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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 495   View pdf image (33K)
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LAND-HOLDER'S ASSISTANT. 495

 

to shew how far they have been stretched or overlooked.
To avoid, however, any imputation of concealment, I shall
state a few of the strongest cases, from which it may be
inferred that the records afford many others more or less
questionable. A patent has, contrary to the rule that has been laid
down, issued where the party had, in a resurvey, left out the
only land originally mentioned in his warrant, other lands
having been introduced by successive amendments. Patents
have issued under warrants of escheat, and resurvey, on lands
apparently different from those described in the warrants.
Patents have issued where the certificate bore a date prior to
that of the warrant,¾ and where an original did not appear
on record. I speak here of single cases, and cannot
undertake to judge whether the chancellor or register was
overreached, or some consideration prevailed that does not now
appear. But, contrary to an acknowledged principle, a
patent has also been issued for the same land, and on the same
certificate, on which a patent had already been passed, and
was not vacated; and this was done merely on the ground of
a disagreement (in the courses) between the original patent
and the certificate. I cite these cases to shew that in the great
variety of circumstances to be found in the business of the
land office, and the haste (owing to the importunity of the
parties) with which it is sometimes transacted, it is possible for
the most correct officers to overlook a rule, or to be
mistaken in the circumstances of a particular case, and consequently
that every thing that has been, in a single instance, done or
permitted is not to be considered as matter of precedent.

    When a patent is issued, the authority of the land office is
understood to be at an end. The patent is recorded before
it is delivered: the certificate remains in the office, with the
assignments, if any, and the proofs, in case the patent has been
ordered on petition, on which the order was founded, except
that original papers, recorded in courts, and to which there
are therefore permanent means of recurrence, may be
withdrawn. The certificate is also recorded with its endorsements,
and with the assignment, petition, and order, on which
the patent may have been granted: and this, with the
necessary entry in the margin of the warrant or warrants applied
to the survey, terminates the matter.
¾ Having brought the
business of the land office, therefore, to its ultimate point, I
shall close my undertaking with a few general remarks.

    The legal effect of a patent is to transfer to the party in
whose name it issues, either absolutely, or to the uses or trusts
therein mentioned, all the right which the state possessed in
the land which it describes, and no more. Consequently a
patent does not avail against any prior and existing legal title,
but it operates against any equitable title until it is vacated,



 
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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 495   View pdf image (33K)
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