The opinion of the court was delivered by: The case as stated by Story, J. in delivering the opinion of the Court, was as follows:
ERROR to the Circuit Court for the district of Columbia,
This is an action for money had and received brought by the Plaintiffs as administrators of Charles Beatty, deceased, against the Defendant as administrator of David Burnes, deceased. The declaration alledges the promise to have been made in the life time of the respective intestates. The Defendant has pleaded the general issue, and the statute of limitations of Maryland.
Upon the trial in the Circuit Court for the district of Columbia, the Plaintiffs sought to support their action under the 5th section of the statute of Maryland, of Nov. 1791, ch. 45, concerning the territory of Columbia, and the city of Washington, that section is as follows:
'And be it enacted, That all the squares, lots, pieces and parcels of land within the said city, which have been or shall be appropriated for the use of the United States, and also the streets, shall remain, and be for the use of the United States; and all the lots and parcels which have been or shall be sold to raise money as a donation as aforesaid, shall remain and be to the purchasers according to the terms and conditions of their respective purchases.'
'And purchases and leases from private persons claiming to be proprietors and having, or those under whom they claim having, been in possession of the lands purchased or leased, in their own right, five whole years next before the passing of this act, shall be good and effectual for the estate, and on the terms and conditions of such purchases and leases respectively, without impeachment, and against any contrary title now existing; but if any person hath made a conveyance, or shall make a conveyance or lease, of any lands within the limits of the said city, not having right and title to do so, the person, who might be entitled to recover the land under a contrary title now existing, may, either by way of ejectment against the tenant, or in an action for money had and received for his use against the bargainor or lessor, his heirs, executors, administrators or devisees, as the case may require, recover all money received by him for the squares, pieces or parcels appropriated for the use of the United States, as well as for lots or parcels sold, and rents received by the person not having title as aforesaid, with interest from the time of the receipt; and on such recovery in ejectment where the land is in lease, the tenant shall thereafter hold under, and pay the rent reserved, to the person making title to and recovering the land, but the possession, bona fide acquired, in none of the said cases shall be changed.'
The Plaintiffs offered evidence, that on the 16th of April, 1792, Charles Beatty, the intestate returned into the land office for the Western Shore of Maryland, a certificate of survey dated on the 3d of April, 1792, and then paid the usual caution money for the land described in said certificate. On the 23d May, 1792, a caveat against the issuing of a patent for the lands on said certificate, was filed by David Burnes the intestate, which caveat was discontinued on the 23d of May, 1801, by virtue of a certain act of the state of Maryland. On the same day a patent issued from the land office to Charles Beatty for the land described in said certificate, which land is within the limits of the city of Washington, and was taken up by Beatty as a vacancy; but Beatty never had actual possession thereof, nor ever claimed to make division thereof with the city commissioners as an original proprietor pursuant to the statute of Maryland, 1791, ch. 45. In fact the same land had been held and claimed by David Burnes in his own right, for more than five years before the passing of the statute aforesaid, as included in the lines of a grant made as early as 1720. The Plaintiff offered evidence however that the land included in Beatty's patent, was without the lines of the land to which Burnes was, under his grant, really entitled, and that it was vacant land of the state of Maryland. The warrant, under which Beatty's patent was obtained, was, (before the location within the limits of Washington,) in part located upon and applied to other lands of the state of Maryland, not within the said city, or the county in which it was situate while belonging to Maryland. Burnes in his life time, and before the statute of 1791, ch. 45, made a conveyance of the land in controversy as an original proprietor to certain trustees for the purposes named in that statute, and received of the city commissioners on account of parts of the same land appropriated to city purposes, the sum of $7,343 82, in various sums paid between October, 1792 and June, 1796; and also received $1,000 on account of other parts of said land which he sold and conveyed to individuals. Burnes died in May, 1799, and administration of his estate was granted in Prince George's county, in the same year to his widow, who died in January, 1807. In April, 1803, administration of his estate was granted to the Defendant, by the Orphan's Court of Washington county, in the district of Columbia. Beatty died sometime before May, 1805, and in that month administration of his estate was granted to the Plaintiffs. The present action is brought to recover the money so received by Burnes, upon the ground that it was the proceeds of the sale and disposition of land included in Beatty's patent. No demand or claim was ever made by Beatty on Burnes or his administrators, in his life time, for the same money, although both parties from the year 1791, until their respective deaths lived within the limits of the district of Columbia and within two miles of each other–nor did the Plaintiffs ever make any demand or claim upon the Defendant until February, 1810. Under these circumstances the Court below were of opinion that the Plaintiffs could not sustain the action, and upon that direction the jury found a verdict for the Defendant.
F. S. KEY, for the Plaintiffs in error.
Two questions arise in this case.
1st. Whether the Plaintiffs have a good cause of action under the patent to Beatty, if not barred by the statute of limitations: and
2d. Whether the statute of limitations is a bar to the action.
1. As to the title of Beatty. The caveat by Burnes was pending when Congress assumed the jurisdiction over the district of Columbia, which was on the 27th of February, 1801. The patent did not issue until the 23d May, 1801, but according to the law of Maryland, adopted as the law of that part of the district of Columbia in which the land lies, the title has relation to the return of the certificate of survey and payment of the purchase money to the state, if the original warrant of survey was general–but if it was a special warrant, the title relates to the date of the warrant. That is to say, in either case the title relates to that act of the party which appropriates and locates a particular tract of land under a warrant of survey. Beatty had two warrants. The first was a special warrant for 80 acres, and was dated the 22d of April, 1971, before the statute of Maryland of 1791, which ceded the territory of Columbia to the United States. The other warrant was for 6 arces, and was dated the 26th of March, 1792. A special warrant contains the name of the county in which it is to be executed, and also such a location, or description of the land intended to be surveyed, as the party directs. It binds and secures the land, therein described, from the operation of other warrants, but it may be located any where else. A common warrant is for the number of acres required, 'not formerly surveyed for, nor cultivated by any person,' and is directed to any surveyor legally required. Kilty's Landholder's Assistant, 468.
Beatty's title relates (if not to the date of the first warrant) to the date of the return of the certificate of survey, and payment of the purchase ...