March
1.
Marshall, Ch. J.
delivered the opinion of the court.
In this case the title of both parties originates in surveys made by the surveyor of Fincastle county, previous to the passage of ithe land law of Virginia. Both surveys were made on military warrants issued under the proclamation of 1763. The survey under which the plaintiffs claim, being prior in point of time, they have the first equitable title, and must prevail, unless the objections made to that survey be valid, or unless their equity is defeated by the circumstances of the case.
Several objections have been made to the survey, each of which will be considered.
1. It is said that the warrant was not in possession of the principal surveyor when the survey was made.
The answer given to this objection is conclusive-The warrant is an authority to, and an injunction on, the surveyor to lay off 2,000 acres of vacant land which had not been surveyed by order of council, and patented subsequent to the proclamation. Whether acts under this authority are valid or void, if the authority itself be not in possession of the officer, is perfectly unimportant in this case; because the court considers the certificate of the surveyor as sufficient evidente that the warrant was in his possession, if, in' point of law, it was necessary that it should be lodged in the office. That certificate is in the usual form, and states the survey to have been made by virtue of the governor’s warrant, and agreeably to his majesty’s royal proclamation.
2.' The second objection is, that the survey does not appear to have been recorded w.ithin two months after it was made.
The opinion, that this omission on the part of the surveyor avoids the title which accrued under the survey, is founded on the 6th, section of. an act passed in the year 1748, entitled, “ An act directing the duty of surveyors of land.”' In prescribing this duty the law, among other things, enjoins, the surveyor “ to enter, or cause to be entered, in a book well'bound, to be ordered and provided by the court of his county, a true, correct and fair copy and plat of every survey by him made during his continuance in office, within two months after making the same.”
This section is merely directory to the surveyor. It does not m^ke the validity of the survey depend-' ent on its being recorded, nor does it give the proprietor any right to control the conduct of the suryeyor in this respect. His title, where it can commence without an entry, begins with the survey ;• and it would be unreasonable to deprive him of thát title by the subsequent neglect of an officer, not appointed by himself, in not performing an act which the law does not pronounce nécessary to his title,
the performance of which he has not the means of coercing.
If the omission to record the survey in two months •would avoid it, then the omission of any other act -enjoined by the same section would equally avoid it.. The- surveyor is directed to see the land “ plainly bounded by natural bounds, or marked trees.” Has his conforming to this direction ever been inquired into, in a contest respecting the validity of a survey ? Would any gentleman of the bar contend that the land was not plainly bounded, and that, for this reason, a' survey actually made was void ? He is, within five months, to deliver to his employer a plat arid certificate. Suppose six months should elapse before he complies with this duty, is the survey •void? He is to certify thé true quantity of land contained in the survey. Would the gentlemen from Kentucky be willing to adopt it as a principle that every survey expressing a quantity more oc less than the true quantity is absolutely void ? He is to state the water-courses, and also the plantations next adjoining. Should any one of these be omitted, is the survey void ? He is to return a list of surveys in the month of June annually to the clerk’s office* Should he fair in this, are the surveys void? On these points it is impossible seriously to insist; and the court can perceive no distinction between them. They are all merely directory to the' officer, and none of them affect a title which commenced before they are to be performed. He is subjected to a penalty for failing in any one of these duties, but his performing or omitting them is unimportant to the rights of those for whom surveys have been 1 made.
3. The third objection is of more weight. It is, that the survey must be certified by the person who made it, and can be' authenticated in no other manner.
That, in point of fact, this survey was certified as made, is not doubted. But it is said that the
plat and certificate want those appropriate forma which alone the law will receive as evidence of their verity.
The survey was made by Hancock' Taylor, assistant surveyor of Fincastle county, from whose field-notes, the plat and certificate were made out by his principal, who also signed them-. Hancock Taylor was prevented from performing this duty by a mortal wound received from the Indians. It is understood tp be usual for the assistant, where surveys are actually made by him, ■ to sign the plat and. certificate, which are also signed by his principal.
The 46th section of the act, “ for settling the titles and bounds of lands, and for preventing unlawful hunting and ranging,” enacts, “ that every survey of lands
intended to be patented
shall be made and returned by a sworn surveyor duly commissioned for that purpose.”
Let us inquire whether, under this .section, the plat and certificate must be made out by the person who made the survey, and whether a survey actually made by an assistant must be platted and certified by him.
It may be of some importance, in the construction of this section, to inquire whether the return alluded to is to the office of the principal surveyor, or to the land-office, out of which the patent is to issue.
