Bayard’s Notebook, 139
Court of Common Pleas of Delaware, Kent County.
May, 1796.
The plaintiff showed a proprietary warrant granted to Hugh Parke for 200 acres of land adjoining John Hausman and others directed to Nicholas Scull, Surveyor General, and by him to William Killen, Deputy Surveyor, dated September 1, 1750. It appeared by an indorsement on the warrant that on the 1st May, 1754, it was assigned by Parke to Mark McCall. The counsel for plaintiff then offered in evidence a survey made under the warrant by Samuel McCall, Deputy Surveyor of Kent, dated 18th October, 1776.
The counsel for the defendant objected to the admission of the survey upon the ground that the proprietary power ceased upon the 4th July, 1776, and that after that period the Deputy Surveyor could derive no authority under the proprietary. That the warrant was avoided by the resolution, and the execution of it absolutely void. And they insisted that the case was within the second section of the Act concerning vacant, etc. lands passed February 2, 1793 [2 Del. Laws 1077], which declared such survey illegal.
Upon the other side it was contended that the warrant was a located warrant, and the title to the land in question complete by the warrant without the survey. That the survey was designed not to aid the title but simply to ascertain the bounds. That the title being complete before the violation, it could not be affected by that event. But if the survey were necessary to complete the title, they contended that the express words of the eleventh section of the Land Office Act passed 19th June, 1793 [2 Del. Laws 1165], gave it the same validity as a survey made anterior to the Revolution.
PER CURIAM.
The Court have no doubt as to the admissibility of the evidence. The eleventh section of the Act referred to
Page 398
by the plaintiff’s counsel must remove any doubt that could arise on the subject.
Survey admitted.
The counsel for the defendants prayed a bill of exceptions, which was granted but not prosecuted.
Ridgely and Bayard for plaintiff. Read an Miller for defendant.