#### *Lewis and Others v. Billips and Others.*

June, 1829.

Patents — Prior Equitable Right against Grantee— Jurisdiction ot Equity. —Under what circumstances, a party shall be entertained in equity, to assert a prior equitable riiillt against a grantee claiming under a patent, the claimant having never prosecuted a caveat against the patentee.

Same — Entry—Failure of Survey to Conform with - Effect — Case at Bar. — In the location of a land warrant, the entry calls to begin at three marked red-oaks, and to extend down for quantity; these three oaks are on the head waters of a stream called Poplar Fork: the survey does not extend down that stream for quantity, but leaving It intlrely, extends down the general course of the country: and there is evidence, that the call of the entry to extend down for quantity, in the usual sense of that phrase in locations, required the locator to extend down Poplar Pork for quantity. Hum, the survey Is naught for not conforming with the entry.

Same — Same—Sufficiency of Sarvey — Case at Bar. — An entry calls to begin one mile above a marked tree and a rock on Big-Hurricane creek, eight or nine miles above its mouth: the marked tree and rock are on the east side of the creek, 13 miles from its mouth by the meanders, and more than 9 miles in a straight line: the survey of this entry begins at a point on the west side of the creek. 65 poles from the stream, and one mile and 84 poles from the designated tree and rock. Heed, 1. The entry is special and precise enough: 2. The survey conforms with the entry with reasonable exactness. especially as a iury had so found shortly after the survey, upon a caveat to which though not all yet some of the parties, now contesting the right under this survey, were parties.

Edward Billips and others claiming under him, exhibited their bill in the superiour court of chancery of Staunton, against Andrew Lewis and others devisees of Thomas Lewis deceased, and John Morris and others claiming under William Morris deceased, Shádrach Harman deceased, Thomas Teas and William Neely, setting forth:

That Billips, in 1794, holding a land office treasury warrant, put the same in the hands of Thomas Lewis to locate for him. And Lewis, having indorsed on the warrant an assignment thereof from Billips to himself, on the 1st October 1794, made an entry thereon in his own name as assignee, for 1437 acres of land in Kanawha county, which was surveyed on the 1st October 1798, and on this survey a grant of the land was issued to Lewis, on the 26th January 1801. But Lewis acted throughout for the benefit of Billips, the owner of the warrant, and always declared, that the land was his property. Accordingly, Billips and *lhose claiming under him had held the possession of a part of the tract. The whole of the land, however, was now claimed by the defendants, under grants thereof, issued to William Morris, Harman, Teas and Neely; and these patents were older than that granted to Lewis; and the surveys and entries on which they were founded were also older than the survey and entry on which the patent to Lewis was founded; yet the right of Billips under Lewis, was preferable in equity to the right of the defendants claiming under Morris, Harman, Teas and Neely, because their entries were not special and certain, because their entries in truth did not at all interfere with Lewis’s entry, and because their surveys, which did interfere with Lewis’s survey, were not conformable with their entries. The bill, therefore, prayed that Lewis’s devisees might be decreed to convey his right in the land to Billips; that he and the other plaintiffs holding under him, might be quieted in the enjoyment thereof, against the other defendants claiming under the patents of Morris, Harman, Teas and Neely, and that these defendants might be decreed to convey the legal estate derived to them from the elder patents, to Billips; and general relief.

One of the devisees of Lewis answered the bill, and contested the equita ble right asserted by the plaintiffs as well as the rights of the defendants claiming under the conflicting patents, and claimed the land for himself and his co-devisees. As against the other devisees, the bill was taken pro confesso.

Several of the defendants claiming under the elder patents, filed their answers, wherein they stated, that Morris and Harman, on the 15th April 1786, duly entered 2000 acres of land in Teas’s Valley in Kanawha; and, at the same time, Morris, Harman, Teas and Neely duly entered 4000 acres adjoining the other entry; but owing to the hostility of the-indians, and the unsettled state of the country, these entries were not surveyed till February 1795, when the surveys were made and sent to the land office; *and grants were issued upon them, the 28th. November and 2d December 1799. They insisted, that their entries were special and certain, the surveys conformable with the entries, and the patents regular: and that, on the other hand, Lewis’s entry was not special and certain, and his survey was not conformable *128with his entry. Therefore, they had not only the elder grants and the legal title, but a preferable right in equity to the land.

