#### Cresap v. M’Lean and Another.

April, 1834,

Richmond.

(Absent Tucker, P.,* and Brooke, J.)

Land Patent — Legal Title *Passes*According to *Metes*and Bounds. — Grant of land from the commonwealth, founded on survey, as containing 587 acres; but the metes and bounds described in the survey and grant, in fact, include 1393 acres: Held, thor the grant may be avoided as to the excess, at the suit of the commonwealth timely prosecuted, yet the legal title of the whole quantity of 1293 acres, passes by the grant to the grantee, and no individual claimant has a right to have the grant avoided, for the excess.

Adversary Possession — Equitable Title to Land. † — An equitable title to land asserted against the holder of the legal title, is barred by an adversary possession of more than 20 years held by the claimant of the legal title, the claimant of the equity having full knowledge of such possession from its commencement and being under no disability.

General Washington, in December 1769, presented a petition to the executive council of Virginia, on behalf of himself and the other officers and soldiers entitled to bounties in land under the proclamation of governor Dinwiddie of the *19th-Eebruary 1754, praying that 200,000 acres of land might be allotted to them, in pursuance of the proclamation, within a certain tract of country, on the waters of the Ohio, particularly described, and that the claimants might have the privilege of appointing a particular surveyor; and an order of council was accordingly made, *149authorizing the claimants to take up the 200,000 acres of land, in ohe or more surveys &c. within the tract of country described in the petition, but so as not so interfere with previous settlements. And under authority of this order of council, colonel William Crawford, assistant surveyour of Augusta county, whom the claimants of the land bounties had appointed their survey-our, in the year 1771, surveyed a tract of land called The Round Bottom, on the river «Ohio (in the now county of Ohio) for general Washington, and by his directions. The certificate of survey was made out some time after the survey was in fact made: the certificate of survey bore date the 14th July 1773; and it stated that the survey was made for general Washington as assignee of sundry claimants, upon military land warrants issued by governor Dunmore, bearing date after the actual survey made ;* and it described the land by metes and bounds, and as containing 587 acres only, whereas, in fact, the lines of the survey, included above 1293 acres. The survey being returned to and filed in the land office, after it Was opened *under the statute of 1779, a grant was issued, upon the survey, to general Washington on the 13th October 1784, describing the metes and bounds, and describing the quantity as being only 587 acres. And in the year 1798, general Washington, believing (as was proved beyond doubt) that the survey and grant contained •only 587 acres, sold the land to Archibald M’Eean for 5870 dollars, and conveyed it to him by the metes and bounds described in the survey and grant, as containing ¿87 acres; and under this conveyance M’Eean, in 1799, took possession of the whole of The Round Bottom, included within the metes and bounds, being in truth 1293 acres, and put his tenants upon it. He afterwards sold a part of the land to Jonathan Roberts. •>

Michael Cresap made a settlement on The Round Bottom, adjoining and below the settlement of Joseph Tomlinson on the same tract, in the year 1770 or 1771 before general Washington’s survey was made, as the plaintiff in this cause alleged, though it appeared, that if any such settlement was made at all, it was made in 1772. He died in 1775, and devised this setlement right to his daughters Mary, Elizabeth and Sarah; and in April 1781, Euther Martin who married one of the devisees, obtained a certificate from the commissioners for the counties of Monongalia, Yohogania and Ohio, for adjusting the claims to unpatented lands, under the statute of 1779, for 400 acres of land, to include Cresap’s settlement, adjoining Tomlinson’s settlement, in The Round Bottom; and at the same time, Tomlin-son obtained a like certificate of his settlement right to 400 acres in the same tract; and it was agreed between Cresap’s devisees and Tomlinson, that all' the lands in The Bottom that could be affected by their two certificates of settlement rights, should be equally divided between them. Cresap’s settlement right of 400 acres was surveyed in February 1784, and the survey being returned to the land office, general Washington entered a caveat against the issuing of a grant thereupon ; but this caveat was dismissed by the general court in April 1787, because (as the order of dismission imported) the last process issued thereon had not *been returned. The caveat being thus dismissed, Cresap’s devisees obtained a grant upon their certificate of settlement right, for the 400 acres of land, dated the 3rd February 1791. And then they sold and conveyed the same to Michael Cresap the younger.

Tomlinson brought a suit against M’Eean, to establish his settlement right to 400 acres of The Round Bottom; and that controversy was decided by this court in favor of M’Eean, in 1816. M’Lean v. Tomlinson, 5 Munf. 220.

