Bayard’s Notebook, 196.[*]
Court of Common Pleas of Delaware, Kent County.
May 15, 1797.
May 15, 1797.
The lessor of the plaintiff rested his title upon a patent from the State, the land being granted to him as vacant. The defendant showed a survey dated 13th December, 1749, made by William Killen for one Samuel Johns, under whom the defendant deduced a title to the lands in question.
William Killen, being sworn as a witness, said the survey had been made by him at the time of the date, which was a few months after he was appointed Deputy Surveyor of Kent County. That he had no knowledge of any warrant having been
Page 439
granted for the land, that the survey had been made by him not as a public but a private surveyor, but that warrants were sometimes granted on such surveys. He produced and read a regular certificate of survey dated 14th December, 1759,[1] which called for land [of the] late Samuel Johns, the land in question.
Upon this case two grounds of defense were relied upon for the defendant. First, that possession being forty-seven years gave the defendant a good title to the premises. Second, that time and circumstances would justify the jury in presuming a grant or warrant for the land, and in support of this last position were cited: 12 Vin.Abr. 56, pl. 2, 3, 58, pl. 11; Gilb.Evid. 27; Cowp. 102, 108, 109; 1 H.Bl. 459; 4 Term 468.
PER CURIAM.
As to the first ground of defense we have often ruled and are still of opinion that the plaintiff is not barred by length of time, if the land were vacant at the time of the grant. It must be taken that persons in possession of such land hold it in order to preserve the possession for the State. Besides, the qualified preference given by the Act of Assembly [2 Del. Laws 1162] to such possessors shows that the law did not consider mere possession as a title and expressly subjects the land to the grant of the State unless the person in possession conforms to the terms of the Act.
As to the second point relied on, we conceive that it is within the discretion of the jury from the time and circumstances of the case to presume a grant of the land. We do not say the jury are bound to presume a grant for the land, but that they may presume one if the time and circumstances satisfy them that a grant ever was made.
Jury gave a verdict for defendant.
Bayard for plaintiff. Ridgely for defendant.