#### SIMMS v. GUTHRIE AND AL.

4#&seMi....LiviNGST0N, J. Story, *J. and*Todd, *J.*

Kentucky, in a suit in chancery. ERROR to the Circuit Court for the District of

The lanil law of Virginia, which gives a eJ^tion TcT" tll0Sfc who had marked & im«‘ proved land right to the time whep *|ntTMprove“ ma<i6) *'Ind to*the time of the ae^and notto the’time-when tiie claim for such pre-emption was rn»de *>,efoié the m^aer^on1’

if an entry be TM®g®e^yofth® pre-emption the ’¿me of the assignor be iftheentiy.re’ if* It men’tion'animpavement, scribed with sufficient certainty in other

A lawfenottobe «madered »» and therefore if is not pc. *20cessary in a - Court of limited jurisdiction to ■'other introducUoiwif those panics akoiiH the jurisdiction A 'ctonTM!»! naot^equity oannot obtain 'more°iííim he has Asked iii Jús Ml.

*19The facts of the case, as stated by the chief justice in delivering the opinion of the Court, were as follow:

Charles Simms, the Plaintiff in error, having ed a judgment in ejectment for certain lands lying in Kentucky, in possession of the Defendants, for which the said Simms held a patent prior to that under which the Defendants claimed, a bill of injunction was filed by them, praying that lié might be decreed-to convey to them so much of the land in their possession as was in-eluded within his patent.

it appeared m evidence that, in the year 1776, a company, of whom John Ash was one, marked and improved several parcels of land lying on the waters of Salt river. John Ash made an improvement on the waters of the Town Fork of Salt river, soon after which William M‘Collom, another member of the same company, made an improvement at a spring on thé same stream, about seven hundred yards below him. Ash complained that M‘Collom had encroached on his rights tty appreaching too near him; upon which, they agreed decide by lot who should be entitled to both improve-me-nts. Fortune determined in favor of Ash, M»Collom relinquished his rights, and improved elsewtu re. Ash afterwards amended both improvements, and planted peacli stones at that wíiich was made by himself.

_ . In April, 1780, before the Court of commissioners appointed in conformity with the act generally denominated the previous, title law, John Ash obtained a tificate in the following words: “John Ash, senv.claim- « ed a pre-emption of 1,000 acres of land in the district “of Kentucky on account.ot marking and improving «the same in the year 1776,' lying on the waters of the

*20“ Town Fork of Salt river, about; two miles nearly east “ from Joseph Cox’s land, to include his improvement “ Satisfactory proof being made to the Court, they are “ of opinion that the said Ash has a right to a pre-emption of 1,000 acres of land, to include the above loca*a*tion, and that a certificate issüe accordingly.” *° J*

This certificate was assigned to Terrell-and Hawkins, who, in April, 1781, made the following entry thereon in the surveyor’s office of the county in which the lands .-«Terrell and Hawkins -entered 1,000 acres, No. *“*1226* on the waters or the town rork of Salt river, *“*two miles nearly east from Joseph Cox’s land, “ to include his improvement.” This entry was survey.ed and patented, and the Defendants claim under it, The date of this patent was on. the 6th of'March, 1786.

The entry of Charles Simms was, made on the 13th of April, 17' 3, Ids survey on the 25th of the. same month, and his patent issued on the 19th of April, 1783.

The claim under an improvement being of superior dignity to that of Charles Simms, his title must yield to that' of the Defendants in error, if theirs be free from objection.

The land law of Virginia, under which all parties claim, requires that locations shall be añade so specially and precisely that other persons may be enabled with certainty to locate the adjacent residuum.