In 1823, Michael Cresap the younger exhibited his bill against M’Eean and his vendee Roberts, in the superiour court of chancery of Clarksburg, — 'Setting forth the history of the titles to The Round Bottom, and the settlement right of Michael Cresap the elder, as above stated ; alleging, that general Washington, at the time that colonel Crawford made the survey for him of The Round Bottom, had full notice of Cresap’s prior settlement on that tract in 1770 or 1771; that he procured the survey to be made by metes and bounds that included the whole of The Round Bottom, but not being able to procure military rights for more than 587 acres, he procured the plot and certificate of survey to be made and returned according to the original lines of survey, describing them as containing only 587 acres, whereas in fact they contained 1293 acres; that Crawford’s survey was, in truth, only a private survey; that it was post-dated; that it was made with full knowledge of Cresap’s prior settlement upon the land; that it was made too, as appeared by the very certificate of survey itself, before the military land warrants, on which it was professed to be founded/ had been in fact issued, and so the survey, and the grant founded thereupon, were irregular and void on the face of them; that, thus, the whole proceeding was fraudulent and void as against those claiming under Cresap’s elder and better settlement right; and that the dismission of general Washington’s caveat against Cresap’s devisees, in 1787, was a plain admission on his part, or a declaration by the general court, of Cresap’s preferable settlement right for 400 acres. That, after the plaintiff, claiming under the devisees of the settler, *had been for a long time in peacea*150ble possession of his 400 acres of land, Archibald M’Lean, claiming under the conveyance from general Washington, finding the land unoccupied, entered into possession thereof, in 1799, against the plaintiff’s will, and continued to hold the possession, availing himself of the elder grant under which he claimed, and he yet insisted on retaining the possession in exclusion of the plaintiff’s just right; that he had sold a part of the land to Jonathan Roberts; that both M’Lean and Roberts, at the time of their purchases, had full notice of Cresap’s elder and better settlement right; that it was owing to the early death of Cresap the settler, the long minority of his children, and the war of the revolution, that they had not acquired the elder grant, to which they were justly entitled; and that the fact of Tomlinson having brought a suit to assert his settlement right, founded on the same grounds of claim, and the long pendency of that suit, was the reason why the plaintiff had not earlier asserted and prosecuted his claim. And the prayer of the bill was, that M’Lean and Roberts, should be compelled to convey and release to Cresap his 400 acres of The Round Bottom, to which he was entitled by the settlement right. ; *•*: : 1 : : : :

M’Lean, in his answer — 'after shewing, that general Washington, when he sold The Round Bottom to him for 5870 dollars, believed that there were only 587 acres in the tract, the quantity mentioned in his grant of October 1784, and acknowledging that the lines of the survey and grant contained 1293 acres; and after explaining the incongruity apparent on the face of the certificate of survey, namely, that the certificate shewed the survey to have been made, some time before the military warrants therein referred to, as the foundation of right to the land surveyed, had been issued; and shewing, that the very circumstance of this supposed incongruity appearing on the face of the survey and grant, repelled the inference of fraud attempted to be drawn from the fact of the survey having been made before the warrants were issued — insisted, that he had a right, as against all private claimants, to the whole quantity of 1293 *acres included within the lines of the grant under which he claimed, notwithstanding the mistake made in the survey and grant as to the quantity; that the excess of quantity included within the lines of the grant, over and above the quantity intended and in the grant expressed to be granted, presented a question between the grantee or those claiming under him and the commonwealth alone; that if the commonwealth might, by proceeding in due time, have avoided the grant for the excess, yet it was not competent to any individual to avail himself of the objection for his own private advantage. He did not admit, that M. Cresap the elder had ever made any settlement on The Round Bottom, before the survey thereof was made by colonel Crawford for general Washington, and he called for proof of the alleged settlement. He denied, that he had any notice of the claim of the plaintiff, at the time he made the purchase and received the conveyance from general Washington; but he admitted, that he heard of it shortly afterwards, when he went to take a view of the land, and that 2000 dollars of the purchase money were yet due to general Washington’s estate. He denied, that the plaintiff had at that time ever had possession of any part of the land: he said, he found the land in a state of nature, when he took possession of it, and put his tenants upon it, in 1798-9; that the grant to general Washington vested the legal seizin in him, and the right of possession followed the title; that by his conveyance to M’Lean, the seizin and possession was transferred to him; that he accordingly took immediate possession, and had thenceforth continued to hold the land, making valuable improvements upon it, and paying the public taxes, except for a few years, during which the plaintiff, having unlawfully taken possession, held the same, until M’Lean regained the possession. And he relied on the great length of time that had elapsed since the plaintiff’s pretended right accrued, and his own long possession, as a conclusive bar to the equity asserted in the bill.

