Therefore, if it consequence I hope, that, therefore, the is determined that grants are void for these King's grant is void; I am sure the act slips and frauds of the surveyor, it will says no such thing. But here Chew, the introduce an universal confusion, and grantee, was privy to this neglect of duty shake, for aught I know, half the titles in in the surveyor, and this is made a mighty the country. No purchaser can be safe aggravating circumstance. It may be nec-under a possession, though ever so long, if essary to obviate the force of that objec- the crown thinks fit to repeal the grants; tion. It was said last court, that the grant for no time will bar the King. In short, was a mere forgery, that there was a com- to determine that a grant is void because bination between Chew and the surveyor, though to what end, I know not, and shall be glad it may be pointed out. It is found, indeed, that Chew knew the land was not marked or measured, when he took out his patent; but then it appears in the depositions, that the surveyor, when he began the survey, made an excuse for not finishing it, that it was Saturday night; but promised to do it when he came up to finish some other surveys. This, Chew might reasonably suppose he would do in nine months, which passed before he sued out his patent. But, admitting he was somewhat too hasty in getting a plat, and obtaining a patent before this was done, I cannot see how this can be termed a fraud. It was rather a piece of ignorance, an error of the judgment, not any depraved or sinister intention; nor does there appear any advantage he could possibly propose by it to himself, nor any fraud upon the King; for the full composition was paid. No more lands within the bounds than mentioned in the grant, and the full quitrents honestly paid ever since. Neither could he intend or foresee any prejudice to another. He might well think the surveyor would finish his survey according to his promise; and if he did not do it, it is he alone is guilty of the fraud, and not Chew, and ought to answer for the injury done to the defendant; which he, or his representatives may undoubtedly be compelled to,

the surveyor did not mark or measure the land before he returned his plat, will be in effect to declare that half the patents in this country are void. Now the judges in their determinations, have regard to the generality of the subjects' cases, and the inconvenience that may ensue. 1 Rep. 52. Vaughan lays it down as a rule, that where the law is known and clear, though unequitable and inconvenient, the judges must determine as the law is. But where the law is doubtful and not clear, the judges ought to interpret it to be as least inconvenient. To apply this. As it is far from being clear, that the defect of the surveyor in not marking and measuring the land, is such a deceit or false suggestion, as will make the King's grant void, and as such a determination will be introductive of a general mischief and inconvenience, and tend to destroy many men's titles to their inheritance, I hope it will not be your honors' opinion. As to any hardship that may be pretended on the defendant's part, and I remember a great deal was said of that last court, I hope Chew is not to answer for that, it being altogether the surveyor's fault, of whom he must seek for his remedy.

And as to losing his houses, which is part of the hardship complained of, that is owing to the defendant's own folly and absurdity; since it appears Chew forewarned him from building upon the land in controversy, alleging it was within

his bounds, and the defendant could not be ignorant that it was so, by offering to purchase of him. So his damage upon this account, is of his own seeking, and ought not at all to be considered. And I must submit whether the hardship will not be as great upon Chew, to lose his land merely for a neglect of duty in the surveyor, (for I can consider it in no other light,) when he has honestly paid the King his rights, which is in the nature of purchase money, has no more land than he ought to have, and has paid the full quit-rents ever since the time of his grant. But in truth, the hardship on either side should be thrown out of the question, and the general inconvenience is what ought to be considered. This, I hope, I have sufficiently shewn, and so humbly pray judgment for the plaintiff.

a

ent upon such a piece of forgery as the plat was. Surely no favor or countenance is due to such a practice, especially when an innocent man is to be oppressed and ruined by it. To prove the grant void, were cited Allen Wood's case, 1 Rep. 40. b.; Vores' case cited in Legats. 10 Rep. 110. b. In April, 1735, judgment was given for the plaintiff by the opinion of seven judges against four. But upon the great importunity of the defendant's counsel, the court was prevailed upon to hear another argument, which was made October, 1736, when Blair and Byrd having changed their opinions, judgment was given for the defendant by the opinion of these two and Randolph, Grymes, Carter and Digges; Lee, Tayloe, Curtis, Robin37 son and *the Governor, contra. Lightfoot, formerly for the defendant, now doubted. Carter did not hear the first argument.

