Case of the Blank Patents in North Carolina with some Queries & the Opinion of the Attorney & Solicitor General thereupon.
When the soil of North & South Carolina was by Charter or Grant vested in the Lords Proprietors they impowered their Governors under certain Regulations & Restrictions to dispose of Lands and to give Grants for them under their Seal, the money to be applied according to their Directions; As the Lords Proprietors found by Experience that an ill use was made of these Powers, on or before the year 1724 they ordered their Governour in North Carolina to shut up the Land Office which was a Prohibition to the Governor from granting any more Lands unless by order of their Board in London, and in that Case the lands sold should be at Twenty Pounds sterl: per thousand Acres the money to be paid to their Lordships in London. When notice was given of this in the Colony the People complained much of the Lords Proprietors advancing the price of Lands upon them, and the Officers appointed by the Lords Proprietors thought themselves much injured by this Regulation as they imagined it would prevent the sale of lands, their Salaries being paid from that Fund, however this Prohibition to grant or sell Lands in North Carolina was never removed untill the Crowns purchase notwithstanding of which some leading Men in the Province & Officers of the Lords Proprietors combined together and by a long train of
Artifices and Threats prevailed upon the weaknesses & necessitys of Sir Richard Everard (thō it was never pretended that he had any more power than his Predecessors to grant lands) to sign Patents with the Consent of Council upon various Pretences, the principal of which was in the year 1728 when the Boundary Line was run between North Carolina & Virginia, he granted Patents for lands at the rate of Twenty pounds per Thousand Acres in order to pay such persons as were concerned in running the Line by the sale of those Lands the money to be paid them in consideration of their Trouble & Expence in running the Boundary Line amounted to no more than Two Thousand Pounds Ster: so that in course he ought not (provided he had had a Power) to have issued Patents for any more than one Hundred Thousand Acres of Lands but under the Colour of that there were Patents issued for four Hundred Thousand Acres, The Boundary Line between North Carolina & Virginia was finished in Novr 1728 the King purchased that Province in July 1729 most of the Patents issued by Sir Richard was after the Kings purchase, but before any Govr appointed by the Crown arrived in the Colony.The aforesaid Patents for four hundred thousand Acres were granted by Sir Richard Everard in the most open and barefaced manner, being drawn up in form signed & sealed, But the persons names, the number of acres, and Description of the Boundary and the sums paid for them were left in Blank & remained so in the Secretaries Office, from whence they were issued disposed of and filled up, just as the Lords Proprietors Officers thought fit; It is to be remarked here, that besides the Original defect of the Govrs not having Power to Grant such Patents they were deficient in all the Forms requisite being taken out of the Office with the Date, the Persons Names the situation of the Lands, number of acres & purchase money some or all of these left in Blank, that many of the Dates have been filled up even since His Majesty's purchase and that few of them are preceeded by regular Surveys returned into the Secretarys Office which is a thing that ought to be observed in the strictest manner as there is no other way of detecting Frauds and preventing many Inconveniences that naturally attend it.
What the People of the Colony have to alledge in their Vindication is that most of them have paid a value for those purchased Patents (as they term them) either by taking them out themselves or holding them by Mesne conveyances that if the Lords Proprietors servants exceeded their Power it would be very hard upon them to loose their Property in the Lands, that thō these lands are sold in the manner above described contrary to the orders of the Lords Proprietors yet their Lordships very well knew what their Officers were doing, the Minutes of Council being
transmitted regularly to them, and that the money was applyed to their use, which as the people alledge their Lordships did not signify their displeasure at; that some of the Patents granted after the Land Office was shut, was by virtue of Warrants formerly issued by the Lords Proprietors Officers which had lain by for a considerable time, That it was at all Times the Practice of the Colony for the Governor to sign Patents or Grants with Blanks to be filled up, and that they judged it only necessary to mention the consideration money number of acres reserved, Rent and Date, but whether the persons names were inserted on the exact Disscription of the Lands, they did not think it necessary before Registring them, that being the last thing requisite to make them perfect, that when the Lords Proprietors sold their Property in the soil to the Crown there was a Clause inserted in the Act for the sale of the two Provinces of North and South Carolina, that all Patents dated before the 1st of January 1727 being granted, conveyed in any Grants, Deeds Instruments or Conveyances under the Common Seal of the said Lords Proprietors either in England or the Province aforesaid should remain Good.The Governor in answer to these assersions of the People alledges, that they obtained their Patents by a shamefull collusion with the Lords Proprietors Officers which plainly appears from their Patents being taken out of the Office, with Blanks to be filled up that they were not preceeded by regular surveys returned into the Secretaries Office which is an (essential requisite) that many of the Dates have been filled up since his Majesty's Purchase the original Records from whence they are supposed to be Extracted plainly shew this for upon Inspection it appears that many Patents of the Dates 1725 1726 & 1727 are there placed after Patents of 1729 & 1730 That by such means they may still have it in their Power to take up Lands, that the People of the Colony cannot with any Colour of reason plead ignorance as it was publickly known that the Lords Proprietors had by repeated Orders directed their Governours not to grant any more lands, & that the principal reason of this Prohibition was on Account of the Frauds they committed in issuing their Patents, that by those Fraudalent methods they have engrossed all the rich lands at the entrance of the Rivers by which means new settlers are much discouraged in being obliged to purchase those Lands from them at exorbitant Prices, that if it is his Majesty's pleasure to give them the preference in taking out new Patents for their Lands subject to the Quit Rents of four shill: Proclamation Money per Hundred Acres he thinks they have no occasion to complain, that thō the Lords Proprietors did in the sale of the said two Provinces of North and South Carolina to the Crown, confirm such Grants as we made under the Common
seal of the Lords Proprietors yet we could not imagine that it was intended to confirm any Grants, Deed, Instruments & Conveyances which were originally Null & Void and which they might date whenever they pleased, especially when it was declared in the next Clause, that this exception shall not extent to nor include any forfeited Grants nor any Rents Signories or Rights of Escheats reserved upon and incident to any such Grants.N. B. The Quit Rents of most of the Patents under the Lords Proprietors are at 6 Pence and one shill: per hundred Acres. The Quit Rents under the Crown are at four shills Proclamation Money per hundred Acres str: Q. Whether any of the Patents Granted after their Lordships had ordered the Land Office to be shut up can be deemed valid other than such as were granted by Order in London.