The plaintiffs afterwards exhibited a supplemental bill (suggested, no doubt, by the decision of this court in Noland v. Cromwell, 4 Munf. 155), in which they assigned as the reason why neither Lewis nor Billips had had recourse to a caveat, to prevent the grants to Morris, Harman, Teas and Neely, that Morris and one Milburn guardian of Harman’s heir, in February 1799, entered a caveat in the county court of Kanawha, against a grant to Lewis upon his survey, and in September following, judgment was given therein, against them and for Lewis; and that it was pending this caveat, or shortly after the decision therein, that Morris and others obtained their grants.

The defendants, in .their answers to the supplemental bill, insisted, that the caveat prosecuted by Morris and others against Lewis, to prevent the grant to him, afforded no excuse for the failure of Lewis or Billips to resort to that remedy to prevent the grants to Morris and others.

The allegations of the bill, that Lewis’s entry was made by him for Billips, upon a warrant belonging to Billips; that the assignment of the warrant made by Lewis to himself, and the making of the entry in his own name, were not intended to appropriate the land to himself, and to defraud Billips, but only to serve him more effectually; and that he always declared that Lewis’s land was located for Billips; and that it was in truth his property; were incontrovertibly proved.

Lewis’s entry was in these words 1 ‘October 1, 1794, Thomas Lewis lifts his entry of 1437 acres, made on Point creek near Farley’s Rooting camp, the 31st July 1787; *and enters the same to begin one mile above a tree marked D B. and a large rock standing about 20 poles above the said tree, on Big-Hurricane creek, a branch of Kanawha river, and eight or nine miles above the mouth of said creek; running from said beginning, a line N. 45 W. so far that double the distance S. W. and at right angles, will contain the above quantity of acres: warrant 1437 acres, No. 13700, dated 8th August 1782.”

The tree D B. and the rock 20 poles above it, called for in the entry, were on the east side of Big-Hurricane. As to the distance of these objects from the mouth of that creek, there was some variance in the evidence : the distance following the general meanders of the stream, was about thirteen miles; in a straight line, it was something more than nine miles. The beginning point of the survey, which was made on this entry the 1st October 1798, and on which the grant to Lewis was founded, was at two white-oaks, on the west side of the creek, 65 poles from the stream, and a mile and eighty-four poles from the tree D B. and the rock on the east side, called for in the entry. From the two white-oaks, there was a line run N. 45 W. 340 poles, and upon that line a parallelogram extending to the south west was laid down containing an area of 1437 acres.

The entries made by Morris and others, were in these words: 1st. “.April 15, 1786, William Morris and Shadrach Harman, assignees of John Hawkins, on a land office treasury warrant, No. 1622, dated 8th May 1783, enter 2000 acres, to begin at three red-oak trees marked with three notches, joining the right of settlement of Jacob Rife, and to extend down for quantity:” 2nd. ‘•April 15, 1786, William Morris, Shadrach Harman, Thomas Teas and William Neely, by virtue of the following land warrants, viz. 3000 acres from warrant No. 15901, 1000 acress from warrants Nos. 16989 and 1698, 1500 acres from warrant No. 20335 (lodged in the surveyor’s office of Green-brier), 706 acres from warrant No. 16035, enter part thereof, 4000 1 acres, joining the last entry of William Morris *and Harman, so as to include the vacant land on both sides.”

