Maryland Coal & Realty Co. v. Eckhart

• Decision Date: 08 April 1975
• Docket Number: No. 781,781
• Citation: 337 A.2d 150,25 Md.App. 605
• Parties: The MARYLAND COAL AND REALTY COMPANY v. Jonathan J. ECKHART et al.
• Court: Court of Special Appeals of Maryland

Page 605

25 Md.App. 605

337 A.2d 150

The MARYLAND COAL AND REALTY COMPANY v. Jonathan J. ECKHART et al.

No. 781.

Court of Special Appeals of Maryland.

April 8, 1975.

Certiorari Denied June 25, 1975.

Hugh A. McMullen, Cumberland, with whom were William H. Geppert, Geppert, McMullen & Paye, Cumberland, on the brief, for appellant.

G. Douglas Reinhard, Cumberland, Marvin I. Singer and J. Michael Lawlor, Baltimore, with whom were Robert L. Sullivan, Jr., Sullivan, Wiesand & Singer, Baltimore, on the brief, for appellees.

Argued before ORTH, C. J., and DAVIDSON and LOWE, JJ.

LOWE, Judge.

That 'any person may obtain a patent for vacant land' from the State may come as a surprise in this day and time. ¹ The authority is the vestige of a thriving real estate business conducted centuries ago and inherited from our British progenitors. As recently as 1972 the Maryland General Assembly completely revised the land patent procedures 'to provide a simple and convenient method for obtaining such patents.' Laws of Md.1972, Ch. 349.

The State's authority to patent lands derives from its sovereign heritage. In 1631 the royal charter of Charles I granting what is now Maryland to George, Lord Baron of Baltimore, 'authorized (him) to create manors, with courts baron and all things appertaining to them, with views of frank-pledge, etc. Charter of Md. sec. V, XVIII and XIX.' J. Brewer and L. Mayer, Land Office in Maryland (1871) at 1. Maryland was then in the nature of a grand-fief or honor, held by tenure of 'free and common socage' ² whereupon the Lord Baltimore presented 'to the King two Indian arrows annually' in petit serjeanty ² and 'the power of sub-infeudation was expressly conferred.' Matthews v. Ward, 10 Gill. & J. 443.

This power was exercised by the different 'Lords Proprietary,' the sale and leases of their land forming the principal portion of their resources. Consequently beginning around 1680 the Land Office became the principal office of the Province. See generally Kilty, The Landholder's Assistant, (1808). ³

The first formal instructions given by the Lord Proprietor to his Land Council in 1684 substantially remain the basic procedure for petitioning vacant land by warrant of survey or contiguous vacant land by warrant of resurvey. Md.Code, Art. 21, Title 13, Land Patents (now Real Property Article, Title 13). Brewer and Mayer, supra, said at 2-3:

"The Land Council is first authorized to give, grant, lease or otherwise dispose of all land escheatable for want of heirs. Any error made by surveyor or clerk in certificate or patent, to be corrected, rectified and amended, as the case shall require.

'Any person owning two or three or more tracts of land contiguous or adjoining, upon application the Land Council may grant special warrant to resurvey or to lay out the same into one entire tract and grant patent for the same.

'May grant land of an alien, not naturalized, that may escheat to the Proprietary.

'Where it hath been discovered or made known to the Land Council that any grant hath been illegally or surreptitiously obtained, the Land Council are required to order scire facias to issue forth out of the Chancery Court of Records to the patentee or other present owner and possessor, to show cause why the same should not be vacated.

'Should the Land be adjudged and condemned to the Proprietary for the reasons aforesaid, then the Land Council may, by letters patent or otherwise, give, grant or dispose of the same to the discoverer thereof.

'The Land Council may, upon the death of the Surveyor-General, extend or continue any special warrant or warrants of re-survey.

'They cannot grant any patent for any tract of land that is part or parcel of a greater tract formerly granted.

'Authority is given to the Land Council to sign all patents legally obtained and affix the great seal."

For Full instructions see Kilty, supra, at 112-117.

The process survived the Revolution as evidenced by Chapter 15 of the Act of General Assembly, April Session, 1777. This Act manifested the legislative intent that the business of the Lord Proprietor's Land Office, in respect to lands not yet granted, be assumed by and carried on under the authority of the State, rather than the Proprietary. The importance of the land office was further enhanced by the Acts of Assembly, Laws of Md., October Session, 1780, Chs. 45, 49 and 51, whereby all property of British subjects was declared confiscated for use by the State.

