#### Hall’s Lessee *vs.*Pearl.

Error to the Lincoln Circuit; Bridges, Judge.

Case 163

*Act of*1815, *which provides for the appropriation of the waste lands of this state.*

Chief J ustico Robertson did not sit.

October *17*

Judge Underwood

delivered his opinion as follows ;—

Hall, in virtue of a Kentucky, land office warrant, obtained a patent, in 1817, for 105 acres of land actually possessed by Pearl, and, in 1824, instituted this action of ejectment to recover the possession.

Pearl, to defend himself, gave in evidence an entry for 400 acres made, by virtue of a preemption warrant, in January, 1782, in the name of Benjamin Roberts, assignee of W illiam Hicks ; and likewise a survey for 300 acres made, by virtue of part of a Virginia treasury warrant, in November, 1797, for Tliomas Quirk, assignee &c. •"

It was admitted, that both the entry and sbrvey covered the land included by the patent to Rail. Upon this evident^ the court, in substance, instructed the jury, that if they believed the entry and survey covered the land in controversy, the patent to Hall passed no title, and they should find for the defendant.

The jury found for the defendant, and Hall pros ecutes a writ of error with supersedeas.

Whether the instruction given by the court is correct*, constitutes the only question.

■ The-act of 1815, II Dig. 806, intended to provide for the appropriation of waste and unappropriated lands. The tenth section qf the act, with a view to *574quiet litigation, as is expressly declared, enumerate# certain descriptions of land winch shall not he appropriated under the provisions oí the act, and likewise specifies certain claims which shall be deemed suPer’or 1° surveys made upon warrants obtained by virtue of the act. If Pearl has shewn that the land in controversy fall within the description given by the statute, of land riot subject to be appropriated under its provisions, then there can fie no doubt-of the correctness of the instruction; for there could not be a more palpable contradiction than to assert that the land in controversy was such as ihe statute prohibited from appropriation,and that it had nevertheless been appropriated under the provisions of the statute. Moreover, it Pearl has shown a claim which the statute declares shall be deemed superior to Hall’s, tire instruction would be regarded as correct. For, by the act of 1815, the survey is made the commencement of title, and any claim which, in the language of the act, “ shall be deemed superior to surveys made upon warrants obtained by virtue of the-act,” must have the eflect of preventing the title from vesting in such land warrant claimant, otherwise it could not be “ *deemed*superior.” It will not do to say that the meaning of the act in such cases is, that the claims intended to be protected by the 10th section shall be deemed *superior*in equity but *injerior*in law. The language used authorizes n'o such construction. The policy of the legislature was to make them *superior*every where, so that the speculator might not be gratified by partial success, or thereby have it in his power to make beneficial compromises by operating on the fears of. his adversary. Whatever, tliereiore, may have been the old rule, or the current of decisions imparting an almost unimpeachable validity to patents emanating under former statutes, 1 cannot give to them, when founder on the act ot 1815, a character too sacred to be touched by the common law tribunals. I see no sufficient reason tor driving a party to the chancellor tor relief unuer this statute, when the mere identification of his claim, if it be such an one as is protected by the 10th section, would'entitle him to a decree. An inquiry into the nature of the claims *575offered in evidence, by Pearl, will, under the foregoing principles,- determine the propriety of the instruction.

*574of^the acTof1 oi ls 15,which provide» for the appropriation of tho waste ami nnnpproprintorl lands of this Common wealth, dis-dossed.

