The land law of Virginia, which gives a right of preemption to
those who had marked and improved land before the year 1778, refers
that right to the time when the improvement was made and to the
time of the passage of the act, and not to the time when the claim
for such preemption was made before the court of commissioners.
If an entry be made by the assignee of a preemption right, it
will be good although the name of the assignor be not mentioned in
the entry if the entry refers to the warrant and if it mentions an
improvement, provided the place be described with sufficient
certainty in other respects.
A bill in equity to enjoin a judgment at law is not to be
considered as an original bill, and therefore it is not necessary
in a court of limited jurisdiction to make other parties if the
introduction of those parties should create a doubt as to the
jurisdiction of the court.
A complainant in equity cannot obtain a decree for more than he
has asked in his bill.
The facts of the case, as stated by THE CHIEF JUSTICE in
delivering the opinion of the Court, were as follow:
Charles Simms, the plaintiff in error, having obtained a
judgment in ejectment for certain lands lying in Kentucky, in
possession of the defendants for which the said Simms held a patent
prior to that under which the defendants claimed, a bill of
injunction was filed by them praying that he might be decreed to
convey to them so much of the land in their possession as was
included within his patent.
It appeared in evidence that in the year 1776, a company of whom
John Ash was one marked and improved several parcels of land lying
on the waters of Salt River. John Ash made an improvement on the
waters of the Town Fork of Salt River, soon after which William
McCollom, another member of the same company, made an improvement
at a spring on the same stream about seven hundred yards below him.
Ash complained that McCollom had encroached on his rights by
approaching too near him, upon which they agreed to decide by lot
who should be entitled to both improvements. Fortune determined in
favor of Ash, and McCollom relinquished his rights and improved
elsewhere. Ash afterwards amended both improvements and planted
peach stones at that which was made by himself.
In April, 1780, before the court of commissioners appointed in
conformity with the act generally denominated the previous title
law, John Ash obtained a certificate in the following words:
"John Ash, Sr., claimed a preemption of 1,000 acres of land in
the District of Kentucky on account of marking and improving the
same in the year 1776, lying on the waters of the
Page 13 U. S. 20
Town Fork of Salt River about two miles nearly east from Joseph
Cox's land, to include his improvement. Satisfactory proof being
made to the court, it is of opinion that the said Ash has a right
to a preemption of 1,000 acres of land, to include the above
location, and that a certificate issue accordingly."
This certificate was assigned to Terrell and Hawkins, who, in
April, 1781, made the following entry thereon in the surveyor's
office of the county in which the lands lie:
"Terrell and Hawkins entered 1,000 acres, No. 1226, on the
waters of the Town Fork of Salt River, about two miles nearly east
from Joseph Cox's land, to include his improvement."
This entry was surveyed and patented, and the defendants claim
under it. The date of this patent was on 6 March, 1786.
The entry of Charles Simms was made on 13 April, 1780, his
survey on the 25th of the same month, and his patent issued on 19
The claim under an improvement being of superior dignity to that
of Charles Simms, his title must yield to that of the defendants in
error if theirs be free from objection.
The land law of Virginia, under which all parties claim,
requires that locations shall be made so specially and precisely
that other persons may be enabled with certainty to locate the
The situation of Kentucky, covered with conflicting titles to
land, has made it necessary that this requisition of the law should
be enforced with some degree of rigor, while the ignorance of early
locators, the dangers to which they were exposed, and the
difficulty of describing with absolute precision lands which were
held by a very slight improvement made on a single spot, and which
could not be immediately surveyed, induced the courts of that
country, for the purpose of preserving entries as far as was
consistent with law, to frame certain general rules of very
extensive application to cases which occurred. One was that the
designation of any particular spot of general notoriety, or such a
description of it in relation to some place of general
Page 13 U. S. 21
as would clearly point it out to subsequent locators, would give
sufficient notice of the place intended to be appropriated, and
that a failure to describe the external figure of the land should
be supplied by placing the improvement in the center and drawing
round it a square with the lines to the cardinal points, which
should comprehend the quantity claimed by the location.
