Holmes v. Trout
32 U.S. 171 (1833)

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U.S. Supreme Court

Holmes v. Trout, 32 U.S. 7 Pet. 171 171 (1833)

Holmes v. Trout

32 U.S. (7 Pet.) 171

Syllabus

Questions on the validity of certain entries of lands in the State of Kentucky.

A survey itself, which had not acquired notoriety, is not a good call for an entry. But when the survey has been made conformable to the entry and the entry can be sustained, the call for the survey may support an entry. The boundaries of the survey must be shown. This principle is fully settled by the decisions of the courts of the State of Kentucky.

It has been a settled principle in Kentucky that surplus land does not vitiate an entry, and a survey is held valid if made conformably to such an entry.

The principle is well settled that a junior entry shall limit the survey of a prior entry to its calls. This rule is reasonable and just.

Until an entry be surveyed, a subsequent location must be governed by its calls, and this is the reason why it is essential that every entry shall describe with precision the land designed to be appropriated by it. If the land adjoining to the entry should be covered by a subsequent location, it would be most unjust to sanction a survey of the prior entry beyond its calls, and so as to include a part of the junior entry.

The locator may survey his entry in one or more surveys, or he may, at pleasure, withdraw a part of his entry. When a part of a warrant is withdrawn, the rules of the land office require a memorandum on the margin of the record of the original entry, showing what part of it is withdrawn.

In giving a construction to an entry, the intention of the locator is to be chiefly regarded, the same as the intention of the parties in giving a construction to a contract. If a call be impracticable, it is rejected as surplusage, on the ground that it was made through mistake; but if a call be make for a natural or artificial object, it shall always control mere course and distance. Where there is no object called for to control a rectangular figure, that form shall be given to the survey.

No evidence can be looked into in this Court, which exercises an appellate jurisdiction, that was not before the circuit court, and the evidence certified with the record must be considered here as the only evidence before the court below. If, in certifying a record, a part of the evidence in the case had been omitted, it might be certified in obedience to a certiorari, but in such a case it must appear from the record that the evidence was used or offered to the circuit court.

Under the laws of Kentucky, the canceling of a deed does not reinvest the title in the grantor.

Page 32 U. S. 172

In the circuit court, the appellants filed their bill in November, 1815, setting forth a title to 10,000 acres of land derived under an entry made by Edward Voss on 11 October, 1783, upon which patents duly issued, and charging that the defendants were in possession of the said lands, claiming title under entries made subsequent to that of Edward Voss. The bill prayed a discovery, that the defendants might be decreed to convey to the complainants their respective claims, to render possession of the land withheld, and for other and further relief.

After various proceedings in the case, by amended bills and otherwise, from 1815, the circuit court, at May term, 1829, gave the following opinion and decree:

The complainants state in their bill, that "Edward Voss, on the 11th day of October 1783, made, with the surveyor of the proper county the following location: Edward Voss enters 10,000 acres, by virtue of two Treasury warrants, Nos. 8991 and 8990, beginning at the northwest corner of Patton's 8,400 acres survey; thence, with Allen's line, westwardly to the river, and along Robert's line on the east for quantity; also, 5000 acres by virtue of Treasury warrant, No. 8989, beginning at the southwest corner of Patton's 8,400 acres survey, then westwardly with Patton, Pope and Thomas' survey; thence up the river, and on Patton's line on the east, for quantity." That surveys having been duly executed on said entries, the same were assigned to a certain Peyton Short, to whom patents were issued, bearing date the 12th and 14th days of March 1790; that on the 10th day of December 1796, Short conveyed to John Holmes, by deed, his whole claim to the land in controversy, but that by contract, it is now jointly held by the said Holmes and the other complainants; and that the above deed is held for their joint benefit. The complainants further state, that conflicting entries have been made by different persons, since their location on the same land, and elder patents obtained; and they pray that a conveyance may be decreed to them, on the ground of their prior equity. In their answers,

Page 32 U. S. 173

the defendants deny the equity set forth in the complainants' bill, and, having the elder legal title founded upon valid entries and surveys, they pray that the bill may be dismissed.

