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ginning of a tract; and where the beginning is at the end of a particular line.
There must always be a general description, and a particular description.
It was not necessary that the marked trees should be notorious. You would be led to them by a reference to notorious objects, the blue licks, and the buffalo-road. Greenup v. Coburn, Hughes's Rep. 104. Carter. v. - Hughes's Rep. 182. Johnson v. Brown, Hughes's Rep. 60. Sneed's Rep. 105.
If the complainants' entry be sufficiently certain, the next question is as to that of the defendant.
The defendant's entry depends upon John Walden's, which depends upon Ambrose Walden's, which depends upon Peter Johnson's.
If Peter Johnson's be uncertain, the rest are uncertain.
Peter Johnson's 400 acres, being his settlement right, were to lie on the east side of the upper buffalo-road, and nine miles from the licks.
The beginning of the tract was to be nine miles from the lick, not the middle of the tract. The question then is, how is the survey to be made ? Are you to follow the meanders of the road to ascertain the nine miles, or to take a point nine miles distant from the lick on a straight line? Are you to follow the road in running the lines of the survey? It would be impossible to be accurate as to the meanders of the road. The buffaloes make generally a number of paths pot parallel to each other, sometimes approaching and again diverging, sometimes occupying a broad space which is all called the road; and they often meander so much, that after travelling nine miles you may not be a mile distant from the place of beginning. A distance upon a water-course is always measured in a straight line, without regard to the meanders of the stream. So we say it ought to be understood when speaking of a buffalo-road.
The whole of Peter Johnson's 1,400 acres were to lie on the east side of the road; but the claimant below has placed part of it on the west side.
The proper mode of surveying Peter Johnson's claim is to begin at the end of nine miles upon a straight line, and so make the whole sạrvey on the east side of the road in the form of a square, making the general course of the road the base line of the survey.
But Ambrose Walden's land could not be bounded by a mere right of pre-emption, which was undefined, unlocated, and might never be carried into effect. It was a mere possibility. There must be an entry of a pre-emption before it can be considered as located, and until it be located it cannot be sur, veyed. Porter v. Gass, Sneed's Rep. The case of Kenny v.Whuledge applies only to village rights. Patrick v. Woods, Hughes's Rep. Sneed's Rep. 330. 336. 270.
If it could not adjoin the pre-emption right, neither could it adjoin the settlement right, because the call was to join the 1,400 acre tract claimed by Peter Johnson, and not his 400 acre tract.
The defendant has lost his right to the land contained in his entry, by making his survey contrary to his location. When the survey is made, although erroneously, it is an execution of the warant, and puts an end to the entry as such. The warrant, as well as the entry, is functus officio.
In these cases a court of chancery does not act upon equitable principles only, but is merely to decide which party has the legal right to the patent. It is only a chancery form of deciding a legal right. The court cannot require the complainants to give up to the defendant the land which the de
fendant might have surveyed under his entry, but which he failed to survey. in proper time.
It is not true in principle that the defendant is entitled to get his land somewhere; he did not purchase with that understanding The state did not so contract.
When a man surveys contrary to his location he loses his equity. These are statutory rights, and therefore to be decided strictly according to the statute. An entry is a legal right; it descends to heirs; it is subject to execution; it may be sold and transferred. These points have all been decided by the courts of Kentucky.
P. B. Key, in reply.
There cannot be two valid entries of the same land at the same time.
When a first entry is forfeited the land is again waste and unappropriated; and not till then can a second entry of the same land be valid. A second entry made while the first was valid is void.
If Taylor's entry was valid, it gave a legal right, descendible, &c. The land was no longer waste and unappropriated or vacant. The entry of the complainants, while Taylor's entry was in force, was a nullity, and gave them no right either at law or in equity.
February 27th, 1807.
MARSHALL, Ch. J. The court has been able to form an opinion as to a part only of this case.
That the court as a court of chancery has jurisdiction of such cases, is a point established by a long course of practice in Virginia and in Kentucky; but in the exercise of that jurisdiction, it will proceed according to the principles of equity. In such case, a prior cairy will be considered as notice to him who has the legal title, if such entry bie suficiently Border certain. And the legal title will be considered as
TAYLOR holden for him who has the prior equity.
March 14th, 1809.
MARSHALL, Ch. J. delivered the opinion of the court as follows:
This is an appeal from a decree of the court for the district of Kentucky, by which Taylor was directed to convey to Bodley and others a part of a tract of land to which he held an elder patent, but to which Bodley and others claim the better right under a junior patent. The judge of the district court having directed such part of the land held by Taylor to be conveyed to Bodley and others, as appeared by certain rules, which he has applied to the case, to be within their claim, and not within Taylor's location, and having dismissed their bill as to the residue, each party has appealed from his decree.
Previous to any discussion of the rights of the parties, it has become necessary to dispose of a preliminary question.
The defendant in the court below objects to the jurisdiction of a court of equity, and contends not only that the present case furnishes no ground of
jurisdiction, upon general principles, but that the land law under which both titles originate, in giving a remedy by which rights under entries might be decided previous to the emanation of a patent, has prohibited an examination of the same question after a patent shall have issued.
Had this been a case of the first impression, somt contrariety of opinion would perhaps have existed on this point. But it has been sufficiently shown that the practice of resorting to a court of chancery in order to set up an equitable against the legal title, received, in its origin, the sanction of the court of ap
peals, while Kentucky remained a part of Virginia, and has been so confirmed by an uninterrupted series of decisions as to be incorporated into their system, and to be taken into view, in the consideration of every title to lands in that country. - Such a principle cannot now be shaken.
But it is an inquiry of vast importance whether, in deciding claims of this description, a court of equity acts upon its known, established and general principles, or is, merely substituted for a court of law, with power to decide questions respecting rights under the statute, as they existed previous to the consummation of those rights by patent.
It has been argued that the right acquired by an entry is a legal right, hecause it is given by a statute; that it is the statutory inception of a legal title which gives to the person making it a right, against every person not having a prior entry, to obtain a patent and to hold the land. The inference drawn from this is, that as the law affords no remedy against a person who has defeatčd this right by improperly obtaining a prior patent, a.court of chancery, which can afford it, ought to consider itself as sitting in the character of a court of law, and ought to decide those questions as a court of law would decide them, if capable of looking beyond the patent.
This reasoning would perhaps be conclusive if a court of chancery was, by statute, substituted in the place of a court of law, with an express grant of jurisdiction in the case. But the jurisdiction exercised by a court of chancery is not granted by statute; it is assumed by itself: and what can justify that assumption but the opinion that cases of this description come within the sphere of its general action ? In all cases in which a court of equity takes jurisdiction, it will exercisc that jurisdiction upon its own principles. It is believed that no exception to this rule is to be found in the books, and the state of land titles in Kentucky is not believed to furnish one. The true ground of the jurisdie