The three red-oak trees, called for in the first of these entries, were upon the head waters of a stream Called Poplar Fork, a branch of Big-Hurricane creek, which runs thence a north-westward course to Big-Hurricane ; and had the 2000 acres been surveyed beginning at the three red-oaks and extending in anjr way down Poplar Fork for quantity, the survey would not have interfered at all with the survey made on Lewis’s entry. But the survey of the tract of 2000 acres, which was in fact made and returned to the land office, and on which Morris and Harman’s patent was founded (dated February 15, 1795), began at the three red-oaks, and ran a short base line eastwardly, leaving the waters of Poplar Fork intirely, and crossing a ridge which divided the waters of that stream from those of Big-Hurricane; and upon this line, the area of the 2000 acres was laid, off to the south of the beginning point, extending down for quantity, according to the g-eneral course of the country; and this survey included a part of Lewis’s survey. If the phrase in the entry, “to extend down for quantity,” was to be interpreted down Poplar Fork, the survey, so far from conforming to the entry, departed from it at the very beginning and throughout. If that phrase was to be interpreted down the general course of the countrj', the survey conformed to the entry. To ascertain the sense and acceptation of this phrase, as used and understood in locations, a great many depositions were taken on both sides; and there was some contrariety in the evidence;but the evidence, that the phrase required the locators to extend their survey down the Poplar Fork for quantity, preponderated.

The surveys, made the 20th and 21st February 1795, on the second entry (that, namely, of Morris, Harman, Teas and Neely) were not made so as to include the vacant land on both sides of Morris and Harman’s entry, according to the call of his second entry, or indeed the land on both sides of Morris and Harman’s survey. The survey on the ^second entry joined Morris and Harman’s survey, on three short lines at the extreme southern point thereof, and extended southwardly from thence so as to include almost the whole of the land included in Lewis’s survey. If Morris and Harman’s survey did not conform with their entry, the sur*129veys made on the entry of Morris, Harman, Teas and Neely, were not in any way conformable with the entry.

The record of the caveat in the county of Kanawha, prosecuted by Morris and Harman’s heir against Lewis, was exhibited with the supplemental bill. The caveat was filed in February 1799, to prevent the grant of the 1437 acres of land to Lewis, upon his survey thereof of the 1st October 1798, suggesting for cause, that the same was claimed by Morris and Harman, by prior entry and survey. It was tried in September 1799. The jury, sworn to inquire of facts between the parties litigant, found : 1. That Morris and Harman’s survey of 2000 acres, did not conform with their entry, because they had not run down for quantity. 2. That their survey of 400 acres did not conform with the entry thereof, as the survey was made of land for which there was in fact no entry. 3. That Lewis’s survey of 1437 acres did conform with his entry. And the parties agreed the dates of their respective entries and surveys, and the extent of the interference of the surveys of the caveators with the survey of the caveatee. Upon this slate of facts, so found and agreed, the count}' court gave judgment for Lewis the caveatee. From this judgment the caveators prayed an appeal, which the court allowed them, without requiring an appeal bond with surety, nor was any given during the term; and the appeal was, therefore, dismissed by the district court held at The Sweet Springs, in October 1800. But, meanwhile, via. in November and December 1799, Morris and his associates, contrary to the judgment upon the caveat, took out their patents for the lands in controversy. Lewis did not apply for this patent, till January 1801, after the district court had dismissed the appeal from the judgment on the caveat.

*The late chancellor Brown was of opinion, that Billips had shewn himself entitled, in equity, to the 1437 acres of land granted to Lewis, as against Lewis’s devisees; and that, upon the facts proved in the cause, this equitable right of Billips was vested in him before the emanation of the patents to Morris and others; and, considering the circumstances and the manner in which these patents were obtained, the priority of them would not avail the patentees: therefore, he decreed, that the defendants, respectively should convey to 'Billips, all their right and title in the lands, or any part thereof, included within Lewis’s survey of 1437 acres; and that the defendants in possession of the lands should render accounts of rents and profits, &c. The defendants appealed to this court.

Johnson for the appellants:

Leigh for the appellees.

I. Johnson said, the chancellor certainly erred, in decreeing Lewis’s devisees to convey the land to Billips, without requiring Billips to defray the expenses defrayed by Lewis, in having the entry and survey made, defending the right, and obtaining the patent, or any money otherwise disbursed by him. Leigh admitted, that the decree was erroneous in this particular: but the error was owing to mere inadvertence; and, as the decree was interlocutory, the chancellor might, and doubtless would, have corrected it, whenever his attention was called to it.