Since the commencement of the present term, the complainants have filed an amended bill stating that the whole of the land in contest was purchased for the use and benefit of Holmes, Slater, Caton, and O'Mealy, and that subsequently, by the consent of Caton and Slater, O'Mealy became their trustee; that an agreement was entered into between the complainants and a certain John Breckenridge, deceased, by which he undertook to render certain services for which he was to have one moiety of the land; that the original deed to Holmes, never having been recorded, was handed to said Breckenridge, with other papers relating to the business, and with directions to Short to make a deed to the complainants and Breckenridge; that the said Breckenridge was in possession of the deed to Holmes, and authorized to receive a conveyance from Short to himself, and the complainants agreed with Short to cancel the deed to Holmes, which was done, by delivering it to Short, who cancelled it by erasing his name, and a new deed was made by him to Breckenridge, and to William O'Mealy, as trustee for John Holmes and William Slater, and to High Thompson, as trustee for Richard Caton, bearing date 21 September, 1804. The amended bill further states that Breckenridge departed this life in 1806, before his part of the contract was performed, and that a bill was filed against his heirs by the complainants for a reconveyance of the land; that on the final hearing of this case, the court decreed that, as Breckenridge had but in part performed his contract, the deed should be cancelled as to all the lands within two adverse claims, to-wit, that of the defendant Howard and _____ Williams or Brown, and the complainants were decreed to convey to Breckenridge's heirs one moiety outside of these claims; in pursuance of this decree, deeds were executed. The complainants state that the whole of the land in controversy is included in John Howard's claim, under which the defendants claim, and is referred to in the deed from Breckenridge's heirs to them, and that since the date of such deed, the equitable title has been vested in them. To the amended bill Jeremiah Trout, Daniel

Page 32 U. S. 174

Trout, William Buchannan, Jacob Overpeck, John Moreland, Walter A. Moreland and William Moreland, defendants, answer, that they, with those under whom they claim, have been in the actual occupancy and peaceable possession of all the land claimed by them, in their former answers, for upwards of twenty years before the filing of the amended bill, and they deny the statements contained in it.

On filing the amended bill, the parties agreed that the suit should progress in the names of the parties to the record and that no advantage should be taken on account of the death of either of the parties since the pendency of the suit, and that the decree should be as valid as if the heirs of any such party were before the court. It was also agreed that John Howard entered on the land in controversy by virtue of his claim of 7,945 1/2 acres, by his tenants, and within the claim of C. Clarke; that the entry was within the boundary of said Clarke, and that Howard's claim wholly covered the claim of Clarke; that this entry was made in the year 1804, and continued without interruption, adverse to the claim of Voss and Short, set up by the complainants, until the year 1813, when Howard, in an action of ejectment, by virtue of Clarke's claim was evicted and possession taken by William Moreland, deceased, a purchaser from Clarke, and that such possession was continued by said Moreland until his death, and that his devisees have remained in the possession adverse to the complainants ever since. It was admitted that Daniel Trout, deceased, in the year 1808, purchased the claim of Daniel and Hite's 600 acres within the tract claimed by complainants, and at that time, by his two sons, Daniel and Jeremiah, entered into the possession, which is still continued; that the defendants, Overpeck and Buchanan, in the year 1818, entered in the possession of the above tract under the said Daniel and Jeremiah, and have resided on it until the present time, all of whose possessions are adverse to the complainants. The grant to Daniel and Hite is admitted to be elder in date than Howard's or any other interfering claim; Clarke's grant is elder than Howard's, and Short's bears date after Howard's.