The court below was of opinion that there was sufficient
certainty in the certificate of John Ash, Sr., and in the entry
afterwards made with the surveyor by Terrell and Hawkins; that the
improvement intended to be claimed by Ash was that which he won of
McCollom, and that the land should be surveyed in a square form
with the lines to the cardinal points, including the improvement
won of McCollom in the center. A survey having been made in
conformity with this interlocutory decree, the court ordered the
defendant below to convey severally to the plaintiffs in that court
so much of the land claimed by them as was included in his patent.
To this decree Charles Simms has sued out a writ of error.
Page 13 U. S. 23
MR. CHIEF JUSTICE MARSHALL, after stating the facts of the case,
delivered the opinion of the Court as follows:
The first error assigned is that the entry and survey of the
plaintiff in error being prior to the claim made by Ash before the
court of commissioners, gave him a legal right to the land so
entered and surveyed, not to be affected by the subsequent claim of
The words of the act of assembly are
"That all those who, before the said first day of January, 1778,
had marked out or chosen for themselves any waste or unappropriated
lands and built any house or hut or made other improvements thereon
shall also be entitled, on the like terms, to any quantity of land,
to include such improvement, not exceeding 1,000 acres, and to
which no other person hath any legal right or claim."
The Court is clearly of opinion that the words of the law refer
to the time when the improvement was made and to the time of the
passage of the act, not to the time when the claim, founded on that
improvement, was made to the court of commissioners. If the land,
when improved, was waste and unappropriated, if, at the passage of
the act, no other person had "any legal right or claim" to the land
so improved, such right could not be acquired until that of the
improver should be lost.
The second error is that the entry made by Terrell and Hawkins
with the surveyor has no reference to the
Page 13 U. S. 24
preemption certificate of Ash, and is therefore not a good and
valid entry of Ash's preemption right.
Terrell and Hawkins were assignees of Ash, and this ought to
have been expressed in the entry. Those words are omitted. In
consequence of their omission, it does not appear whose improvement
is to be included.
Upon this point the Court has felt a good deal of difficulty. If
the entry with the surveyor could be connected with the certificate
of the commissioners, this difficulty would be entirely removed.
But the Court is not satisfied that, according to the course of
decisions in Kentucky, such reference is allowable.
The Court, however, is rather inclined to sustain the location,
because its terms are such as to suggest to any subsequent locator
the nature of the omission which had been made.
Terrell and Hawkins enter 1,000 acres of land, "to include his
improvement." It was then a warrant founded on an improvement, and
that improvement was made not by them, but by a single person. Of
that single person Terrell and Hawkins were, of course, the
assignees. The place was described with such certainty as would
have been sufficient had the assignment been stated. On coming to
the place, Ash's improvement would have been found. The mistake
therefore does not mislead subsequent locators. It does not point
to a different place. They are as well informed as they would have
been by the insertion of the omitted words. The entry, too,
contains a reference to the warrant which the law directed to be
lodged with the surveyor, and to remain there until it should be
returned with the plat and certificate of survey to the land
3. It is also objected that some of the defendants in error do
not show a complete legal title under Terrell and Hawkins, for
which reason they have not entitled themselves to a conveyance from
Charles Simms, and that one of them, John Meiggs, has obtained a
decree for 140 acres of land, although in the bill he claimed only
Page 13 U. S. 25
Regularly the claimants who have only an equitable title ought
to make those whose title they assert, as well as the person from
whom they claim a conveyance, parties to the suit. For omitting to
do so, an original bill might be dismissed. But this is a bill to
enjoin a judgment at law rendered for the defendant in equity
against the plaintiffs. The bill must be brought in the court of
the United States, the judgment having been rendered in that court.
Its limited jurisdiction might possibly create some doubts of the
propriety of making citizens of the same state with the plaintiff
parties defendants. In such a case, the court may dispense with
parties who would otherwise be required and decree as between those
before the court, since its decree cannot affect those who are not
parties to the suit.