In construing this section, the accompanying sections afford us no aid. But the general object of the act, and the allusion to
patenting,
which is made in the section, would lead to the opinion that returns to the land-office were in contemplation of the legislature. If we examine the laws generally, we shall find that most usually the word. “ surveyor” is applied to the principal, and where the law alludes to the assistant, he is designated by the term u assistant surveyor.” If the return directed by this section is to be made to the land-office, for the pur
pase of obtaining a -patent, then the principal surveyor is the person who is to certify it, and a survey actually run by himself, or by his assistant, is to be considered, in law, as a survey made by himself. It is believed to be most usual for the plat and certificate returned to the land-office, to be signed by the principal and by his assistantbut this section seems not to require both. The signature of the assistant is.the justification to the principal for recording and certifying the survey, and is the best testimony that it has been made; but the law does not require, in terms, that where that best testimony- is unattainable, no other shall be received. So far- as the section which has been recited goes, the signature of the principal surveyor sufficiently authenticated this plat and that a patent has issued upon it, is proof that such was the opinion entertained in the land-office. A patent certainly does not issue of course, unless the papers on which it issues be regular. A plat not legally authenticated is no plat, and the register cannot justify issuing a patent on it.
This consideration certainly deserves some weight; but if the court inspect this section, it seems, in fair construction, to require only the signature of the principal surveyor, who, consequently, judges, in the first instance, of the testimony which will enable him to certify a survey. If the signature of the assistant can be dispensed with, then other testimony than his signature may authorize the principal to certify a
survey;
and if, in any possible case, other testimony can be deemed competent, it surely may in this.
If the return directed hy this section be understood to be a return to the office of the principal surveyor, it is necessary to inquire what it is that the section exacts. It is, that the “ survey shall be made and returned by a sworn surveyor,” not that the plat shall be made out and certified to the principal by the assistant who run the lines. The courses and distances contained in the field-book of the assistant, represent-to the principal-as correctly
and as intelligibly the survey actually made,- as: the E*at alld certificate could do. From these data he is as capable of placing on his record-book a correct plat, and of . returning that plat to the land-office, as if the lines of the survey had been placed on papefi. by the assistant himself. It would seem reasonable, therefore, even on this construction of the section^ in the actual case where death has disabled the assistant from platting his works, to consider the law as satisfied by the delivery of those works to • the principal surveyor.
The “ act directing the duty of surveyors of. land” does not -appear to this court to contain any provisions which are opposed to the construction here made of the preceding act of the same session. The 6th section' of that act, which-has been particularly referred to by counsel,-prescribes the duty of surveyors, but contains no direction respecting the signature of plats and certificates, except this: “ Every surveyor making a survey of land shall see the same plainly bounded by natural bounds, or marked trees, and within five months after survey, shall deliver to his employer a plat and certificate thereof.”
It has never been understood that this plat and certificate may not be delivered by the principal; and other parts of this section show that the duties enjoined, are- some of them to be performed by the principal. The section proceeds to say, “ and shall also enter, or cause to be entered, in a; book well bound, to be provided by the court of
his
county, a true, correct and fair copy and plat of every survey by
him,
made.” Now this book is the book' of the principal. It is, of course, his duty to superintend the entries in it. They are to be “ of the surveys by
him
made.” The survey made by the assistant, is, then, to be entered by the principal as a survey by
him
made. He is also to return annually a list of the surveys by
him
made, to' the -county court clerk’s office. This return is made by the principal. Certainly, the list must include-all the surveys made bv.
his assistants. They also are considered as made by him. Upon a' view of,the whole section, the court perceives nothing in it which renders it improper for the principal to plat and certify a survey made by his assistant whose field-notes • are returned complete to him, and who has- been disabled by death from making the plat himself.
This construction is very much, strengthened by the terms of the act of 1779. That act declares “ that all surveys of waste and unappropriated land made upon any of the western .waters belore the 1st ' day of January, 1778,” “by any
county surveyor,
commissioned by the masters of William and Mary college, acting in conformity to the laws and rules of government then in force, and founded either upon charter,” &c. “ or upon any warrant from the governor for the time being, for military service, in virtue of a proclamation either from the king of Great Britain, or any former governor of Virginia, shall be and are hereby ' declared good and valid ; but that all surveys of waste and unpatented lands made
by any other person,
or upon ■ any other pretence whatsoever, shall be and are hereby declared null and void.”