The situation of Kentucky, covered with conflicting titles to land, has made it necessary that this requisition of the law should be enforced with some degree of rigor, while the ignorance of early locators, the dangers to which they were exposed, and the difficulty of describing, with absolute precision, lands which were held l>y a very slight improvement made on a single spot, and which could not be. immediately surveyed, induced the Courts *(f{*that country, for the purpose of preserving entries as' far as was consistent with law, to frame certain general rules of very extensive application to cases Which occurred. One was, that the designation of dny Particular .spot-of general notoriety, or such a descripon of it ift relation to some place of general notoriety *21as would clearly point it out to subsequent locators, would give-Sufficient notice of the place intended .to be appropriated, and that a failure to describe the external figure of the land should be supplied by placing the improvement in the centre, and drawing round it á square with the lines to the cardinal points, which should comprehend the quantity claimed by the location.

The Court below was of opinion that there was sufficient certainty in the certificate of John Ash, senr. and in the entry afterwards made with.the surveyor by Terrell and Hawkins; that the improvement intended to be claimed by Ash was that which he won of M‘Collom, and that the land should be surveyed in a square form with the lines to the cardinal points, including the improvement won of M‘ColIom in the centre. A survey having been made.in conformity with this interlocutory decree, the Court ordered the Defendant below to convey severally to the Plaintiffs in that Court so much of thp land claimed by them as was included in his patent. To this decree Charles Simms has suéd out a writ of error.

Swann, *for the Plaintiff in error,*contended,

1. That Simms having the first entry and first patent and judgment at law in ejectment, his title must prevail.

The entry of Terrell and Hawkins in ivai cannot be connected with the settlement of Ash. It does not refer to it, and the want of such reference cannot be aided by any extrinsic evidence. The entry must be in its'df sufficient, or it can avail nothing. *Harding’s Reports,*108, *Patterson’s devisees v. Bradford.*

2. The entry, if it can be connected with the certificate of the commissioners in favor of Ash., is still void for uncertainty. There were two settlements by Ash, and it does not appear to which the commissioners alluded; or if it does appear to .which they alluded, it was to the first settlement of Ash, and not to that which was begun by M'Collom. *Hughes’s Reports, p.*95, *Harding’s*Reports, 140, *Craig v. TJorrain.*The land ought to have been surveyed from Ash’s first settlement, and nof from that which he won from M «All um.

*22Jones, *contra,*

1. The first objection is, that the right of pre-émption never belonged to this land, because it is said that Simms had á prior claim.

But the act only excludes from the right of pre-emption, lands to which a legal title had been acquired pri- or to the date of the act. Tiie law refers back to the *improvement,*and gives the pre-emption, notwithstanding an intermediate'title. ; Simms must show that his title commenced before the passing of the land law

2. The second objection relates to the vagueness of the entry.

The entry of Terrell and Hawkins was made upon warrant No. 1226, and refers to it. That warrant was lodged with the, surveyor, and refers to the pre-emption certificate of Ash.

The cases cited to show that you cannot make a vague entry certain by.reference to another paper, are of recent date> and if they are 16 be understood as the opposite counsel contends, would he in opposition to the anaiagous cases, in the case of *Patterson's ' devisees v. Bradford, Harding,*108,' it is said .that if the entry calls for an improvement you may refer to the certificate to show where the improvement was. So ih *Greenup v. Rhiton, Harding,*16, the Court decided that you might refer to another paper to show what was ambiguous in the entry.

It is also said that it appears by extraneous *t*,'idence that there were two improvements by Ash, and therefore that the entry is uncertain.'

The question is whether the improvement was sufficiently notorious to give notice to-subsequent locators. Tt might have been as notorious as any other object. The cabin, the spring,, the run .and the location of Joseph Cox were ail well known. But it is in proof that one of the improvements, was abandoned. They were near each other and formed only one plantation or settiem nt. The evidence is that Ash’s improvement means the cabin where his widow now ljves.

*23Swann, *in reply•*

. The pre-emption of Ash ought to be laid off from his first improvement. Ash renewed both imprbvc mente, viz, *Jkh’s*and *JM'Collom’s, as Mick.*The question is, which was Ash’s settlement at the time referred to in the certificate of the Court of commissioners ? What did lie mark and improve in the year 1776? It is the improvement made in 1776 only to which the commissioners refer. The cabin was built after the certificate.