II. Johnson, strenuously contended, that the decree was wrong in principle.

1st. He insisted, that Morris and Harman’s entry of 2000 acres, was sufficiently special and certain, and that the survey thereof conformed with the entry; and, by consequence, the entry of 4000 acres by Morris, Harman, Teas and Neely, was also-special and certain enough, and the survey of this too conformed with the entry, with as much precision as could reasonably be, or had ever been, required in such cases.

*This point presented the question, whether the call of Morris and Harman’s entry of 2000 acres, required the locators to go from the beginning point on the head waters of Poplar Fork, down that stream for quantity, or justified them in leaving that stream altogether, and going down the general course of the country, for quantity? A question, which mainly depended on the evidence, as to the meaning of the language of the entry, as used and understood in locations.

2dly. He contended that Lewis’s location of 1437 acres was naught, not having been made, in the language of the land law,, so specially and precisely, as that others might be enabled, with certainty, to locate other warrants on the adjacent residuum (1 Eev. Code, ch. 86, *\*17, p. 325) ; and that, if the entry were good, the survey was fatally vitious, for not conforming with the entry. 1. The location was not special enough. The entry called for a beginning one mile above a marked tree and a rock on Big-Hurricane, eight or nine miles above its mouth; without stating on which side of the creek those objects were; without stating, whether they were to be looked for, eight or nine miles from the mouth of the stream, measuring in a straight line, or by the meanders of the stream ; and, above all, without stating, in what course or bearing from the designated objects, the beginning point should be looked for, thus leaving the locator at liberty to select any point he pleased, in an arc of ninety degrees of a circle whereof the radius was a mile, any such point being downward from the designated objects. The entry could be regarded as special enough, only by construing it to call for a beginning at a point on the stream, and on the same side of it with the designated objects, one mile below them. And then, 2. the survey far from conforming with the entry, was an intire departure from it: for the objects designated in the entry, were on the west side of the stream; and the beginning point of the survey, was on the east side, no less than 65 poles from the stream, and 84 poles more than a mile from the designated objects. The ^verdict of the jury which tried the caveat in 1799, could not conclude any point in the present controversy, for only part of the parties here were parties to that caveat, and the record was so imperfect, that it was impossible to say, whether or no, the judgment of the court was given upon the merits. Neither could that ver*130diet be regarded even as evidence, either that Morris and Harman's survey of 2000 acres did not conform with their entry, or that the survey of 4000 acres of Morris and his associates had no entry to support it, or that Lewis's survey conformed with his entry. Por the record of the caveat was not exhibited as evidence touching those facts, or any facts in controversy in this case; it was only exhibited with the supplemental bill, as shewing an excuse for the neglect of Lewis or Billips to proceed by way of caveat, to prevent Morris and others from taking out their patents. And, as to the certainty and precision of Lewis’s entry, the verdict on the caveat found nothing; and this was a main point in the present controversy.

Leigh said, that if the certainty and precision of location, required by the land law, were to be taken in the strict sense of those words, very few locations had ever been, or in the nature of things could be, made specially and precisely enough. To minds not versed in the subject, most of the locations which had stood the test of examination, had an air of vagueness. The requisition of the law had always been understood according to the subject matter. Certainty and precision of location, according to the general understanding of locators, was all that was requisite: they know, better than we possibly could, whether an entry be special and precise, as well as whether a survey conform with or depart from the entry. It was enough, if Lewis’s entry was special and precise, and if his survey conformed with it with sufficient exactness, in the understanding of surveyors and other persons residing in this new country, and versed in such subjects. A jury of the country, trying the points in dispute shortly after they arose, had found, that the surveys of Morris and his associates, were not founded on *their entries, and that Lewis’s survey did conform with his entry. It could not be at all material, for what purpose the record of the caveat was originally exhibited. It was now a document in the cause. And, surely, it was evidence, that, when a locator establishes his beginning point on the waters of a stream, and calls to go down for quantity, the acceptation of the phrase is, that he is to go down the stream for quantity, not from it; in quite another direction, down the general course of the country; evidence also, as to the degree of certainty in a location sufficient, in general, to enable other locators to locate the adjacent land, and of the reasonable exactness with which a survey should conform with an entry.