There were several depositions filed, the most material of which was that of Joseph Tomlinson, the alleged coterminous *settler with Cresap, on The Round Bottom. He deposed, that he and his brother made a settlement on that land, in 1771, before colonel Crawford made any of his military surveys; that he was employed by colonel Crawford as a hand to-assist in his surveys; that when colonel Crawford got to The Round Bottom, and signified his intention to make a survey of it, the witness informed him of his own prior settlement, and objected to the survey' being made, upon which colonel Crawford told him, that he had been requested by general Washington to make a private survey of this- land for him, and that as a private survey- only was intended, it could do the witness no harm; and that colonel Crawford thereupon proceeded to make the survey. That M. Cresap the elder, made his settlement on The Round Bottom in the year 1772; he in fact made two settlements there in that year. But it appeared, that from April 1781 (when the agreement was made before the land commissioners, between this witness Tomlinson and the Cresaps, to divide , The Round Bottom between them) until the year 1823, there had been a contract existing between the witness and the Cresaps, that the title to The Round Bottom should be prosecuted at their joint expense and for their joint benefit; and this partnership was not dissolved till 1823, shortly before the deposition was taken.

It appeared in proof, that the plaintiff was the youngest child of M. Cresap the alleged settler, and that he was born in October 1775, and, consequently, attained to full age in 1796.

• The fact of M’Lean taking possession of the whole of The Round Bottom in 1798-9, was proved. But Cresap leased the part claimed by him, to a tenant, during the years 1810, ’ll and ’12, and received the rent; and, then, M’Lean regained the pos*151session, and thenceforth continued to hold it.

The chancellor dismissed the bill with costs; and Cresap appealed from the decree to this court.

Stanard, for the appellant.

Johnson, for the appellee.

*

He decided the cause in the court of chancery.

†

The principal case was cited in Hughes v. Caldwell, 11 Leigh 351.

*

There was notiling' extraordinary or irregular in this. It is 'believed, that all or most of the military land bounty surveys under governor Dinwiddle’s proclamation, were made before the military warrants were issued; those for whom the surveys were made, taking up such land as they wanted, and designing to procure the military rights afterwards, which should entitle them to the quantity so taken up. Very many of the surveys were made in *1771,*under authority of the order in council, before any particular military warrants had been issued; and it was the design of the order of council to enable the claimants of the bounties, to take up lands in anticipation of the warrants, and this, in order to obviate the danger of the good lands being all appropriated by prior settlements. At least, the reporter has always understood that such was the case; though he would be much at a loss to recollect his authority for this piece of local history. — Note in ■Original Edition.

*'CARR, J.

There were many points raised, and elaborately discussed, in the argument of this case at the bar. I think more than one of them justify the decree of the chancellor. I shall, however, rest my opinion, on the equitable bar of the statute of limitations alone.

General Washington’s patent bears date the 30th October 1784. Whatever may have been the irregularity of the proceedings previous to the grant, this court has decided, that it carried the legal title; M’Lean v. Tomlinson, 5 Munf. 220; and that question is not now before us. Neither is it material to inquire, what is the effect, in equity, of such irregularities, further than to say, that I do not think they amount to fraud. With respect to notice at the time of the survey, of the settlement of Cresap, I must say, in the first place, that the evidence is extremely slender, to prove that there ever Was such a settlement. It depends mainly on the deposition of Tomlinson ; and he comes in a most suspicious and questionable shape. From 1781 (when he agreed before the land commissioners with the Cresaps, to divide The Round Bottom between them) up to the year 1823, there seems to have been a contract, that the title to the whole bottom should be prosecuted at their joint expense, for their joint benefit. In 1823, this partnership was dissolved; but though this step might restore his competency, it could not remove the bias which goes so strongly to his credit. But if we admit, that M. Cresap the elder did make a settlement, it is clear that colonel Crawford had no notice of it, and could have none; for he made the survey in 1771, and even Tomlin-son tells us, that the settlement was not made till 1772. The actual notice, then, of a prior, equitable right, which this court has said makes a disturbance of that right fraudulent, does not belong to this case.

It was said, that the facts attending the survey shew, that it was a fraudulent proceeding, because the survey was postdated, and the warrants on which it was made, were issued after it bore date. I repeat, it does not seem to me that this was fraud; and, I think, this court, in deciding that the grant carried the legal title, said as much; for as these irregularities ^appear upon the face of the patent, they could be noticed as well at law as in equity, and fraud is as fatal in the one as the other forum, where it can be gotten at.

