children who may have died before the father: in short
all the heirs, agreeably to the law of descents, existing at the
death of the owner of the certificate, and noticing the
subsequent death of either of these, and the fact of such last
mentioned person's having died intestate or otherwise: and these
particular statements must be accompanied by an express
declaration that the persons described as heirs are the only heirs
of the party in whose name the certificate stands, so far as
the deponents know or believe. On the authenticity and
validity of those proofs, and their effect in relation to the parties
entitled, as well as the several interests of those parties, the
judge is to determine, and to pass the title of the state
accordingly. The ways in which this is done are too various to
admit of being particularized, nor can I pretend to point out
the exact circumstances under which patents may issue to
executors, (d) administrators, or other persons, in trust &c. I
shall only observe that it is a general maxim that there must
be some means of conveying the state's title to vacant land
which has been regularly surveyed and compounded on, and
that where difficulties exist as to the persons really entitled,
or their respective interests, the judge of the land office directs
a patent to any uses, and under any trusts or limitations,
that the case may require. In some instances the interests
of different parties are specified; in others, patent is issued
to the uses, generally, of a will therein recited; and where
the validity of a will has been considered doubtful, patent has
issued to the uses mentioned in such will conditionally that it
was a valid one, and if not, to the heirs, as tenants in
common. As to other, extreme, and perhaps irregular cases, it
can answer no good purpose to notice them. There is
perhaps no general rule of the office that has not been strained in
particular instances, in favour of the principle of equity, the
intention of parties, or a supposed necessity of disposing in
some way of a certificate lying under perplexed and
extraordinary circumstances. It is not, indeed, for a register of the
land office (for I write in that character, and under a due sense
of the fidelity in statement which it imposes on me) to
determine absolutely upon what ought to be adduced as matter of
precedent, and what ought not. But it seems idle to lay down
particular rules, supported by general practice, and the most
authentic testimony, and then to adduce particular cases in order
(d) I take this occasion to mention what has by some means been
omitted in its proper place; to wit, that common warrant not executed or
located is by law among assets in the hands of an executor or administrator,
for the payment of debts. Located warrant, and, á fortiori, warrant
executed and certificates returned, are, on the contrary, (in what exact
manner or degree I shall not venture to say) considered as pertaining to real
estate and certificates compounded on, and ready for patent, are decidedly
of that nature.
|