III. Johnson said, that the case was not properly relievable in equity, because Lewis or Billips might, if he had right, have had remedy by caveat; nor did the caveat prosecuted by Morris and Harman against Lewis, furnish any reason why Lewis or Billips should not have resorted to a caveat against them.

Leigh adverted to the fact, that, after judgment given for Lewis against Morris and Harman, in September 1799, that Lewis was, and that Morris and Harman were not, entitled to a patent for the land comprised in Lewis’s survey, and while Lewis had every reason to believe, that that controversy was carried to the district court by appeal, Morris and his associates had come to the land office, and taken out their patents. They had, at the time, actual notice of Lewis’s prior equity. And thus, he said, these patents were obtained by surprise and fraud upon Lewis, Such as gave ample ground for the jurisdiction of the chancellor.

In the argument, the former adjudications of this court, concerning this much litigated point, were cited; particularly, Noland v. Cromwell, 4 Munf. 155; M’Clung v. Hughes, 5 Rand. 453; Jackson v. M’Gavock, Id. 509.

*

The principal case is cited in Handly v. Snodgrass, 9 Leigh 493; *also, foot-note*to Johnson v. Brown, 3 Call 259.

CARR, J.

I shall first consider the question, whether the appellee, having no good excuse for failing to caveat the appellants, *is precluded, by the decisions of this court, from looking behind their patent? The appellee in his supplemental bill, has assigned, in excuse for this failure, that the appellants, háving entered a caveat against Lewis, took out their patents while it was pending) Our caveat law says, 1 ‘if any person shall obtain a survey of land, to which another hath by law a better right, the person having such better right, may enter a caveat, to prevent his obtaining a grant, until the title can be determined, such caveat expressing the nature of the right on which the plaintiff claims the land.” 1 Rev. Code, ch. 86, *§*38, p. 330. In Johnson v. Brown, 3 Call 267, this court said, ‘ ‘It was foreseen by the legislature, that there would be interfering entries and surveys; and the caveat was the remedy for settling all those disputes prior to the patent, to avoid the inconvenience of that solemn instrument being involved in contests of that kind.” Here, we see the nature and object of the caveat. In the case before us, Morris and Harman caveated Lewis, because “they claimed the land by prior entry and survey.” This brought directly before the caveat court, the title of the caveator; and the judgment upon that caveat, was for the defendant. It was said, indeed, that it did not appear that this was a trial upon the merits, and if not, the judgment did not bind the rights of the parties: but the jury found, that the 2000 acre survey did not follow the entry; that the 400 acre survey was on land for which there was no entry; and that Lewis’s survey was conformable with his entry. And, on this finding, the judgment is given; which, to my mind, is most clearly upon the merits; The caveators appealed, and thereby prevented the caveatee from getting his patent; and pending this appeal, took out their patents, and then abandoned their caveat. I consider this proceeding a fraud; and a fraud too of that sort, that furnished a good excuse to Lewis, for not proceeding to caveat the caveators. Por, after a decision against their right, and an appeal indicating their intention to rest the contest on the caveat, Lewis had no rational ground to suspect the application for their patents. *He, then, or (which is the same thing) Billips claiming under him, comes into equity, sanctioned by Noland v. Cromwell, even upon my understanding of that case, *131as explained in M’Clung v. Hughes. And X consider this caveat such a notice to all, whose joint rights as associates with Morris were involved, as affected them with fraud in proceeding to take patents. The case, then, is properly in equity. And, without saying, that the verdict and judgment on the caveat, is.decisive of the rights of the parties, I will say that it is, with me, most persuasive evidence. The trial was by a jury of the country, every man of whom was probably familiar with entries, surveys and patents: they had the advantage, too, of hearing the witnesses examined and cross-examined by counsel well acquainted with these subjects; and thus could have every thing which may puzzle us, explained to them, by men who had been upon the land, had traced the lines, and were well acquainted with all the localities. From a decision like this, I should dissent with great diffidence.