*February 14th.*

/¡feseni.... John son, *J. and*Í odd, *J.*

Mabsuaü, *Ch. J.*

after stating the facts of the case, delivered the opinion of the Court as follows:

The first error assigned is that the entry and survey of the Plaintiff in error being prior to the claim made by Ash before the Court of commissioners, gave him a legal right to the land so .entered and surveyed, not to be affected by the subsequent claim of Ash.

The words of the act of assembly are, “ That all “ those who, before the said first day of January,1778, “ had marked out or chosen for themselves any waste “ or unappropriated lands, and built any house' or hut, “or made other.improvements thereon, shall,'also be “entitled, on the like terms, to any quantity of land, to “ include such improvement, not exceeding 1,000 acres, “ and to which ho other person hath any legal right or “ claim/’

The Court is clearly of opinion that the words of the law refer to the time when the. improvement was made, and to the time of the .passage of, the art.; not'to the. time when the claim, founded on that improvement, was made to the Court of cohimissioners. If the land, when improved, was waste arid unappropriated, if, at the passage of the act, no other person had “any-legal right, or claim” to the land so. improved, such right could not be acquired uqtil that of the improver should be lost.

The second error is; that the entry made by Terrell and Hawkins with the surveyor has no reference to the *24pre-emption certificate of Ash, and is therefore not a good and valid entry of Ash’s pre-emption right.

Terrell and Hawkins were assignees of Ash; and ought to have been expressed in the entry. Those words are omitted. In consequence of their omission, it does not appear whose improvement is to be included.

Upon this point the Court' has felt a good deal of difficulty. If the entry witli the surveyor could be connected with the certificate of the commissioners, this difficulty would be entirely removed. But the Court is not satisfied that, according to the course of decisions in Kentucky, such reference is allowable.

The Court, however, is rather inclined to sustain the location, because its térms are such as to suggest to any subsequent locator the nature of the omission which had been made.

Terrell and Hawkins enter 1,000 acres of land, “ to include *his*improvement.” It was then a warrant founded on an improvement j and that improvement was made, not *by*them, but by a single person. Of that single person Terrell and Hawkins were, of course, the assignees. The place was described with such certainty as would have been 'sufficient, had the assignment been stated. On coming to the place, Ash’s improvement would have been found. The mistake, therefore, docs not mislead subsequent locators. It does not point to a different place. They are as well informad as they would have been by the insertion of the omitted words. The entry, toó, contains a reference to ihe warrant which the law directed to be lodged with the surveyor, and to remain there until it should be returned with the pl'at and certificate of survey to the land office.

3. It is also objected that some of the- Defendants in error do not show a complete legal title under Terrell and Hawkins, for which reason they have not entitled themselves to a conveyance from .Charles Simms; and that one. of them, John Meiggs, has obtained a decree for 140 acres of land, although in the bill he claimed only 100 acres.

*25Regularly the Claimants who have only an equitable title ought to make those whose, title' they assert, as well as the person from whom they claim a conveyance, parties to the suit. For omitting to do so an original bill might be dismissed. But this is a bill to enjoin a ■ judgment at law rendered for the Defendant in equity against the Plaintiffs. The bill must be brought in the Court of the United States, the judgment having been rendered in that Court. Its limited jurisdiction might possibly create some doubts of the propriety of making citizens of the same state with the Plaintiff, parties Defendants. In such a case, the Court may dispense with parties who would otherwise be required, and decree as between those before the Court, since its decree cannot affect those who are not parties to tiie suit.

It is certainly a.correct principle that the Court cannot decree to any Plaintiff, whatever he may prove, more than he claims in his bill. Nothing further is in issue between the parties. It is not necessary to inquire whether any thing appears in this cause, which can prevent the Plaintiff from availing himself of this principle; because the decree will be opened on another point, in consequence of which this objection will probably be removed.

4. The fourth error is that John Ash having two improvements, it is uncertain which he claimed before the commissioners, and his entry is on this account void; or if not so, then his claim was for the improvement made by himself, and not for that won from M‘Collom.