Note. The court's opinion turned upon the fraud (as it was termed) in the plaintiff, viz. his knowing the land was not surveyed.

Reported by Edward Barradall, Esq.

Jones v. Langhorn.

October, 1736.

Slaves-Life Interest in Wife.-Slaves were devised

to a woman during her life with remainder to another. She afterwards married and joined with her husband in a deed of mortgage of the slaves for ninety-nine years. The husband died, and an action of detinue was brought by the mortgagee against the wife for the recovery of the slaves. HELD, the action will not lie.

In detinue upon a special verdict. The case was a woman possessed of slaves devised to her during life, and after her death to another, marries and joins with her husband in a deed of mortgage of these slaves for ninety-nine years. The husband dies: this action is brought by the mortgagee against the wife for the recovery of the slaves.

Randolph for the defendant. The 36 question is not whether the *plaintiff's grant be absolutely void; but whether it be good against the defendant, who has obtained a fair grant, and observed all the rules prescribed by the law. Whereas the plaintiff's grant is a mere forgery. Procuring a plat to be returned, and taking out a patent upon it, when he knew the land was not surveyed, was very great fraud upon the King; a false suggestion of the party himself; and must make the grant void, at least so far as not to hurt an innocent person, as the defendant is. The rules for granting lands here, have been the same from the first settlement of the country. The first charter to the company empowered the Governor and Council to settle the privileges of adventurers, which was done by allowing fifty acres to each adventurer. The same course was allowed after the dissolution of the company, without any positive authority till the time of James II., when a new lause was added to the Governor's commission, to grant fifty acres for importation; but no land was granted for money till 1703. Surveying was always necessary, and required before any grant was made, Barradall for the plaintiff. The deed is and where an essential circumstance is undoubtedly void, as to the wife, and so wanting, the grant must be void. Ver- it is merely the act of the husband. The non's case, 1 Vern. 370; Vernon and Ben- question then is solely this, whether the son, 1 Mod. Cha. cases 47. Much more husband in this case could dispose so as to here, where the party himself was privy to prevent any title or interest from survivthis neglect of duty in the surveyor, and ing to the wife; and I conceive clearly that so joined with him in the deceit upon the he might. It is agreed that slaves in this King. The partaker in a fraud is equally case are to be considered as chattels, the guilty with the contriver. The law abhors devise to the wife being before the act, all kinds of fraud. A fine, though the most making them real estate. I shall then consolemn conveyance, if levied by fraud and sider the interest accruing to the husband covin, is void. 3 Rep. 77. Fermers case, in the wife's estate, which is different, as to the inconvenience. This case must according to the nature and quality of that be distinguished from those where the estate. In her lands, &c. he acquires a surveyor alone is in fault, and the grantee freehold during the coverture; or an estate no ways privy. In that case it might be for life, if there is issue between them. heard that an innocent person should suffer In chattels real, he acquires a property and for the neglect of duty in an officer. But a power of disposing in his life-time, but here the party knew the officer had not done not by will; if he dies first without disposhis duty; it was a contrivance and com- ing, they survive to her. If she dies first, bination between them, and a great piece they survive to him. 1 Danv. 705. 8;1 of presumption and a notorious deceit upon Inst. 351. a. But as to chattels personal, the King, for the plaintiff to take out a pat- marriage is an absolute gift of all such in