*575First, then, in relation to the entry in the name Of Roberts. It does not appear that this entry -was ever surveyed. By an act of the Virginia legislature, passed in 1785,1 Litt. Laws, 454, unless the owner of the entry in question attended with chain-men or marker, or appointed an agent, in case he lived out of the county, as required, his entry became void. There is no evidence shewing that the Owner of this entry ever complied with the law in this respect. Many acts of indulgence were passed both by Virginia and Kentucky. The last indulgence act passed by Kentucky, extending the time for surveying such entries, expired in 1798, so that it seems this entry was void long before the passage of the act of 1815 for appropriating waste lands, and that there was no act in force authorizing it to be surveyed, unless its owner labored under some saving disability which is not proved. Now, does the act of 1815 when, in the tenth section, it declares *x‘*that all *entries*heretofore made, which by the laws of the time being were authorized to be made, shall be deemed superior to surveys made upon warrants obtained by virtue of this act,” intend thereby to give life and energy to a *void*entry? I think the act w'as not designed, nor can it have that effect.An entry which has become void is as though it never existed. The act of 1815 does not purport to repeal the laws under which Roberts’ entry became void, and to infuse into the entry new efficacy. So long as these law's remain unrepealed and in force,Roberts’ entry is a nullity, and was so before the passage of the act of 1815. That act by the expression *’■'■entries heretofore*made” intended to include such entries as at the time of its passage continued to subsist and possessed validity as entries. Roberts’ entry, made in 1782, had ceased to be an entry, and, therefore, ■when the legislature are speaking of entries, it would ■be a strange construction to consider them as including nonentities. This void entry, in the name of Roberts, did not, therefore, in my opinion, justify the instruction.

*576The survey in the name of Quirk is next to be considered. It has been the uniform doctrine of this court since the decision in the case of Patterson’s devisees vs. Bradford, Hardin, 104, that a survey, unless made in pursuance of the entry, is not an appropriation of the land. The survey, *per*se, confers no title. Surveys made under the act of 1815 constitute an exception to the rule. The 10th section of the act of 1815 protects titles founded on surveys made before the passage of the act, notwithstanding the entry on which the survey was founded may be vague, or notwithstanding a departure in the survey from the calls of a good entry. This may enable a younger grant, founded on such a survey, to overreach an elder grant founded on a Kentucky land office warrant, but it cannot, in opposition to the long settled doctrine, convert surveys into titles. Besides, no authority whatever for making the survey of Quirk has been shewn. This survey alone, then, without an entry or patent to support it, proved nothing in behalf of Pearl.

It cannot be said that the land in controversy could not be appropriated under the provisions of the act of 1815, on account of its being land forfeited to the Commonwealth. That an escheat of forfeiture of lands to the Commonwealth, for any cause, does not extinguish the title forfeited so as to render the land waste and unappropriated, and thereby to bring it into market under the general laws for appropriating vacant lands, is clearly settled by the cases of Elmendorf vs. Carmichael, III Litt. 481, and Stith &c. vs. Hart’s heirs, VI Monroe, 624. But Pearl has failed to bring his case within the influence of this principle, for he has not shewn that there ever was a title to the land in controversy in any one, anti that the title so existing had vested by escheat or forfeiture in the Commonwealth. A forfeiture of Quirk’s survey could not vest title in the Commonwealth, unless Quirk himself liad a title to the laud in dispute which he could part with by forfeiting ids survey. The land in contest does not, from any thing apparent in the record, seem to be of that description which could not he appropriated by the act of 1815, In every view, therefore, which *577Í have been enabled to take of the case, I am of opinion, that the circuit court erred in the instruc tion given.

Green, for plaintiff; Owsley, for defendant.

The judgment of the circuit court is reversed, and the cause remanded for a new trial.

But as Judge Nicholas and myself do not agree in our reasoning, we cannot prescribe the principles which shall govern another trial. 1 can say for myself that the defendant may impeach the plaintiff’s patent, if he can make out a proper case. We unite in giving tire plaintiff in error a judgment for costs in this court.

Judge Nicholas,

dissenting, delivered his own 0-pinion as follows :—

I concur in reversing this case, but for different reasons from those given by Judge Underwood.