We are of opinion that such patents may be good notwithstanding that order to shut up the Land Office If the Lords Proprietors were either made privy to those Grants or after they were made Received the Confederation for them otherwise we think they cannot be supported.
2d. Whether such Patents as were granted after the Kings purchase by the Lords Proprietors Governour before the new Governour's arrival from the Crown particularly such as appears to have been entered in the Secretarys books after advice received in the Province of the Kings purchase are to be deemed good.
We are of opinion that none of the Patents mentioned in the 2nd Q. can be deemed good.
3rd Whether as the Act of Parliament made upon the Crowns purchase from the Lords Proprietors, that clause in it that was for quieting Possessions of Grants takes notice of such only as bore date before 1727. If it does not give room for a strict examination into all such as were issued subsequent to that time, and if such Grants appear to have been irregularly made they ought not to be voided but as to such as were granted for defraying the Expence of running the Boundary Line, if the Crown in such case ought not to bear that Expence.
We think it proper to observe that the clause referred to in this Q. does not put it upon the Patents bearing date but being actually made before 1 Janry 1727 & considering the extraordinary circumstances attending these Grants and that the Crown had no notice of them at the time of the purchase there is great reason for a strict inquiry into the validity thereof, and to avoid them from such Irregularities. But as those that were granted for defraying the Expence of the boundary line seem to stand in a much more favourable Light we think it reasonable some indulgence should be shewn to such purchessors, by regranting on the
Terms of the purchase what they or their assigns here actually cultivated and by repaying a proportion of the consideration money for the Rest.4th Whether such Patents were drawn up and signed with Blanks and not registered in the Secretaries Office for some years afterwards shall be deemed good and if their not being registered is not an Evidence of Fraud.
We are of opinion that in general such Patents as were executed with such Blanks as are mentioned in the Case thō filled up afterwards are void; But if they have been attended with a long possession and not obtained fraudulently or irregularly in any other respect we think they ought to be now supported: and as to the circumstance of not being registered in the Secretaries Office for some years afterwards, it not being stated how far or within what time such registring is there necessary to the validity of such grants, nor for how long it was neglected we cannot form and Judgement what influence that will have upon the Patents.
5th Whether such Patents as were given out, without any discription of the Boundaries, and not preceeded by regular surveys, returned into the Secretaries Office are to be deemed Valid.
We are of opinion that the want of a Discription of the Boundaries or of preceeding regular Surveys is not of itself sufficient to destroy such Patents unless such circumstances were the known Requisites necessary to such Grants, and even in that Case if the Proprietors have had the Consideration and the Lands have been enjoyed accordingly without Fraud we think such Grants ought to be declared Valid.
6th Whether those Grants issued by Virtue of Warrants that had lain by many years are to be deemed good notwithstanding the Grants assigned them were taken out irregularly and particularly those after 1727.
We are of opinion that the circumstance of their having been Warrants many years before the Grants issued is not of itself sufficient to support Grants that would otherwise be irregular and void, thō upon the general Question of Fraud that circumstance may probably be of service to the Grantees according to the particular circumstances of each case and whether such Grants issued before or after the year 1727.
7th As it is alledged by the Governour that many of the People that hold lands by virtue of the Patents formerly granted under the Lords Proprietors Possess much greater Quantities than they ought to hold by the said Grants, has not the Crown a power to resurvey such lands and in case any Frauds should appear what steps must the Crown take to recover its right.
We are of opinion that whoever possesses a much greater Quantity than they ought to hold by words of a Grand made since 1 January 1727 is liable to have the same resurveyed on behalf of the Crown But as
to Grants made before 1727 upon surveys actually made we apprehend (if they were otherwise good in Law) they are excepted by the Act 292 out of the sale to the Crown and therefore not liable to be now resurveyed. And as to such cases wherein a resurvey is proper and yet the Grants are valid in Law, we are of opinion that the proper remedy is by information in the name of the Attorney General of the Province in a Court of Equity there in order to have the real quantity set out and the excess pared off for the Benefit of the Crown.8th In case any of these Grants appear to be voidable in Law, what is the proper method to have the same vacated.
We are of opinion that the proper method for the Crown to recover its Right (except in the instances mentioned in the answer to the last Qr) is by an Information of Intrusion in the proper Court of the Province and in case of error there by appeal to his Majesty in Council.
11th Febry 173⅞