Notwithstanding this declaration, we find that patents have actually issued, under which both parties in this cause claim, on-surveys made not by the county surveyor in'person, but by his assistant. It is perfectly well known that a great proportion of the surveys recognised by this act have been really executed by assistant surveyor's. Upon what principle of construction are they brought within the aot ? Clearly upon this. The law, so far as respects the validity of the survey, considers the act of the deputy as the act of his principal. A survey made by an assistant is, in law language, made by the principal. And if this idea be taken up on so material a clause as that which confirms or invalidates every survey previously made* and which is expressed in terms much more explicit and decisive than any of the clauses in the preceding acts, must
not the idea be carried throughout ? Must not the survey, in all erases, be. considered in a legal point >of view as made by the principal through the agency of his deputy, and must not .this principal be kept in view in construing the laws upon the subject.
This survey, then, is, in law language, made by William Preston. It is confirmed as a survey made by himi The law recognises it as his survey. Assuredly, then, his certificate may authenticate it.
The act proceeds to say that “ all and every person or persons, his, her or their heirs, claiming lands upon any of the before recited rights, and under surveys made as herein before mentioned, (that is, by a county surveyor,) against which no caveat shall have been legally entered, shall, upon the plats and certificates of such surveys being returned into the land-office, together with the rights, &c. upon which they were respectively founded, bé entitled to a grant for the same.”
To the court, it seems clear that the law authorizes a plat and certificate of survey from the person whom it contemplates as the maker of that survey ; that is, from the county surveyor. The formal requisites of the law are complied with by a plat and certificate under his signature.. He has given it, in this case, on testimony, which the court deems as full and complete as even the plat certified by the assistant who made the survey would have been.
These are the objections which have been made to the survey under which the plaintiffs claim; Afte,r bestowing on them the utmost attention, the court is decidedly of opinion, that the survey of M‘Donald was and ought to be considered as a good and valid survey.
4. The 4th objection to the plaintiffs’ claim is founded on their negligence.
At law, this objection is clearly of no validity. The proviso to that section of the act of
1779,
which has been considered, declares that such starveys shall be returned to the land-office within twelve months after the expiration of that session of assembly, or should become void. The time for returning them, however, was prolonged until this patent issued. Consequently, a
caveat to
prevent the emanation of the patent, because the survey was not returned in time, could not have beets maintained. If the survey of McDonald came within the law, the circumstance, that the subsequent survey of Sumner was made without notice in fact, cannot alter the case. His warrant only Authorized him to acquire vacantdand, and he took Upon himself to find lands of that description. The principle,
caveat
emptor, is directly applicable.
5. The 5th objection made by the defendant ’isj that the patent of the plaintiffs contains surplus land. The warrant, it is said, was an authority to survey only 2,000 acres, and, for the surplus, the aurvey was made without authority.
It is a fact of universal notoriety in Virginia not only that the old military surveys, but that the old patents of that country generally contain a greater quantity of land than the patents call for. The aoeient law of Virginia notices this fact, and pro.vides for the case. It prescribes the manner. in which this surplus may be acquired by other persons
;
and it is worthy of notice that the patentee must himself reject the surplus before it can be acquired by another, and, after having so rejected it, he has the election to allot it in such part of his patent as he pleases.
It is contended, however, that although a grant containing surplus land might give a legal right to such surplus yet a survey could not be carried into grant so far as such surplus appeared upon a
caveat-
On this subject we find no act of Virginia under the regal government. At that time the governor and council constituted a branch of the legislature and the general court ,of the colony. They also held a distinct court in the council chamber for. the trial of caveats, their decisions on which were regulated by rules established by themselves. These rules, it is believed, are lost; and it is also believed that the means of ascertaining satisfactorily what they were, are no longer, attainable. The land law of 1779'was framed by men who understood them, and it is not unreasonable to suppose that, in drawing that law, some respect was paid to them. That law. gives a
caveat
against a survey not returned to the land-office within twelve months aftqr it is made, or whose breadth shall not be one third of its length, but gives no
caveat■
on account of surplus land contained in a survey, nor does it indicate the- idea that, on a survey containing such surplus, a
caveat
could not be supported.. If such survey is not absolutely. void for the whole, the difficulty of assigning, the exact quantity is sufficient to have induced legislative regulation, had it been contemplated, as the subject of a
caveat. ' It
would seem that,. for security in this respect, the government trusted to the paths prescribed for surveyors and chain carriers.' It is also worthy of remark, that the law of 1779 superadds to the restrictions formerly imposed on taking up surplus lands contained in any patent, that it can only be done during the life of the original patentee, and before any alienation has been made.