As the defendants possess the elder grant, the complainants must rely on their prior equity, and to show

Page 32 U. S. 175

this they endeavor to sustain the entry of Voss, under which they claim. This entry calls to begin at the northwest corner of Patton's 8,400 acres survey, and for Allen and Roberts' line. Patton's entry was made on 26 December, 1782, for 8,400 acres, upon a Treasury warrant, No. 12,311, about two miles up the first branch above the Eighteen-Mile Creek, beginning at a tree marked "J.P.", to run north five miles, then to extend off at right angles for quantity; this entry was surveyed on 20 September, 1783, and calls to begin at a mulberry, elm, and sugar tree marked "J.P.", standing on the bank of the first large creek running into the Ohio, above the Eighteen-Mile Creek, two miles up the said creek. On 11 October, 1783, John Allen entered 1,000 acres, part of a Treasury warrant, No. 14,198, beginning at the northwest corner of Patton's 8,400 acres survey and running with his line south 250 poles, thence down the creek on both sides westwardly for quantity, to be laid off in one or more surveys. Roberts' entry was made on 26 December 1782, the same day Patton's entry was made.

It is argued by the counsel for the defendants that Patton's entry, on which Voss' entry depends, is void for want of certainty and notoriety in its calls. The depositions of several witnesses have been read to sustain this entry. William Meriwether swears that Eighteen-Mile Creek was known previous to the year 1782, and that Patton's Creek is the first one running into the Ohio above Eighteen-Mile Creek except Bell's Spring Branch, which is not much more than a mile in length; that Patton's Creek was so called from the time the above entry was made, and was generally pretty well known by that name as early as October 1783. He does not recollect the year he became acquainted with the tree marked "J.P.", but he thinks, within a year or two after the entry was made he was at the tree, about two miles up Patton's Creek, lacking forty poles, in company with persons who were about purchasing Patton's entry. The letters "J.P." were very large, and marked on a mulberry tree standing near the creek; that Patton informed him of the entry shortly after it was made, and that he had marked the tree and ran one of the lines before the entry was

Page 32 U. S. 176

made. He states that from the appearance of the tree, he has no doubt of its having been marked at the time, as represented by Patton. He further states he thinks it would be almost impossible for any person to have searched for the tree without finding it after finding the beginning corner of Patton's entry and survey; it would not be difficult, he states, for a subsequent locator to find the northwest corner by tracing the line; that he has traced this line several times to the corner, on the top of a bill, at a sugar tree and two ashes, which were plainly marked. At the beginning corner of Patton's survey, the witness states, there was an appearance of a large encampment, and several trees were marked, some with the letters "J.P." and others with the initials of his own name, and that the trees about the place were much chopped. Benjamin Roberts states that he believes Eighteen-Mile Creek has been generally known since the year 1780, and that he saw it in 1783; that Patton's Creek is the first one of any notoriety running into the Ohio above the Eighteen-Mile Creek, and it was generally known by that name in the spring of the year 1783. He thinks that a good woodsman, by searching up the creek agreeable to the calls of Patton's entry, could have found his beginning corner. Joseph Saunders states that he knew Eighteen-Mile Creek in June, 1780; that Patton's Creek is the first creek of any note above Eighteen-Mile Creek, and its name was derived from the entry of Patton. He states that in May, 1783, Patton showed him a mulberry tree marked "J.P." standing on the bank of Patton's Creek about two miles from the mouth, and said it was his beginning corner; the letters "J.P." were large and appeared to have been marked with a tomahawk, and the witness thinks the tree might have been found by anyone searching for it. Several other witnesses were acquainted with Patton's entry at an early period and with its principal calls, but not until some years after it was made.

