Bayard’s Notebook, 90.[†]
Supreme Court of Delaware, Sussex County.
March, 1795.
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In this cause in his charge to the jury it was stated by READ, C. J.:
The plaintiff begins his title with a certified copy of a survey returned into the secretary’s office at Philadelphia, and accepted. It is objected that this is not a sufficient inception of title, and that a warrant ought to have been shown. I have always taken it as the rule that the plaintiff should show the title out of the Proprietary, but the question is what evidence is sufficient for the purpose. On this subject it peculiarly becomes us to have respect to former practice; because such practice has become the foundation of rights to land and, of consequence, where it is established, on no account ought to be shaken. As far as my experience has reached, I have found great indulgence shown in the inception of ancient titles. In early times lands were of little value, and at a period when many grants were made, the country had been but recently conquered from the Dutch, and the government but imperfectly established. Grants were made at New York, and the Jersies being in possession of the Indians created much difficulty in making returns to the warrants. The courts also have had a power to grant. They appointed their own surveyors, but the surveys were returned to New York; under these circumstances it can easily be imagined that the warrants and surveys were much exposed to loss.
The practice of admitting the warrant and survey as inception of title is probably beyond the memory of any of us. The ignorance and negligence of the surveyors of former times in executing and preserving their warrants afterwards carried the practice still farther and induced the courts to allow the warrant without the survey, and the survey without the warrant to be used as evidence of a sufficient grant of land. Indeed, I knew an instance of a survey made by one Henry Hollingsworth, a private surveyor
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of Brandywine Hundred, which was allowed as evidence in ejectment of a grant, and upon which a recovery was had. Such was the practice while I was at the bar, and which I have observed since I have been on the bench. As to the survey before us, it admits of no question; it was returned into the secretary’s office and accepted and is therefore binding on the Proprietary.
We are therefore of opinion that the title is well originated. If there were any doubt, the case affords another answer. Both parties, it appears, claim under the same title. The defendant has derived his title from the same source with the plaintiff; and as far as the title is common to both, we conceive that neither party can except to it. Its being common to both cures all defects so far as both claim under it.
It has also been objected that the plaintiff has not shown a connected chain of title from the first grantee. The fact is true, but we do not consider it material. In England it is enough to show title from the person who last died seised; and with us it is the practice, though perhaps of recent date, to show the title out of the Proprietary and then to deduce a title from the person who last died seised. As the country advanced in years this practice necessarily arose. In process of time the transfers of property multiplied conveyances to such extent that it could not reasonably be expected that all would be preserved by the successive hands through which they passed.
I will mention another point of practice in answer to an objection to a piece of evidence which has been offered. The evidence I refer to is the certificate of an acknowledgment of a deed from a grantor to a grantee. Such certificates have always been allowed as evidence of the former existence of the deeds.
Ridgely and Bayard for plaintiff. Peery an Wilson for defendant.
Upon a second trial of this cause at March Term, 1797, upon the objection that the quantity of land was much greater than called for in the original survey, the CHIEF JUSTICE ruled that where the bounds were ascertained the quantity was not material. He said he knew a case in New Castle County where the original survey called only for 400 acres and there was a recovery of 2200, and the whole land had since been held for 25 years under the recovery. The reason generally assigned for surveys containing more than specified was the proprietary policy which allowed this practice in order to accelerate the settlement of their lands.
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