Note B, Lapsed Lands under the Former Government

IN all the patents for lands in Virginia granted under the authority of the crown of England, there was a condition that the same should be seated and planted in a particular manner, within three years from the date of the patent; and a farther condition, that the lands should be forfeited, in case the quit-rents reserved in the patent should not be paid for the like space of time. And, in case of failure in either instance, any other person who should first petition the governor of the colony for the same, setting forth in his petition in what county the land lay; to whom it was formerly granted; for what cause it had become forfeited, and in what county the grantee resided, and filing a copy thereof in the secretary’s office, might thereupon obtain a writ, directed to the sheriff of the county where the grantee resided, summoning him to appear at the next general court, to show cause why the land so become forfeited, should not be granted to the party petitioning for the same; which, if he failed to do, by making sufficient proof that the land had been seated and planted, or the quit-rents duly paid, as the cause of forfeiture alleged might be, the general court adjudged the lands to be forfeited and revested in the crown; which being certified to the governor, and also that the prosecutor in that suit was the first petitioner for the same, and had pursued his petition with effect, he became thereby entitled to a patent for the lands, in the same manner, and under the same conditions, as the former grantee. L. V. 1710, c. 13. Edi. 1733. 1748, c. 1.

And where any person intended to take up unappropriated lands, it was requisite that the same should be surveyed, and the survey returned to the secretary’s office by a sworn surveyor, duly commissioned, and the breadth of every tract so surveyed was required to be one-third, at least, in proportion to the length, except where the courses might be interrupted by rivers, creeks, or unpassable mountains and swamps, or by the bounds of other patented lands.¹ And if it happened, that the right of any other person was invaded by such survey, or if the same was not made according to law, the courses seem to have been, that the person disposed to contest the grant entered a caveat against issuing the same in the secretary’s office, and thereupon a summons issued to the person for whom the survey was made, to appear at the next general court, and defend his right to the lands, upon which nearly the same proceedings were had as in the case of a petition for lapsed lands.

When the revolution took place, by an act passed in May 1799,² the reservation of royal mines, of quit-rents, and all other reservations and conditions in the patents from the crown, were declared null and void; and that all lands thereby granted, should thereafter be held in absolute and unconditional priperty to all intents and purposes whatsoever; and farther, that no petition for lapsed lands shall be admitted or received on account of any failure or forfeiture whatsoever, alleged to have been incurred after the 29th day of September, 1775. Thus did this act at once put an end to petitions for lapsed lands, but at the same time it established and regulated the proceedings upon caveats; of which, as regulated by law at this day, it now remains to say something.

Every person desiring to take up lands in Virginia, and having a land warrant for that purpose, is to lodge his warrant with the surveyor of the county where the lands, or the greater part of them lie, and to direct the location thereof so specially and precisely, “as that others maybe enabled with certainty to locate other warrants on the adjacent residuum,” which location is to bear date on the day it is made, and the priority is to be given by the surveyor to the first applicant. The survey being made pursuant to the directions of the act, the party, within twelve months at farthest, (which period has been from time to time extended) is to return the plat and certificate of survey into the land office; and if he fails to make such return in due time, or if the breadth of the plat be not one-third of it’s length, any other person may enter a caveat in the land office, against issuing any grant upon such location or survey; expressing for what cause the grant should not issue: or if any person obtains a survey of lands to which another has, by law, a better right, the latter may enter a caveat in like manner to prevent his obtaining a grant until the title can be determined; but the caveator must, in his caveat, express the nature of the right in which he claims the lands. He is then to take, from the register of the land office, a certified copy of his caveat, and within thirty days afterwards must deliver it to the clerk of the court of the district or county in which the land lies; he must, moreover, obtain from the surveyor of the county, or from the register of the land office, a certified copy of the survey and plat, which, within thirty days after entering the caveat, must be delivered to the clerk of the court where the suit is instituted; and, on failure in either of these instances, the caveat is void. The clerk, on receiving the same, is to enter a copy of the caveat in his books, and issue a summons reciting the cause for which the caveat is entered, and requiring the defendant to appear on the first day of the next court and defend his right; and on such process being returned executed, the court is to proceed to determine the cause in a summary way, without pleadings in writing, impaneling, and swearing a jury for the finding such facts as are not agreed by the parties.

A copy of the judgment, if in favor of the defendant, is to be delivered to the register of the land office, and thereupon die caveat is vacated; but, if not delivered within three months, a new caveat may for that cause be entered. But, if judgment be given in favor of the plaintiff, upon delivering the same into the land office, together with a plat and certificate of the survey, and also producing a legal certificate of new rights on his own account, he shall be entitled to a grant of the land; but on failure thereof for six months, after the judgment in his favor, any other person may enter a caveat, for that cause, against issuing a grant; upon which subsequent caveats the same proceedings are to be had, toties quoties, as upon the original. If judgment be given for the defendant, he is entitled to his costs, if for the plaintiff, the court in their discretion may award costs. The court may like wise rule the plaintiff to give security for costs, and, if he fails, dismiss his suit. If a summons upon a caveat be either not returned at all, or returned not executed, the caveat shall be dismissed with costs by the court, unless they shall be satisfied that it does not proceed from the neglect of the party entering the caveat. A practice having prevailed of entering friendly caveats, without any intention of prosecuting them, it is moreover necessary that the party entering a caveat shall file an affidavit with the register; that the same is really and bona fide with intention of procuring the lands, and not in trust for the benefit of the person against whom it is entered; and all caveats entered contrary to the directions of the act, are void. L. V. 1794, c. 86.

Such is the nature of this suit, and the proceedings therein. We may perceive, that it bears a distant resemblance to a proceeding of the same name in the spiritual courts in England, to stop the institution of a clerk to a benefice, or the probate of a will, etc. In the latter case, the caveat stands in force for three months, and is a caution (caveat) to the ordinary, that he do no wrong; so in this instance of which we have been speaking, it is a caution to the register not to issue an unlawful patent;³ and the suit consequent thereupon between the parties, is for his final government in that respect.

It was difficult to assign to this note a proper place in the Commentaries. I have chosen to annex it to the chapter which treats of suits by which the right to lands is to be decided.