39

possession, whether the husband survive or no power of disposing, so as to conclude not. Co. Lit. 311. b. And this I presume, the wife after his death, though the dispowhether the wife has an absolute, or tem- sition might be good during his life, and porary, or a qualified property: for all the he cited 1 Inst. 351. a. where a difference right and interest of the wife, be it more is taken between a property and a bare or less, is transferred to the husband, and possession; as where a woman has goods vests in him by way of gift. There is no as bailee or executrix, this bare possession case in law that makes any difference, nor is not given to the husband by the maris there any in the reason of the thing. If riage. He also cited Mor. 521, Thomson v. the husband has a right to the greater, by Butler, where the husband's release of the the argument a majori ad minus, he has wife's annuity was no bar after his death; also a right to the less, for that omne and mentioned the case of Brown and majus continet in se minus, is a rule of *Willis, April, 1731, in this court, law as well as an axiom of philosophy. which he said was in point. He said Certainly it must appear absurd that the it would be a hard case upon women, espelaw should give the husband chattels cially widow's marrying second husbands, 38 in which the wife *has an absolute if they happen to survive: that it would be right, and not those in which she has inconvenient too, since the slaves might a lesser interest. The husband's right as be taken in execution for the husband's to chattels personal, was always the same, debts, or sold by him to the prejudice of and as to chattels real, it has been carried those in remainder. To which it was refurther in later times than formerly; for plied, that it was true in the language of he may now dispose of the trust of a term our books, by the devise of a chattel for as was adjudged about Michl. 1680, in the life with remainder over, that this distinchouse of Lords, in Sir Edward Turner's tion was kept up upon the ground of that case, (1 Vern. 17,) which is the first case old rule of law, the gift of a chattel for an of that sort, the law being otherwise be- hour is a gift forever. But in effect, the fore; but since, has been always held ac- first devisee has a property during life, cording to that determination. 1 Vern. 18; having all the marks of ownership, except 2 Vern. 270, Tudor v. Samyne. Now that of selling absolutely. Whatever profwhether the interest of the wife be only its can be made are his. He may mainfor life or in the whole term, it will cer- tain trover and even dispose during life; tainly make no difference. Whatever in- and certainly this is something more than terest she has, the husband has a power of a bare possession, which is the case, 1 disposing; and if in chattels real, surely Inst. 351. and so nothing like this. The in chattels personal too, in which he ac- use here is coupled with the interest, and quires a more absolute right. If 1 Inst. wherever there is an interest there must be 351, be objected, that the husband shall not some degree of property; for what is a charge his wife's chattels real, though he property but a power of disposing and may dispose; but if she survive, she shall using, which a devisee of a chattel for life hold it discharged; that rule does not hold has during life? Certainly then as such in chattels personal as this case is; besides, devisee has a qualified property, no one all that is meant by that is, that he shall will dispute but he may sell during life. not charge her term with a rent. 1 Rol. Marriage is an alienation, a gift in law, Abr. 344. 5. and 346. 2. But I question equivalent to an alienation in fact.* It is whether the law be so at this day, the hus- agreed, the slaves here vested in the husband's power over the wife's term being band during life. If they vested at all, enlarged since Coke wrote, in the instance they must, for the whole interest the wife just now mentioned; and it is certainly had in them, being all transferred by the absurd that a man should have a power of marriage. It is absurd to talk of the harddisposing and not of charging. Then our ships upon women, unless it be a hardship case is different too; here is a mortgage, that any thing should vest in the husband and the estate and interest become abso- by the marriage. Is it harder that a lesser lute in the law for the term, by non-pay- interest should vest, than that a greater ment of the money, and only an equity of should? The argument from inconvenience redemption left to the mortgagor. is full as ridiculous, since chattels so taken, may as well be taken for the wife's debts as for the debts of the husband, or sold by her in prejudice of the remainder man. It may be an argument against allowing such devises at all, but is none against the husband's right in such a case.

Randolph for the defendant. Slaves here are to be considered as chattels. Now the property of a chattel must be divided, so as that part of the property shall vest in one and part in another. But when a chattel is given to one for life with remainder over, the devisee for life has only the use, and the property vests in the remainder man. It is upon this distinction alone that remainders of chattels are allowed; for if the property vested in the first devisee, the remainder over must be void, because the gift of a chattel for an hour, is a gift forever. That the wife here having only the use and no property, this use vested in the husband only during his life; but he had Marriage is a gift and alienation in law.

Judgment for the defendant, per totam curiam præter Lightfoot and Tayloe.

A like case between Clemonts and Walker, was argued in April, 1739, and the same judgment given by Randolph, Grymes, Carter, Diggs and the Governor. Curtis and Robinson, contra.

Reported by Edward Barradall, Esq. *The wife might give or sell during life by deed.

40

*Tayloe v. Graves.

October, 1736.

Slaves-Detinue.-In 1712 the testator devised to his daughter Mary, the use, labor and services of certain slaves during her life and after her death

the said slaves and their increase, to go to the heirs of her body forever. Mary had issue, a 41 daughter, living at the time of the devise and the

death of the testator, but died before her mother. who was also dead at the time of this action. HELD, that the plaintiff who claimed as heir of the testator could not maintain an action of detinue

for the slaves.