But suppose this was a fraud, it was known to the party, and in that case we know that the statute runs against him. Cresap’s patent was issued the 3rd February 1791. The parties had before had notice, by the caveat, that general Washington claimed this land by grant issued prior to 1785. The youngest son and child of M. Cresap the elder, and the plaintiff in this cause, was born in October 1775, and consequently came of age in October 1796. From that time to the filing of this bill, was twenty-six years. The land being in a state of nature, and wholly unoccupied, the possession accompanied the legal title. But more than this, in 1798-9, M’Lean, claiming under general Washington, went to the land, took actual possession, and placed tenants upon it. From this date to the filing of the bill, was twenty-three years. Will it be said, that the sort of possession by Cresap, taken in 1810, Tl, ’12, will prevent the bar? That was a trespass. The appellant knew that the legal title was against him, — that his only pretence of claim, was an equity, which could never be put in a course of decision by this proceeding. Indeed, the bill itself seems to consider this proceeding in pais, as not affecting the possession; for it says, in so many words, that M’Lean, finding the land unoccupied, took possession, and still holds it, and availing himself of his elder grant, insists on retaining possession, in exclusion of the plaintiff’s rights. Here is, then, twenty-three years of actual adversary possession, without any thing to take the case out of the statute; which is expressly relied on in the answer. I cited in Carr v. Chapman (ante, p. 171), many cases as to the effect of time; but these were not as to the equitable bar of the statute. The law is equally well settled on this point. 3 P. Wms. 287; Bond v. Hopkins, 1 Sch. & Lef. 413; Hoveden v. Ld. Annesley, 2 Id. 607, 632; Ld. Cholmondeley v. Ld. Clinton, 2 Jac. & Walk. 138. This last was a great case, and most elaborately examined. The master of the rolls, held, that both on principle and authority, *the laches and non-claim of the rightful owner of an equitable estate, for a period of twenty years, (supposing it the case of one who must, within that period, have made his claim in a court of law, had it been a legal estate), under no disability, and where there has been no fraud, will constitute a bar to the equitable relief, by analogy to the statute of limitations, if during all that period, the possession has been held under a claim unequivocally adverse, and without any thing having been done or said, directly or indirectly, to recognize the title of such rightful owner by the adverse possessor. It will be observed, that this is most strongly put; it was a case of no doubtful claim, but the rightful owner of an equitable estate was thus barred. The case went to the house of lords, and was affirmed, both lord Eldon, and lord Redesdale stating it as settled law, that, in a case of actual adverse possession, twenty years constitute a bar. The last I shall notice is Elmendorf v. Taylor, 10 Wheat. 152, where twenty-one years had elapsed: chief justice Marshall examined the subject and the cases, with great clearness and force; and the decree of the court, on this point, is thus expressed —“And this court is further of opinion, that in cases of adversary title, such an adversary possession as would bar an ejectment (did the plaintiff possess the legal title) constitutes also a bar to a bill in *152equity. I think the decree should be affirmed.

BROCKENBROUGH, J., concurred.

CABEEE, J.

This is a bill filed in the year 1823, to set aside a grant which issued in 1784. The grantee had, from 1784 to 1798, had legal seizin which the commonwealth’s grant confers; and in 1798, his vendee took actual possession of the land, which he has held ever since; except that, in the year 1810, the appellant acquired the possession of part, by trespass, and held it for that and the two succeeding years.

If this were an ejectment, I am not prepared to say, that the possession of Cresap, though acquired by trespass, and *held for so short a time, would not have prevented the application, in a court of law, of the statute of limitations. And, as the plea of the statute is not more efficient in equity than at law, I cannot say, that it could have been successfully relied upon, as a bar to this bill.

But the doctrine of the equitable bar of the statute of limitations, is materially different from that bar which courts of equity oppose to stale demands, after great laches and long acquiescence. In the former case, nothing less than twenty years adversary possession will suffice. But, (as was said in argument, in the case of Cholmondeley v. Clinton, 2 Mer. 302,) as to acquiescence, the court has no fixed time. It judges from circumstances and convenience; and therefore, in some instances, a less period than twenty years has been held to bar. I am perfectly satisfied of the correctness of this remark. The cases of Swanton v. Raven, 3 Atk. 105, Stockley v. Stockley, 1 Ves. & Beam. 23, and many others, afford instances where this distinction has. been acted on. I have seen very few cases, if any, which more imperiously required its application, than the present. It would be mischievous in the extreme, after thirty years of acquiescence (during the greater part of which time, the party was under no disability) to set aside a solemn grant on vague, doubtful and uncertain parol testimony, relating to transactions which occurred fifty years before the institution of the suit, and long after the death of all those capable of explaining them. On this ground, without considering any other, I am clearly of opinion, that the decree should be affirmed.

Decree affirmed.