It is certainly a correct principle that the court cannot decree
to any plaintiff, whatever he may prove, more than he claims in his
bill. Nothing further is in issue between the parties. It is not
necessary to inquire whether anything appears in this cause which
can prevent the plaintiff from availing himself of this principle,
because the decree will be opened on another point, in consequence
of which this objection will probably be removed.
4. The fourth error is that John Ash having two improvements, it
is uncertain which he claimed before the commissioners and his
entry is on this account void, or if not so then his claim was for
the improvement made by himself, and not for that won from
It is admitted that if the terms of the entry are such as to
leave Ash at liberty to select either improvement, it is void, and
that if the terms of the entry confine him to either, he must abide
by his original election.
Upon considering the testimony on this point, the Court is of
opinion that the entry may be construed to refer to one improvement
in exclusion of the other, but that the improvement referred to is
the one first made by himself.
Let the several members of this description be examined.
Page 13 U. S. 26
John Ash, Sr., claimed 1,000 acres of land, &c., "on account
of marking and improving the same in the year 1776."
They were both marked and improved in the year 1776, the one by
Ash himself, the other by McCollom. The description proceeds,
"lying on the waters of the Town Fork of Salt River, about two
miles nearly east from Joseph Cox's land."
Both improvements are on the same watercourse, but that made by
Ash is nearer the distance and the course from Joseph Cox's land
mentioned in the certificate than that made by McCollom.
If, then, it be not absolutely uncertain to which improvement
reference is made in the certificate, this Court is of opinion that
the improvement made by Ash himself is designated.
Is there any testimony in the cause which can control the
meaning of the terms of the certificate when viewed independent of
There is evidence that the improvement at McCollom's Spring was
generally known in the neighborhood. But there is no reason to
believe that the improvement originally made by Ash himself was not
also known, nor is there any reason to believe that he had
abandoned it. On the contrary, he added to it by planting peach
stones after having won that made by McCollom.
It is also in proof that at the court of commissioners in April,
1780, in conversation with Thomas Polk, whom he then designed to
call on to prove his improvement, he said that he intended to
settle at McCollom's Spring.
Supposing this to amount to a declaration of his intent to found
his claim to a preemption on the improvement commenced by McCollom
and completed by himself, that intent not appearing in the
certificate and entry, could not control those documents. But the
Court is not of opinion that the conversation will warrant this
Page 13 U. S. 27
inference. The whole case shows that Ash retained his claim to
both improvements and designed to include both in his preemption.
They are both included in his survey. His declaration therefore
that he meant to settle at McCollom's Spring, and the subsequent
building of a cabin at that spring, no more proves which
improvement was the foundation of his title than if he had declared
a design to settle at any other place on the same tract of land and
had carried that intention afterwards into execution by building at
This Court is of opinion that there is error in so much of the
decree of the circuit court as directs the survey of Ash's
preemption to be made on the improvement commenced by McCollom,
which is at black A in the plat to which the decree refers, and
that the said preemption right ought to be to be surveyed on the
improvement originally made by Ash himself, which is at figure 2 in
the said plat. The decree therefore must be
Reversed and the cause remanded to the circuit court with
directions to conform their decree to the opinion given by this
The decree of this Court is as follows:
This cause came on to be heard on the transcript of the record
from the circuit court and was argued by counsel, on consideration
whereof the Court is of opinion that there is error in so much of
the interlocutory and final decrees of the said court as directs
Charles Simms to convey to the plaintiffs in that court the land
included in his patent and in the survey directed to be made by
that court, of the claim of the said plaintiffs, which survey was
ordered to be made in a square form, including the improvement at
McCollom's Spring which is designated in the plat by the black
letter A in the center, and that the said decrees ought to be
reversed and annulled and the cause remanded to the circuit court
with directions to cause the said preemption right of the said Ash
to be surveyed in a square form with the lines to the cardinal
points, and including the improvement originally made by the said
John Ash, Sr., which is designated in the plat filed in the said
cause by figure 2 in the center, and with further directions
Page 13 U. S. 28
to order the said Charles Simms to convey to the plaintiffs in
the circuit court respectively the land included in his patent and
lying within their several claims as made in their bill and as
sustained by the evidence in the cause. All which is ordered and