It is. also to. be observed, that the act of 1779 confirms this survey, and it is understood that no previous entry was deemed necessary to its validity. Tbe. entfies made on treasury warrants are most frequently in such terms that a survey for a greater quantity of land might he considered as beiijg so fair contrary to location, and might be restrained by the location; "but, where there is no entry, the difficulty of restraining the survey is much increased, because there exists no standard by which to reduce it. • There is, indeed, a standard as to quantity, but
siot as to form and place. The survey is an approx priation of a certain quantity of land by metes and bounds, plainly marked by an officer appointed by the government for that purpose, and it would seem that the government receives his plat and certificate as full evidence of the correctness of the ^urveyt This being the case, it is admitted by the government to be an appropriation of the land it covers, and it is difficult to discern a rule by which the survey could be reduced on a
caveat
by the owner of an. interfering survey, unless the entry on which it was made was in such terms that the excess might be considered as surveyed contrary to location. For to every and to each part of the land surveyed, its owner has an equal right.
Whatever rules might have been established in the tribunal having jurisdiction of the' subject, under the regal government, the
caveat
in this cause, had one been entered, must have been regulated by the act of 1779. That act gives validity to both surveys; and although it directs
caveats
depending in the council chamber, at the commencement of the revolution, to be transferred to the gener.al court, and to be tried by the rules which governed when they were entered, it subjects future
caveats
to the law then introduced. Under this law, as has already been stated, the court can perceive but one principle on which a survey can - be reduced on a caveat, and that principle is inapplicable to this case.
In conformity with this opinion is that of the judges of Kentucky. Not a case exists,, so far as the court is informed, in which, on a caveat, the quantity of land in the survey of plaintiff or defendant has been considered as affecting the title, upon the single principle of surplus. Yet'the^fact must have often occurred. And in the case of Beckly
v.
Brvan and Ransdale, the contrary principle is expressly Igid down. In that cause the court said, 1,1 It is proper to premise that there is but one species of cases,in which any court of justice is'authorized by, cmr land law to devest the owner of a sur
vey of the surplus included within its boundaries j namely, where ¿he survey was made posterior to an entry made by another person ,on the same land; and to do more would be unequal, and unjust, inasmuch as a survey which is too small cannot be enlarged.
This position, it is true, was laid down in a contest between a military survey and a patent on ■ a treasury- warrant. But it is laid down in terms equally applicable to a contest between two military surveys; and the court does not understand that the law has ever been otherwise understood in Kentucky.
The opinions delivered by the judges of-appeals of Virginia in the case of
Johnson
v.
Buffington,
2
Wash. 116.
would incline this court very much to the opinion that the same rule prevailed in the .council chamber before the revolution. In that case, uhder a warrant from Lord Fairfax for .300 acres of land, 450 acres had been surveyed, and the excess appeared on theplat. This, survey had lain in the office many years, and was clearly forfeitable; but Lord Fairfax had not taken advantage of the forfeiture. After his death a patent issued on-a subsequent entry and survey, and the patentee was decreed to convey to the person claiming under the prior entry. In delivering his opinion Judge Fleming said, “ The first objection made by the counsel for the appellant is, that the survey does not pursue the warrant^ but I think there is no weight in this, as the . variance" is only in the quantity, if the land hcd been
imperfectty
described, it might have been fatal.”
Judge Carrington said, “ He did not consider the variance between the warrant and survey, as to the quantity, as being of any consequence.”
The President, who had been an eminent practitioner) ih, the council chamber, said, “ He* felt‘ne
difficulty about the variance in the quantity of the land.”
The rules established by Lord Fairfax were known to conform to those of the crown, and the -declarations of the judges in this case, all of whom were acquainted, in some degree, with the usages under the regal government, make a strong impression on this court in favour of the opinion that, in the council chamber, the law was understood to be, that excess in the survey was not to be regarded.
The law of this case, then, so far as respects the state of title previous to the emanation of either grant, appears to be with the first survey. It remains to inquire whether a court of equity will relieve against the legal title acquired by the first grant.
The principle on which relief is granted is, that the patent, which is the consummation of title, does, in equity, relate to the inception of title ; and, therefore, in a court of equity, the person who has first appropriated the land in contest has the best title, unless his equity is impaired by the circumstances of the case.
In this cause, the first patentee is said to be a purchaser without notice. But, for the reasons assigned in a former part of this opinion, the court does not consider him as clothed with that character. His warrant authorizes him to survey waste and Unappropriated lands, and he undertakes himself to find lands of that description. 1 he government acts entirely on his information; and the terms of his grant are, that the lands were waste and unappropriated. It is not for him to say that he had misinformed the government, and had surveyed appropriated instead of vacant lands, and had theitby entitled himself to be considered as a purchaser without notice.