No doubt can exist, that the Eighteen-Mile Creek was notorious at the time the entry was made, and that the branch called for is the one known by the name of Patton's Creek; between this creek and the Eighteen-Mile Creek there are one or two small branches, neither of which could be taken for the call in the entry, but it is objected to the entry that the call, "about

Page 32 U. S. 177

two miles up the first branch," is not sufficiently definite to direct a subsequent locator to the marked tree, that the side of the creek on which this tree stands is not designated, nor its distance from the creek, and that, by actual measurement on a straight line from the mouth of the creek, the distance to the tree falls forty poles short of two miles. It is also contended, by the calls of the entry, it would seem to have been the intention of the locator that the body of the land should be about two miles up the creek, rather than that point should constitute his beginning corner. This objection seems not to be well taken; the words of the entry are "James Patton enters 8,400 acres, &c., about two miles up the first branch above the Eighteen-Mile Creek, beginning at a tree marked J.P.,'" and no one, it is believed, could mistake these calls or hesitate to conclude that the tree marked was the beginning corner; from this corner, the entry calls to run five miles north, &c. The rule which governs in the construction of entries has been long fixed, and if this were not the case, it would obviously result from circumstances. Entries were made at an early day by individuals who were more acquainted with the stratagems of savage warfare than the precision of language; they were better hunters than critics. Entries must be construed by the popular signification of the words used, rather than by the grammatical arrangement of sentences. If the intention of the locator can be satisfactorily ascertained from the calls of his entry, it must be sustained. The call to run up the creek, in popular signification, directs the inquirer to follow the stream; as the Eighteen-Mile Creek is below Patton's Creek, any person beginning his search at that point for the marked tree would trace the Ohio to Patton's Creek, and would naturally seek for the marked tree on the lower side about two miles from its mouth; but it would not be unreasonable to require a search on both sides of the creek. This search would somewhat increase the labor of a subsequent locator, but it would scarcely lessen the probability of finding the object. No witness saw the tree when it was marked, but Meriwether saw it one or two years afterwards, and from the appearance of the letters "J.P.", he seems to have no doubt that they were made at the time Patton represented them to have

Page 32 U. S. 178

been made. Saunders saw these letters in 1783, and the tree was pointed out to him by Patton, as his beginning corner; this was within five months after the entry was made, several months before the entry of Voss. Several witnesses state that the beginning of Patton's entry could be found, by observing its descriptive calls. The variation of forty poles on a straight line from the distance called for in the entry is not considered very material. The circumstances under which this entry was made would authorize no one to expect greater accuracy; forty poles more or less than the exact distance of two miles is a sufficiently limited range for a subsequent locator.

Under all the facts established, the Court is of opinion that the entry of Patton is shown to possess all the requisites of a valid entry; this entry was surveyed on 20 September, 1783, twenty days before the entry of Voss. Voss' entry calls for the survey of Patton, though it does not appear at that time to have been recorded; the northwest corner of this survey, which is the beginning called for in Voss' entry, could easily be found by tracing the line from Patton's beginning corner; any variation in the length of this line, from the calls of the entry, cannot be material as to the defendant's entry, as the distance is controlled by the marked corner proved to have been made. The other calls in the entry of Voss are believed to be sufficiently certain to enable the holder of a warrant to locate the adjacent land, and that is a substantial compliance with the requisitions of the land law.

The other entry of Voss for 5,000 acres, which calls to begin at the southwest corner of Patton's 8,400-acre survey, contains all the requisites of a valid entry. To show a title from the patentee, a deed, bearing date 10 December, 1796, from him to John Holmes for 13,500 acres is given in evidence. The signature of the grantor in this deed has been erased, apparently with the view of canceling it, but it is contended that if such an inference can arise from the erasure, it does not reinvest the fee in the grantor; that this can only be done by the solemnities of a deed duly executed. One of the subscribing witnesses to this deed, whose deposition is introduced to prove its execution states that he was written

Page 32 U. S. 179

to by Short to endeavor to make sales of the land for him; that upon being told by Holmes what was the best he could do with it, the witness advised him to sell it and told him that he thought Short would be satisfied, and the witness understood the land was sold. The witness states that from his letter book this deed appears to have been forwarded by him to Holmes on the 3 January, 1797. A letter from Short to Holmes, dated 29 September, 1794, in which he proposes to sell the lands at a certain price is read in evidence. This letter, however, treats Holmes as an agent to sell the land, and not in the light of a purchaser. An obligation signed by Short, dated 10 December, 1796, is also in evidence. In this obligation Short states that he