I do not consider the patent of Hall contestable in a court of law, on the ground that it embraces land appropriated by entry or survey made previous to the act of 1815. See Bledsoe vs. Wells, IV Bibb, 329; Ross vs. Barland, I Peters, 664; Jennings vs. Whitaker, IV Mon. 50. I do not think the tenth section of that act, when properly construed, meant to confer any superiority upon such entry or survey, when valid, over survevs made upon warrants issued under the act, but simply to confer suc h superiority upon entries otherwise invalid for vagueness, and upon surveys not made conformable to entry. The former class of entries and surveys did not need legislative aid to confer superiority upon them — they already had it; the latter class had it not, and it was therefore the intention of the legislature to confer it upon them. This construction gives full scope and pertinent application and operation to every word in the first member of the tenth section. The opposite construction enlarges and strains the language beyond its necessary and natural import, contrary to the well established rule for construing all statutes which are in derogation of the general *578j>¿)e¡1 0f jaw_ *Bnt jf the legislature, from snperabimdant caution, does say, and did mean to say, that all entries and surveys theretofore made, should he superior to surveys thereafter made, it is then but in affirmance and declaratory of the law, as it would ■have’been without the act, and that the character of superiority intended to be conferred, was only such as similar claims theretofore had over adverse surveys. That is an equitable superiority, to be enforced according to the then well established usages of law in a court of equity, and not in a court of law.

The act only makes surveys the commencement of title as against other surveys made under it, not as against entries and surveys *theretofore*made, and for the plain and obvious reason that it would be impracticable for the former to compete with the latter as"to priority in point of time.

I can perceive no more absurdity or contradiction, in the assertion, that the land in controversy was such as the statute prohibited from appropriation, and that it had nevertheless been appropriated, than Would arise from a similar affirmation with regard to any junior or second appropriation of land, under any other of the various systems known to the land laws of Virginia and Kentucky. Under none of ihern could there be more than one valid and rightful appropriation of the same land. When a legal ■ appropriation was once made, every subsequent appropriation of the same land was illegal and prohibited. Yet nothwithstandingthe supposed absurdity, the courts of this state and Virginia for the last fifty years have uniformly, and in countless instances, in -all proceedings at law, sustained the elder grant,, though issued upon such subsequent illegal appropriation.

• So far as regards this case, the only inhibition to be gathered from the act of 1815, against the appropriation of the land by the plaintiff, is that contain-, ed in the first section, which merely authorizes the location under it of waste and *unappropriated*land, from which the inference is fairly deducible, that th& location of appropriated land was not permitted. A similar inhibition, in almost the precise same form,. *579is *to he*found in every land system that we have ever had.

When forming this new land office warrant system, whether it would not have been good policy in the legislature to subject all. conflicting titles, likely to grow out of it, to the test of a single-adjudication in a court of law, is an enquiry with' which I have nothing t© do. I will cheerfully acquiesce in that-course when it shall be prescribed in language sufficiently explicit to be understood. But if it be permitted to express my individual, opinion, it would-be, that true policy dictated the inhibition of any-investigation behind or *dehors*the patents. That the-eldest patent should be made to prevail in all cases both at law and equity. It is my belief that among ■ the ablest and most experienced jurists of our state-it has caused continued and increasing regret, that this course had not been taken by our courts in the early and original adjustment of this question ; that" they had not refused to permit the elder patent to-be invalidated for any cause whatever except that of actual fraud in its obtention. If this view needed' confirmation from the opinions of enlightened jurists out of the state, it. has- the strongest and most, direct sanction from the supreme court in the case of Polk vs. Wendell, V Wheaton, 293. It is there said, “ long experience had satisfied the mind of every member of the court'.of the glaring impolicy of ever admitting an enquiry beyond the dates of the grants under which lands are claimed'.'. But the peculiar situation of Kentucky and Tennessee- with relation to the parent states, Virginia and South Caro- ■ lina, and the statutory provisions and course of decision that have grown out- of that relation-, has imposed on this court the necessity of pursuing a course which nothing but necessity could have reconciled, to its ideas of law or policy.”

Entertaining this opinion upon-this part of-the-case, it is unnecessary for me to express any upon-any other branch of it. We concur, that upon the case, as made out, the plaintiff ought to have recovered.

Wherefore, the judgment must be reversed, with costs, and cause remanded for new trial.