Neither does the court conceive that the.plaintiffs
have forfeited their right to come into a court or «l0^* by their negligence.
in. the case of 1
Wash.
116. the prior right of the plaintiff hád been absolutely forfeited, so that the defendant had. the first , title both in'equity and law, hnd the plaintiff’s bill was dismissed because he failed to prove the -fraud which he alleged, and which was, in that case, necessary to give the court jurisdiction.
In, the case of Picket and Dowdale, and of Currie and Burns, there were both forfeiture and abandonment.
In the case of
Johnson and Bronw,
3 Call, 259. more, than sufficient time had.elapsed between the entry and survey of the plaintiff to produce a forfeiture ; but, by the old law, notice was to be given by the surveyor before a forfeiture, could take place, and this fact was not proved. During forty years this entry had been totally neglected; and tire court ivas of -opinion that, after such a lapse of time, the fact'of notice by the, surveyor .might be presumed. This case then also turned on the principle of forfeiture. There were, besides, a great many circumstances in Johnson’s title which gave a strong bias to the judgment of the court.
The' difference between the case under consideration, and those cited is apparent. But the case of Johnson
v.
Buffington was much stronger than this. The prior survey was actually forfeitable, but had not been
forfeited;
and in that case, after a much'longer time than exists in the present, a court of equity supported it against the eldest grant.
The general principles which have been relied on, in this branch of the argument, cannot be considered as applicable to a case in which the act, which Constitutes the foundation of the charge of negligence, was performed within the time allowed by statute
for its performance, The circumstances, which excused the owners of military surveys for not returning them, were before the legislature and have been declared, by law,«to be sufficient.
But it is contended that the plaintiffs can have no equity beyond the 2,000 acres contained in the warrant on which M‘Donald’s survey was 'made.
If this court is to consider itself as merely substituted for a court of law, with no other difference than the power of going beyond the patent, this question is already decided. But, in the case of
Bodley and Hughes
v. Taylor, an.opinion was indicated .that its jurisdiction, not being given by statute; but assumed by itself, must be exercised upon the known principles’ of equity. This opinion is still thought perfectly correct in itself. Its application to particular cases, and.indeed its being considered as a rule of decision on Kentucky titles, will, depend very much on the decisions of that country. For, in questions respecting title to real estate especially, the sanie rule ought certainly to prevail in both courts.
But, in its equity, this case differs essentially from Bodley and. Hughes v. Taylor. In that case, Taylor had the eldest entry as well as the eldest patent. In this, the eldest equitable; right is with him who holds the eldest
grant. In that case, the variance between the entry and survey of. the elder right is established by a set -of rules growing out of expositions subsequent to the survey. In this, the eldest grant is founded on a survey made on land which, in point of fact, was previously appropriated. But, which is of great importance, in that case, the terms of the subsequent location prove that the locator considered himself as comprehending Taylor’s previous entry, within his location, and, consequently, did not suppose so much of the land covered by his entry as being then subject to appropriation.
He either did not mean to acquire the land within ^aylor’sr entry, or he is to be considered as a man watching for the accidental mistakes of others, and preparing to take advantage of them. What is gained at law by a person of this description, equity will not take from him ; but it does not follow that equity will aid,his views, and give more than the law giyes him, by allowing him to hold what he has legally gained, while he demands what is legally lost.
Xu this case, M.'Donald supposed himself to be appropriating, and in fact was appropriating, land to Which no other had, at the timé, any pretensions.
■In addition to these strong differences, in equity, between the two cases, uq decision of Kentucky was ■shown to tha court, .which was applicable to the.case of Bodley and Hughes
v.
Taylor. But the case of Beckly w. Bryan and Rausdale is conceived to be an authority in point for this case. 1’he decision of the court of appeals of Virginia, in the case of Buffington and Johnson is also considered as expressly in point, ,and is to be respected, because both, these' surveys, were made while the country in which they were made. formed a part of Virginia.
,It is thought not absolutely unimportant, in a. court of equity, that one of the circumstances has occurred, which, at law, rescues the surplus land in McDonald’s patent from the possibility of being acquired by any other person. An alienation has tajeen place.. The decree, therefore, of the court fqr .the district of .Kentucky, is to be reversed, and. the defendant must be decreed to release to the plaintiffs, respectively,, the lands within Sumner’s patent which lie within the lines of die land conveyed by M‘.Donald’s heirs to them respectively.