"has executed a deed to Holmes of that date for two certain tracts of land containing 13,500 acres, which said deed is deposited in the hands of W. Morton, of Lexington,"

and that should Holmes be dissatisfied with the warranty given in said deed, and it is not in pursuance of the meaning and intention of the above letter, he agrees to enter into such an instrument of writing. From the whole of this evidence it would seem to authorize the conclusion that the deed executed to Holmes was only designed to enable him to sell and make titles to the lands for the benefit of Short, but if any doubt remained on the subject, it is removed by a subsequent deed executed by Short for the same lands to Holmes and others, without any reference to the former deed, and by the amended bill of the complainants, who state that the first deed was cancelled by agreement between Breckenridge and Short and that they claim title under the one subsequently executed. The first deed, though absolute upon its face, was intended to make Holmes a trustee for the use of Short, and the Court has no difficulty under the circumstances in considering it a nullity so far as it relates to the present controversy; this deed has never been recorded, nor does it seem to have been treated by the parties as a valid instrument. There is no satisfactory proof of its delivery. From all the facts, it appears most probable that it was forwarded to Breckenridge by Caton or some other person, and that it was never in the possession of Holmes nor intended to be delivered to him. By a letter, dated 13

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January 1803, Holmes, by his trustee, O'Mealy, requested, W. Morton to surrender the deed to Breckenridge, who was authorized to receive a conveyance of the land from Short. The complainants must rely upon their conveyance from Short, dated 21 September, 1804. This deed conveys to John O'Mealy, trustee for John Holmes and William Slater, and to H. Thompson, trustee of Richard Caton, and to John Breckenridge, the tracts of land set forth in the bill.

From the amended bill it appears that Breckenridge was entitled to one moiety of the entire claim as a compensation for certain services to be rendered by him, that he died before the services were completed, and that the complainants filed their bill against his heirs and obtained a decree that cancelled the deed to certain parts of the land, which, in pursuance of such decree, were conveyed by the heirs of Breckenridge to the complainants. A question is here made by the defendants' counsel whether the title set up by the complainants in their amended bill, being different from that stated in the original bill, is not in fact the commencement of a new suit, and consequently gives to the defendants a right to insist on the statute of limitations in bar to the complainants' right of recovery. If such shall be the effect of the title set forth in the amended bill, it is agreed between the parties that advantage may be taken of it. In the first bill filed, the title is stated to have been derived from Short, the patentee to Holmes, with whom contracts were made by the other complainants for certain interests in the land. The amended bill sets up a title by deed from Short to John O'Mealy, trustee for John Holmes and William Slater, and to H. Thompson, as trustee for Richard Caton, and to John Breckenridge.

Between these derivations of title, in law there is an essential variation, but not in equity. The equitable interests of the parties may be the same under both deeds. In the first bill, the complainants state that although the title was acquired and is held by Holmes from Short, yet by contracts with said Holmes, the estate is their joint property, and that Holmes held it for their use; such an alteration in this bill as to state the deed to have been made by Short to the complainants instead of to Holmes does not change the complainants' equity, and cannot be

Page 32 U. S. 181

considered as the institution of a new suit. The case is, however, different so far as it respects the interest of the complainants under the decree against the heirs of Breckenridge. A conveyance from them to the complainants of a part of the land conveyed by Short to their ancestor was decreed on the ground that the consideration had in part failed. Breckenridge died before the services he agreed to render were fully performed. In the deed to him there was no reservation or condition. It was only by the aid of a court of chancery that the right of the complainants would be established and enforced against a part of the land. Until the decree which cancelled the deed was pronounced, the complainants possessed no claim in law or equity to the land in question which could be rendered effective against the claim of the defendants. To the decree, therefore, must the complainants look for the origin of their claim to the land. This decree was obtained in November, 1822, and for the first time a claim is set up under it in the amended bill.