It is admitted that if the terms of the entry are such as to leave Ash at liberty to select either improvement, it is void; and that if the terms of the entry confine him to either, he must abide by his original election.

Upon considering the testimony on this point, the Court is of opinion that the entry may be construed to refer to one improvement in exclusion of the other; but that the ini proved) cut referred to is the one first made by himself.

Let the several members of this description be examined.

*26John -Ash, senr. claimed 4,O0O acres of land, &c.« on « account of marking :and improving the same in the « year *17.76J”*

were both marked and. improved in the. year 4770» the one by. Ash himself,,the other by M‘Collom* The description proceeds, «lying on the waters of the if Town, Fork of Salt'river, about two miles nearly east « frojm Joseph Cox’s land.”

Both improvements are on the. same water course *■;*but that made by Ash is nearer the distance.and'the course from Joseph Ch/x’s land, mentioned, in the certificate, than that made by M>CoIlom.

If, then, it be not absolutely uncertain to which improvement reference is made in the certificate, this Court is of opinion that the improvement made by Ash . himself is designated.

Is there any testimony in the cause which can control the meaning of the terms of the. certificate when viewed independent of that testimony ?

- There is evidence that the improvement at MfColloin’s spring was generally known in the neighborhood. But there is no reason’ to believe that the improvement originally made by Ash himself was not also known, nor is there any reason to believe 4hat he had abandoned it. On the contrary, lie added to it by planting peach stones after having won that made by M‘Collom.

It is.also in proof that, at the Court of commissioners, in April, 1780, in conversation , with Thomas Polk, whom he then designed to call on to prove his improvement, he said that he intended to settle at M‘GoIlom’s spring.

• Supposing this to amount to a declaration of his intent to.found his claim to a pre-emption on the improvement commenced by M‘C«llom, and completed by himself. that intent not appearing in the certificate and entry, could not control those documents. But the Court is not of opinion that the conversation will warrant this *27inference. The whole case shows that Ash retained his claim to both improvements, and designed to include both in his pre-emption. They, are both included in his survey. His declaration, therefore, that he meant tó settle at lYhCollom’s spring, and the subsequent ing of a cabin at that spring, no more proves which improvement was the foundation of his title than if he had declared a design to settle at any other place on the same tract of land, and had carried that intention afterwards into execution by building at such place.

This Court is of opinion that there is error in so much of the decree of the Circuit Court as directs the survey of Ash’s pre-emption to be made .on the improvement commenced by M‘Coll.om, which is at black A in the plat to which the decree refers3 and that'the said pre-emption right ought to be surveyed on the improvement originallv made, by Ash himself, which is at figure 2 in the said p at. The decree,.therefore, must be reversed, and the cause remanded to the Circuit. Court, with directions tq conform their decree to the opinion given by this Court.

The-decree of this Court is as follows:

This cause, came, op to bo beard, on the transcript of the record from the Circuit Court, and was argued by counsel j on consideration whereof ti e Court is of Opinion that there, is error in so. much of the interlocutory and final decrees of the said Court as directs Charles Simms to convey to the Plaintiffs in that Court the land included in his patent and in the survey directed to be made by that Court, of the claim of the said Plaintiffs, •which survey was ordered to be made in a square form, including the improvement at M‘CoHom’s spring which is designated in the plat by the black letter A in the centre5 and that the said decrees ought to be reversed and annulled, and the cause remanded to the Circuit Court wiih directions to cause the said pre-emption right of the said Ash to he surveyed in a square form with the lines to the cardinal points, and including the improvement originally made by the said John Ash, senr. which is’designated in the plat filed in the said cause by figure 2 in the centre 3 and with further di*28rections to order the said Charles .Simms to convey, to the Plaintiffs in the Circuit Court respectively the land included in his patent, and lying. Within their several claims as made in their bill, and as sustained by the evidence in the cause. AH which is ordered and decreed- accordingly'.