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should be shown to such purchasers by regranting on the terms of the purchase what they or their assigns have actually cultivated, and by repaying a proportion of the consideration money for the rest.
4th,—Whether such patents as were drawn up and signed with blanks, and not registered in the secretaries' office for some years afterwards, shall be deemed good; 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, though 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 bow far or within what time such registry is necessary to the validity of such grants, nor for how long it was neglected, we cannot form any judgment what influence that will have upon the patents.
5th,—Whether such patents as were given out without any description of the boundaries, and not preceded by regular surveys, returned into the secretaries' office, are to be deemed valid?
We are of opinion, that the want of a description of the boundaries, or of preceding 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 deemed 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 there having been warrants many years before the grants issued is not, of itself, sufficient to support grants that would otherwise be irregular and void; though upon the general question of fraud, that circumstance may probably be of some service to the grantees, according to the particular circumstances of each case, whether such grants issued before or after the year 1727.
7th,—As it is alleged by the Governor 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 words of the said grants, has not the Crown power to re-survey such lands; and, in case any fraud 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 the words of a grant made since the 1st of January, 1727, is liable to have the same re-surveyed on behalf of the Crown. But, as to grants made before 1727, upon surreys actually made, we apprehend (if they were otherwise good in law,) they are excepted by the Act 2 Geo. 2, out of the sale to the Crown, and therefore not liable to be now re-surveyed; and as to such cases wherein a re-survey 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 qwere), isby an information of intrusion in the proper Court of the province, and in case of error there by appeal to his Mjajestv in Council.
February 11, 1737. J. Strange.
(7.) Joint Opinion of the Attorney and Solicitor General, Sir Philip Yorke and Charles Talbot, on Grants that are void for Uncertainty. 1730.
To the Right Honourable the Lords Commissioners for Trade and
May It Please Youb Lordships,—In obedience to your Lordships' commands, signified to us by letter from Mr. Popple, informing us that your Lordships having had under consideration several palxirs relating to the settlement of Carolina, and observing that some grants were made by the late Lords Proprietors of large tracts of land without any limitation therein as to the place where or time when the said land is to he taken up and seated; and transmitting to us the enclosed copy of a grant of that kind made to Sir Nathaniel Johnson in 1686, which hath never yet been put in execution, together with the enclosed copy of the original grant from the Crown to the Lords Proprietors of Carolina, for our further information; and desiring us to consider the same, and report our opinion, in point of law, whether such grants are legal and of force? We have considered the patent, whereby the said Lords Proprietors did grant to Sir Nathaniel Johnson the honour and dignity of a Cassique, cum duabus baroniis quorum singula contineat duodecim mUle acras terrse; and are of opinion that, in regard, the place where the said lands lie is not described, nor any method provided by which the same may be ascertained, such grant of the two baronies is, by reason of the uncertainty thereof, absolutely void in law.
July 28,1730. C. Talbot.
(8.) Joint Opinions of Mr. Fane, and of the Attorney and Solicitor General, Sir John Willes and Sir Dudley Ryder, on the Question of Taking Lands, under Old Grants, from the Proprietories of Carolina. 1734.
To the Right Honourable the Lords Commissioners of Trade and
May It Please Your Lordships,—In obedience to your Lordships' commands, signified to me by Mr. Popple, desiring my opinion, in point of law, whether the townships of Purrysborough, in Carolina, being, pursuant to his Majesty's instructions, set out for the use of certain people; and his Majesty having declared that all the land within six miles thereof shall not be taken up by any person claiming a right under old grants which have not been taken up, shall not be deemed such an effectual takiug-up of the said land for his Majesty's use as to invalidate the claim of any person who shall, subsequent to the said instructions and proclamation, take up land there. And, I humbly certify to your Lordships, that 1 think the grantees of the late Lords Proprietors, under the general power granted to them, of taking such quantities of laud in such places as they shall think fit, since they neglected to do it previous to his Majesty's instructions and declaration, shall not now be permitted to pitch upon lands already settled, but
July 23, 1734.
The grant being general of 12,000 acres of land, and the same being not described therein, nor ascertained by any survey before the proclamation of Governor Johnson, we are of opinion that such grantee cannot now take up lands within six miles of Purrysborough. For the right of the Lords Proprietors is now vested in the Crown, and such general grant could certainly not have prevented the Lords Proprietors from making subsequent grants of any particular lands, provided there was still sufficient land left to satisfy such precedent grant; and yet this would be the necessary consequence if such general grantee might, at any time before his lands are let out, take them wherever he pleases, and disturb the possession of any subsequent grantee. This would not only be a great invasion of his Majesty's right, but would create very great confusion, and would tend very much to the disturbance of the
(9.) Joint Opinion of the Attorney and Solicitor General, Sir William GArrow and Sir Samuel Shepherd, on the Power of the Crown to alter the Tenure of Lands in Canada.
My Lord,—We have had the honour to receive your Lordship's letter, dated the 18th instant, transmitting to us the copy of a despatch addressed by your Lordship to the Governor of Canada, and of the reply which has been received from Sir J. Sherbrooke, relative to the power of the Crown to accept the surrender of lands granted to individuals in Canada for the purpose of regranting them in free and common soccage; and your Lordship is pleased to desire that we will take the same into our consideration, and report to your Lordship our opinion whether there is, either under the statute of the 31 Geo. 3, c. 31, or under the law originally
peace of the country. August 12, 1734.
2, Lincoln's Inn, January 22, 1817.
prevailing in the province, as referred to in the minutes of the Executive Council, any legal objection to changing the tenure of land in Canada in the manner recommended?
In obedience to your Lordship's commands we have considered the same, and we beg leave to observe that if it iias. jntended. to change the tenure of any lands without the consent or desire of_ the persons possessing such lands, or at once to effect a general alteration of tenure, there is no doubt that it could not be done without an Act of the legislative bodies, with the Msent of Jiis1^_ Majesty; but the question is, whether, if lands are surrendered to his Majesty, and thereby become revested in the Crown, his Majesty may not* by virtue of his prerogative, grant such lands to be hoi den by a tenure different from that by which they were formerly holden (provided the tenure on which they are so regranted be one which is lawful in the province). That a man holding of the Crown may surrender his land to the Crown of whom he holds, we conceive to be clear, and also that the Crown may regrant them upon such terms or tenure recognized by law as shall seem fit, unless restrained by some law or Act of Parliament. Looking at the British Acts which relate to the province of Canada, we do not find any such restriction of the royal prerogative as applicable to this case. By the 14 Geo. 3, c. 83, the title under which any lands were then holden was not to be affected by that Act, but was to remain as if the Act had never passed. But by the same Act a power to grant lands in free and common soccage by the Crown is recognized, because after the 8th section has directed that the laws of Canada shall be the rule of decision in all matters of controversy relative to property and civil rights, the 9th section provides that such provision shall not extend to any lands that have been or may be granted by his Majesty in free and common soccage. This statute imposes no restraint on the ordinary rights of the Crown, but merely leaves all subsisting tenure unaffected by that statute. There is, by the 43rd section of the 31 Geo. 3, c. 31, a restriction of the prerogative as to the tenure on which lands shall be granted in Upper Canada, because by that section his Majesty can only grant lands in free and common soccage; and all the consequences which follow such tenure by the law of England must follow such tenure in Upper Canada.