Under the agreement of the parties, this part of the bill must be considered as the substitution of a distinct right essentially different from any pretense of claim contained in the first bill, and consequently cannot be considered in a more favorable point of view, as to the statute of limitations, than the assertion of the same right in a bill filed at the present term. It will follow, therefore, that the title to the land conveyed to the complainants, under the decree against the heirs of Breckenridge, so far as it covers the land which has been occupied by the defendants and those under whom they claim adversely to the complainants for twenty years before the filing of the amended bill, in law and equity is vested in the defendants. The balance of the tract claimed by the defendants within the entry of Voss must be relinquished to the complainants, as they hold the prior equity. The interfering claims will limit Voss to the calls of his entry, but the surveys are not protracted in such a manner as to enable the court satisfactorily to designate the boundaries of the parties as fixed by this decision. Unless, therefore, the parties, from their local knowledge of the land, shall be able to lay down the interferences, it may be necessary to direct a survey.

Page 32 U. S. 182

"And afterwards, to-wit, on a subsequent day of the term and year last aforesaid, to-wit, the May term, 1829, the court orders and decrees that Jonathan Taylor, Surveyor of Oldham County, do lay off the land in controversy by beginning at James Patton's northwest corner, designated on the connected plat, and lay down James Allen's entry of 1,000 acres, running from said corner with patent line, south 250 poles, and at right angles for quantity, and also lay down said entry by running from the base line, so that the lower line will cross Barebone Creek the same distance that the base line crosses it; from Patton's northwest corner of said Allen with said lines, parallel to the several courses of the creek, within the said Allen's survey, when so made; and if Barebone will not be included within the survey of Allen when so made, the survey will be so varied as to make the creek pass out of the lower end of the survey, as near to the point of distance that strikes the upper line as the general course of the stream within the survey will admit, to include both sides of the stream. That he then lay down John Roberts' entry by running the first line thereof six miles parallel to the general course of the Ohio River from where a due west line from Patton's corner to the river will strike it to a point six miles on said river, when reduced to a straight line; that he then lay off Voss' entry of 10,000 acres by first running a due west line to the river, and, on the course of Roberts' line, until the quantity of 10,000 acres of land is obtained, and then the course of Allen's west line, when laid down parallel to Barebone, until its strikes the river; and then up the river, and with the course of Roberts' line as before directed. And that he then ascertain by metes and bounds the interference between the complainants' entry, when surveyed in each position, and the defendants' surveys. And the court does further order and direct that the surveyor aforesaid survey and lay down the said claims in any or additional positions which either party may direct and make report to the court to enable the court to make a final decree."

Afterwards, at May term, 1830, of the circuit court, the following final decree was given by the court:

"The surveyor having made his report in pursuance to the

Page 32 U. S. 183

interlocutory decree of this Court, the court does decree and order that the defendants, John Moreland, William Moreland, and Walter Moreland, convey to the complainants, with special warranty, one-half or moiety of so much of Christopher Clarke's survey of 400 acres as is included within the line designated on the surveyor's report by the letter C, and figure 2, and the original lines of Clarke's survey below or south of said line. And the court does further decree and order that the said defendants and complainants make partition of the same and that the said Jonathan Taylor, the surveyor, divides and partitions the same as nearly equal in quantity and value as is practicable, and that he report to this court for its approval the metes and bounds of the moiety allotted to the complainants. And the court does further decree and order that the said defendants, John Moreland, William Moreland, and Walter Moreland, pay to the complainants their costs herein expended. And the court does decree and order that so much of the bill as seeks redress against the defendants within the claim of Daniel and Hite, to-wit, Daniel Trout, Jeremiah Trout, Jacob Overpeck, and William Buchannan be dismissed, and that the complainants pay to them their costs. And the court do order and decree, that the suit as to the other defendants named in the bill be continued."

From this decree the complainants appealed to this Court.

Page 32 U. S. 202

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