Although the land office was divided to accommodate the citizenry by an office and Registers on each side of the bay, the judge of the Land Office on the Western Shore was, from a very early period, the Chancellor of the State. Following the adoption of the Constitution of Maryland in 1850, a more explicit and comprehensive procedure was enacted under the administration of Governor Enoch Louis Lowe. ⁴ It expressly authorized the Commissioner of the Land Office to issue patents for lands, especially those lands confiscated from British subjects. Included, presumably, was Sir Robert Eden who, as Governor of the Province, was the last representative of the Lord Proprietary when the differences with Great Britain culminated in the act of formal separation by the Colonies, declaring themselves to be independent states.

THE PROCEDURE

Although the procedural particulars have been changed from time to time, the general procedure, sufficient for our purposes here, has not. 'The land office has always been, as it now is, the general market in which all public lands have been offered for sale; and into which any one capable of holding real estate might come and purchase according to the prescribed rules and terms of sale . . .. If the rules of the office were complied with, and the purchase money paid, a grant for the land was issued as of course, otherwise not.' Baltimore v. McKim (1831), 3 Bland. 453, 455-456.

Any person desiring to take up vacant lands would apply to the Commissioner of the Land Office for a warrant of survey or resurvey, directed to the County Surveyor ⁵ requiring him to survey the vacant land in question. After the surveyor returned the certificate of survey it was required to remain in the Land Office for six months during which time the claim was subject to caveat. If none was filed and the 'whole composition or purchase money' has been paid, the applicant or successors in interest was entitled to a patent to the land. Obviously there were prescribed procedures for public notice required which varied over the years. Once the patent emanated properly signed by the Governor and sealed by the Great Seal of Maryland, no caveat could thereafter be entered. Steyer v. Hoye, 12 Gill. & J. 202 (1841).

A caveat is the procedure to oppose issuance of a patent by the Land Office. It serves as a warning to the Commissioner not to put the seal on a patent for a tract of land as prayed. A caveat unheard or unacted upon was permitted to continue no longer than twelve months, Acts of 1797, Ch. 114. The grounds upon which a caveat could be entered included a showing that no grant ought issue because it would be unjust to the public or to some individual. Upon the filing of a caveat the Commissioner would assign the cause for hearing.

Since a patentee could only take subject to all prior claims, encumbrances and equities, the decision on a caveat was not conclusive of the right. Baltimore v. McKim, 3 Bland. at 459. For that reason, the general rule of the Land Office in doubtful cases was to let the patent issue, for if it were granted, the question thereafter could be brought before a court of law or equity to vacate the patent. Jones v. Badley, 4 Md.Ch. 167.

However in 1852 a right of appeal from the final decision of the Commissioner of the Land Office was permitted to the Court of Appeals by Chpater 361 of the General Assembly. In 1853, the Legislature assured the conclusiveness of the Commissioner's determination by declaring:

'That the court of the commissioner of the land office, is hereby erected into and declared henceforth to be a court of record, with the same powers to preserve order, punish contempts and enforce obedience to the proper order and adjudications of the said commissioner, as are now possessed by any court of record of this State.' Laws of Md., 1853, Ch. 415.

HE THAT HATH LAND, HATH WARRE AT HAND ⁶

To avoid the confusion of multiple praenominae by tracing title to the land in dispute, we will adopt the procedure of using 'appellant' and 'appellee' to include their predecessors in interest when appropriate. For those more precisely inclined we have appended our title notes grudgingly extracted from the record.

It would appear that in 1809 appellee patented two claims of vacant land-'Hope in Prospect' and cStoney Bottom,' part of which was continguous to the then vacant land which is now in contention. In 1839 appellant patented a tract of over 4000 acres which appears to have included the land in question and which appellant entitled 'Mark Amended.' The 1839 patent was not introduced as evidence in this case but was subsequently offered as 'newly discovered evidence' in a Motion for New Trial. Appellant's patentee, however, was referred to in the 'being' clauses of deeds dated 1852 which were introduced below by appellant as the source of its title. Motion for New Trial on the ground of the 'newly discovered' patent was denied by the chancellor below, which denial is contended by appellant as an abuse of his discretion.

In 1848, four years prior to appellant's deeds, appellee applied for a warrant of resurvey which proposed to encompass all of 'Hope in Prospect' and 'Stoney Bottom' consisting of 369 acres which had been acquired in 1809, and the adjacent 'vacant' land consisting in itself of 776 acres. The newly formed tract was to be called 'Gerrard.' That patent petition was all but concluded when the petitioner died. He had paid the 'whole composition or purchase money,' had been...