But the examination I have given the entries, surveys and evidence, induces me strongly to believe, that the jury was right. The 2000 acre survey does not follow the calls of the entry. The beginning corner is proved to be on the waters of the Poplar Fork; and the call is, down for quantity. That stream runs a north-west course, and the first course of the survey is eastward, up and across the ridge, tp get upon other waters of Big-Hurricane creek. Six witnesses (two or three of them, surveyors) state, that the survey is off the entry. The 4000 acre entry is dependent on this, calling for the vacant land on both sides of it; and the error in this, of course renders that wholly erroneous, and throws the surveys, as the jury said, on land for which there was no entry.

With respect to the entry and survey of Lewis, though they might have been more precise and certain, I incline to think they ought to be supported, under the decisions both of this and the federal court. *1 think however, that the chancellor erred in decreeing a conveyance of Lewis’s title, before compensation shall be made to his devisees, for his services and expenses, in entering, surveying and patenting the land for Billips. The decree should have directed an account of these, and made the payment thereof, a condition precedent to the conveyance of the legal title by Lewis’s devisees to Billips. This, however, being an interlocutory order, the omission will not affect the costs. The decree should he corrected in this particular, and affirmed in all other respects.

GREEN, J.

The questions are, whether Billips, the cestui que trust of Lewis, has a better right to the land in controversy than Morris and his associates? and whether he can assert that right in a court of equity?

Referring to M’Clung v. Hughes, for the outline of my opinions on questions of this sort, I consider that Morris and his associates taking out a patent for the land in controversy, after the decision in a regular proceeding, that they had no right to it as against Lewis, was such a fraud as might be 'corrected in a court of equity, upon its general principles; and that all his associates were affected by the notice of this better right than Morris’s, although they might not have had such notice themselves. And, without deciding whether the proceedings in the caveat, were or were not binding upon the rights of the parties to this cause, I think, that, upon the evidence in this case, independently of the verdict and judgment on the caveat, the surveys of Morris and his associates did not conform to their entries; that Lewis’s survey did conform to his, with sufficient certainty, inasmuch as it covered the main body of the land, which it would have covered if it had been surveyed in the strictest conformity to the entry; and that no more latitude has been taken by him, in this case, than might reasonably be allowed in general; especially, as he comes in competition with one, who was not misled by the trivial irregularity in his survey. The ver- • diet of the jury on the caveat, and ^judgment of the court, which were more familiarly acquainted with subjects of that sort than I am, I confess, weigh strongly with me, to fortify this opinion.

The decree is, however, erroneous, in decreeing a conveyance of Lewis’s title, until his representatives be indemnified by Billips, for his expenses in procuring the title .to the land, with such a compensation for his services in that respect, as may be found reasonable. With this correction, the decree is right.

COALTER, J., said, he concurred in the opinion of judge Green.

CABELL, J.,

said, generally, that he concurred in the proposed correction of the decree, and in the affirmance of it in all other respects.

BROOKE, P.

I concur in the affirmance of the decree, with the correction proposed.

I do not think the judgment in the caveat case, can be relied on as an estoppel by the plaintiffs. A court of equity will not set aside a judgment for fraud, unless the party asking it to do so, will do complete justice: nor will it enforce a judgment, unless the party seeking relief, will submit himself to the justice of the court. But this is not material in this case, because the findings of the jury, on which the judgment on the caveat was rendered, are, I think, convincing evidence, that the judgment was right. The excuse assigned for the failure to file a cross caveat by the caveatee (if one was necessary) is, I think, sufficient, under the correct understanding of the decision in Noland v. Cromwell, without extending the construction so far, as to substitute the opinion of the minority for the opinion of the majority of the court; which, I think, is the effect of the decision of M’Clung v. Hughes. X deem the excuse, here, sufficient ; for, though no fraud may have been intended by the caveator, in taking out his patent pending the ^appeal from the judgment against him on his caveat, especially, as the patent included other lands than those in controversy; yet it was a surprise on the caveatee, who could not have expected, that the caveator would take out his patent, pending the appeal, and before the controversy respecting a. *132portion of the land included in it, was terminated.

The decree was corrected in the particular mentioned by the judges, and affirmed in all other respects, with costs to the appellees, as the party subsiantially prevailing.