In detinue. A case was agreed; viz. W. P. possessed of the slaves in question, by his will, dated 1712, devises to his daughter Mary, the use, labor and service of them

during her life, and after her decease, the said slaves and their increase, to fall to the heirs of her body begotten forever. Mary had issue, a daughter, living at the time of the devise and the death of the testator, but died before her mother, who is also dead, and the plaintiff claims as heir

to the testator.

But

where not. That in the first case, the issue shall take by way of remainder, and so Hale's opinion seems to be, 1 Vent. 229. upon the authourity of that case. But I take the law to be otherwise settled at this day, nor is there any authority to support that opinion, since Wild's case, which too was against the opinion of two Judges. I conceive then that by this devise, Mary had an estate tail, and then the absolute property vested in her; for slaves could never be entailed before the act of 1727, and under that act only when annexed to lands. The constant resolutions of this Court have been So. On taken as words of purchase, and slaves are the other side, if heirs of the body here are to be considered as real estate, then, the remainder being contingent and void in event, by Mary's leaving no issue, the plaintiff is certainly well entitled. slaves in this case are no more than chatreal estate to some purposes, but not to all; tels. It is true the act of 1705 makes slaves they are to descend to the heir, if a man dies intestate, and a woman is to be endowed of them. But there is an express proviso, that sales and alienations of them may be made in the same manner, as before making the act. There was some difference of opinion in the construction of this act, which occasioned the act of 1727, not to alter the first act, but to explain and amend it; and where a subsequent act explains a former, it cannot be said to alter it, but only point out the true construction. The words of the last act respecting the present question, are worthy of observation. It recites the difference of opinion in construing the first act, and then enacts, That the said act shall hereafter be construed, and the true intent and meaning is hereby declared to be;' no other construction then can now be made than what is hereby declared to be the true construction. It is not at all material Barradall, for the defendant. Slaves in whether the case happened before or since this case are to be considered merely as the act of 1727. The law was always the chattels; but before I speak to that, I shall same. This last act does not alter the first, shew that taking them to be real estate, as I said; it only explains and points out the plaintiff can have no title. If this was the true construction; and the words of the a devise of lands, Mary would take an estate last act are mighty plain (and so indeed I tail by the words of this will, and not an think are the words of the first) that in estate for life with a contingent remainder sales, gifts and devises, slaves are to be to the heirs of her body. It is a rule laid regarded merely as chattels. A sale, gift, down in Shelley's case, 1 Rep. 104, b.; 1 or devise, is to transfer the absolute propInst. 22. b. that where the ancestor takes erty as if such slave were a chattel. Takan estate of freehold, a limitation to his ing slaves then to be chattels, the plaintiff right heir or heirs of his body, are words can have no kind of pretence. It will not of limitation and not of purchase, and so be denied but that a chattel may be given it was adjudged, 1 Vent. 214. 225; King for life, with remainder over; it is not and Melling and Fitzgib. 7. Shaw and material whether the chattel itself be Weigh. There is, however, some excep- given, or only the use for life. The law tions to this general rule, in the case of makes the same construction in both cases, wills, where the testator's intention is ap- viz. that the first devisee has only the use, parent to lodge the inheritance in the is- and the absolute property vests in the resue, as Loddington and Kime, and Bach- mainder man. The use only is given by house and Wells, cited Fitzgib. 22; Shaw his will to Mary for life, and after her and Weigh. See Raymond's argument in death the slaves are to fall to the heirs of that case. In Wild's case, 6 Co. 17, a her body. If heirs of the body here are difference is taken where the ancestor has taken as words of purchase, as descriptio issue living at the time of the devise, and vel designatio personæ, the daughter of

Mr. Attorney General. By the act of 1705, slaves are made real estate, though the law is now altered by the act of 1727, with respect to gifts and devises of slaves, that they can only be given and devised as chattels personal. There is, however, a proviso in this last act, that where slaves have been before given for life, and the remainder thereupon limited to another, that such remainder shall be good in law to transfer the absolute property to the remainder man. The testator here has given only an estate for life to his daughter, with a contingent remainder to the heirs of her body, and there being no such when the contingency happened, viz. at her death, the remainder is void, and the plaintiff as heir at law to the testator, is entitled to these slaves.