Page images
PDF
EPUB

BODųZY

v. TAYLOR.

it. Admit that the complainants can find their beginning, the letters I. I:, it does not affect the ques. tion whether this artificial geography can be a good location. We may find what we hide, but what we can hide is not a geographical feature in the face of the country. An object taken as the basis of an entry ought to be such as a person acquainted with the country might have known before the entry was made.

The defendant's entry had not been surveyed when the complainants' entry was made. It had not then mistaken its area, as the decree now contends. It was a good entry, as the decree admits.

Being good, the title to the land it covered was vested in the defendant, not liable to be re-entered, and not capable of being devested by a younger entry. The younger entry therefore was void as to this vested title. Being void, it could only be made good by a survey and patent. The elder. entry, if originally void also, is made good by the same means.

If the defendant has no title, so far as his entry was void, the complainants can have no title so far as theirs was void; or if subsequent events could perfect theirs, the same events could perfect his.

If the complainants have the eldest survey for the lando said by the decree to have been within the de. fendant's entry, he has the eldest for those said to be within theirs.

The parallel in the cases is complete, but the de. cree has not seen it. It has given the complainants the land they claim of the defendant, and also that which the defendant has a right to claim upon the same principles.

Is an entry, a survey, or a patent, the basis of a title? The incipient and the final step, the entry and the patent, are for the defendant. The complain. ants have the eldest survey as to the 10,000 acre entry But acither the survey nor its registry can

BODLEY

TAYLOR

give priority of title. The incipient and the final act being in favour of the defendant, equity will not deprive a fair purchaser of the advantage, in order to do him wrong.

The law directs an endorsation on the patent

" that the patentee has title.” The decree declares “ that his title shall depend on parol testimony for 10, 13, or 20 years."

How far courts of equity are bound by the positive law, is still a question. Whether, with the courts of Virginia, they will stop at the case of fraud or accident having prevented the institution of a caveat, followed speedily by an application to equity for relief, or whether they will examine, during 20, 30, or 100 years, every circumstance capable of being examined by caveats, is to be the precedent.

The law and equity of the case are so intimately blended, that in discussing the one, much of the other has been anticipated.

Two grounds of equity are set up by the complainants.

1. An irregularity in the defendant's survey. They make no objection to his entry, and by charging the survey with non-conformity, they admit that the entry may be conformed to; they pretend also to show in what manner.

2. That one of their surveys was first made, returned and registered.

The defendant on his side claims equity too:

1. From length of time. Though courts of equity are not bound by acts of limitation, in some cases, they are in others. There must be some ingredient to take a case out of an act of limitation,

BODLEY

after it has fallen within it. The caveat process is an act of limitation.

[blocks in formation]

Even in cases most deemed by equity to fall under the strict letter of laws of limitation, courts of equity, in computing a reasonable lengih of time, will respect such laws as. legislative computations founded in reason.

Written testimony is supposed, by the laws of Virginia, to be a reasonable object of confidence, until twenty years have expired. Precedents in chancory have diminished this term to eighteen. Oral testimony maintains its credibility in some cases for five years, in others for a shorter term, and in contests capable of being tried by caveat, for six months only. This computation is made upon the partieular circumstances inimical to such testimony in every case. These circumstances induced the legislature, in cases of caveat, to refuse credibility to oral testimony for more than six months. But the complainants demand it for twenty years.

2. The defendant claims equity from the surveyor's negligence, in not having surveyed with the regularity required by law.

The law is imperative that he should give notices.

· Except for this breach of duty in the officer, the defendant would have surveyed and patented before the complainants entered. And a survey and patent could not have been destroyed by a subsequent entry.

Equity considers that as done which ought to have been done. The neglect of the surveyor was a real injury to the defendant, out of which grew not a real injury, but the semblance of an injury to the complainants. If the first neglect had not happened, the case of the complainants would have been just as it now is. If by that neglect they had obtained an unjust advantage over the defendant,

[merged small][ocr errors][merged small]

even. a caveat, or at least a suit in chancery, would have relieved him. Can they be injured by not obtaining, from this neglect, that which both law and justice would have taken from them? The defend. ant has in fact the eldest equity as well as the eldest patent.

3. The third ground of the defendant's equity is, that the complainants have gotten better land belonging, as they say, to the defendant, and, therefore, have suffered no injury : that they are bound by their acquiescence ; and that it would be unjust to make an exchange now, .as it would deprive the defendant of his old patent, and, possibly, involve him in more litigation.

The following cases were cited in behalf of the original defendant, viz.

On the question upon the construction of the entries :

Hughes's Rep. 110. 124. Kenny v. Whitledge. Hughes's Rep. 14, 15. Puwling v. Mereweather. M$. Foknson v. Naul. MS. Fones v. Craig. Hughes's Rep. Jackson & Owens v. Whitaker & Wife, and Wurd v. Kenton & Fox. MS. Speed v. Lewis. MS. Drake v, Rumney. Hughes's Rep Ramsay & Logie v. Drake. Bryant v. Owens & Wallice. Sneed's Rep. 9. Wilson v. Speed. Id. 396. Frazier y. Steele.

And upon the question of jurisdiction : Hughes's Rep. 2. 181. 1 Wash. 116. 2 Wush. 48.

Argiroment for the original complainants.

All the good lands in Kentucky are subject to at least two contending entries. In this case 'Taylor had the first entry, but,Bodley had the first survey.

As to the question of jurisdiction, it has been long settled as a good ground of equity that the deEendant had obtained a legal title to which the plain. BODLEY tiff had a prior or better equity; and a court of Tarios. law could not sustain an equitable against a legal title.

If the plaintiff shows an equitable title, the de.. Eendant must not only show his legal title, but he Dust support it by an equity equal at least to that of the plaintiff; for io equity the legal estate stands for nothing. Sneed's Rep. 43. 46, 47.

Quarles V. Brown. Consella v. Briscow. Swearingen v. Briscow. 1 Wash. 230. Hughes's Rep. 53. Fry v. Ezra. Id. 88. 92. Smith v. Evans, Id. 110. Greenup V. Coburn. Sneed's Rep. 32. South v. Bowles. Id. 52. Bradford v. Allen. Id. 130. Bruce v.

Taylor might have had a remedy by caveat if he would. But the remedy by caveat is or.ly a concurrent remedy. It is not a remedy which can apply. to all cases. A man may not know of a survey in time to enter his caveat.

The neglect of the process by caveat is no bar to relief in equity. Harwood v. Gibbons, MS. Myers v. Speed, Hughes's Rep. 97. Kenton v. M-Connell, Hughes's Rep. 140. Picket v. Bib, MS.

If the court has jurisdiction, the next question is, whether the complainants' entry is legal and suffieiendy certain.

Two questions arise.respecting every entry: 1. Is it sufficiently specific? 2. Is the same land surveyed which is described in the entry?

It is sufficiently specific if the land can be found by a reasonable search. At the time of the complainants' entry, nothing was more notorious in Kentucky than a lick and a buffalo-road. There is a difference where a distance is mentioned only to lead you to a part of the country where you will find a specific object which is described as the beVol. V.

Еe

« PreviousContinue »