The rule which prevails in Kentucky and Ohio as to land titles
is that at law the patent is the foundation of title, and neither
party can bring his entry before the court. But a junior patentee
claiming under an elder entry may in chancery support his equitable
title.
A description which will identify the lands is all that is
necessary to the validity of a grant, but the law requires that an
entry should be, made with such certainty that subsequent
purchasers may be enabled to locate the adjacent residuum.
An entry for one thousand acres of land in Ohio on Deer
Creek,
"beginning where the upper line of Ralph Morgan's entry crosses
the creek, running with Morgan's line on each side of the creek
four hundred poles, thence up the creek four hundred poles in a
direct line, thence from each side of the given line with the upper
line at right angles with the side lines for quantity,
held to be a valid entry."
Distinction between amending and withdrawing an entry.
Page 17 U. S. 489
The bill in equity filed in this cause by the appellant,
McArthur, stated, that George Mathews, on 19 September, 1799, made
the following entry with the surveyor of the Virginia army
lands:
"No. 3717, 1799, September 19. George Mathews, assignee, enters
1,000 acres of land, on part of a military warrant, No. 4795, on
Deer Creek, beginning where the upper line of Ralph Morgan's entry,
No. 3665, crosses the creek, running with Morgan's line, on each
side of the creek, 200 poles; thence up the creek 400 poles, on a
direct line, thence from each side of the given line, with the
upper line, at right angles with the side lines, for quantity."
That afterwards the entry of Ralph Morgan was withdrawn, and
that in consequence George Mathews made the following entry:
"No. 3717, 1801, October 26. George Mathews, assignee, enters
1000 acres of land on part of a military warrant, No. 4795, on Deer
Creek, beginning at two elms on the southwest bank of the creek,
upper corner to Henry Mossies' survey, No. 3925, running south 45�
west, 120 poles, north 65� west, 172 poles, north 17� west, 320
poles, north 76� east, 485 poles, thence south 1� west, 292 poles,
thence to the beginning."
The bill charged, that the last entry was not intended as a new
one, but only as an amendment or explanation of the first. This
last entry was surveyed 7
Page 17 U. S. 490
October, 1807, and upon an assignment to the complainant, the
land embraced in the survey was patented to the plaintiff July,
1806.
The title of Browder, the respondent, was stated in the bill as
follows: that on the 20th of July 1798, Nathaniel Randolph made the
following entry:
"No. 3310. July 20, 1798. Nathaniel Randolph assignee, enters
300 acres of land on three military-warrants, Nos. 4165, 4250 and
4664, on the lower side of Deer Creek, beginning at a walnut and
two elms, cornered five poles from the bank of the creek, running
south 61� west, 200 poles to two white oaks, and two hickories,
thence north 7� west, 234 poles, thence north 61� east, 200 poles,
thence to the beginning."
That the last entry was surveyed for Randolph and the oldest
patent obtained by him, which he conveyed to Browder, who has
recovered upon an ejectment.
By the answer and exhibits it appeared, that Randolph's survey
was made 1 August, 1798; that a patent was granted to Randolph 29
September, 1800, who conveyed to the respondent. The respondent,
Browder, having brought an action of ejectment, recovered the
possession of the land in question; and the appellant McArthur
filed this bill in equity praying for an injunction; a conveyance
of so much of the land claimed by the respondent as interfered with
his claim, and for general relief. The bill was dismissed by the
circuit court, and the cause brought by appeal to this Court.
Page 17 U. S. 491
MR. CHIEF JUSTICE MARSHALL, delivered the opinion of the
Court.
In this case the appellee claims under the elder grant, founded
on the elder entry. Consequently if his entry be valid, the bill of
the appellant cannot be sustained. But the entry is so defective in
description that it was necessarily abandoned, and the appellee
relies on his patent, anterior to the emanation of which the
appellant contends that the land was appropriated by this entry.
The validity of this entry also is denied. But before we examine
the objections made to it, we must consider those which have been
urged against the jurisdiction of this Court as a court of
equity.
The rule which prevails both in Kentucky and Ohio is that at law
the patent is the foundation of title, and that neither party can
bring his entry before the court. In consequence of this rule, it
has been also well settled that the junior patentee claiming under
an elder entry may, in chancery, support his equitable title and
obtain a decree for a conveyance of so much of the land as, under
his entry, he may be entitled to. But the general principle is
supposed to be inapplicable to this case, because the words of the
entry are introduced into the grant, and if they were too vague to
appropriate the land when used in the entry, they must be too vague
to appropriate it when used in the grant, which is a
Page 17 U. S. 492
question triable at law and which was tried in the ejectment
brought by the appellee for the land.
Were the fact precisely as stated, it could not support the
argument which is founded on it. When lands are granted, a
description which will identify them is all that is necessary to
the validity of the grant. But identity is not all that is
necessary to the validity of an entry. The law requires that
locations should be made with such certainty, that subsequent
purchasers may be enabled to locate the adjacent residuum. All
grants are founded on surveys; they recite the surveys, and all
that is required in an ejectment is, to prove that the land claimed
is that which was surveyed. But more is required in a contest
respecting an entry; nothing is more common than for courts to
declare en entry void for uncertainty notwithstanding the clearest
proof that the land claimed and that located are the same.
There is then nothing in the resemblance between the words of
the grant and of the entry, to distinguish this from other cases,
in which the party claiming under the first good entry comes into
chancery to obtain a conveyance of lands held under a senior
patent. We proceed, then, to examine the entry under which the
appellant claims. That entry is made for 1,000 acres of land on
Deer Creek,
"beginning where the upper line of Ralph Morgan's entry crosses
the creek, running with Morgan's line on each side of the creek,
200 poles, thence up the creek 400 poles, on a direct line, thence
from each side of the
Page 17 U. S. 493
given line, with the upper line at right angles with the side
lines, for quantity."
That entries which contain such descriptive words as clearly to
designate the place where the land lies shall, with respect to
their more particular locative calls, be supported, if they can, on
fair construction, be supported, is a principle which pervades the
whole of that curious and intricate fabric, which has been erected
by the decisions on land titles in Kentucky, and has been taken as
a model for those in the military district of Ohio. If a subsequent
locator, brought to the spot where the lands lie, with the location
in his hand, might, by the application of the rules which the
courts have established, know how to place the entry so as to
enable himself to locate the adjacent residuum, the entry must be
sustained.
In this case, it is admitted that the beginning is described
with sufficient certainty. The place where the upper line of Ralph
Morgan's entry crosses Deer Creek is ascertained. From that
beginning, the entry calls to run "with Ralph Morgan's line, on
each side of the creek, 200 poles." It is said to be entirely
uncertain whether this line is to be 200 poles on each side of the
creek, so as to amount to 400 poles, or to be only a line of 200
poles altogether. Did this ambiguity really exist in the words
themselves, it is entirely removed by the other parts of the
location. The entry is made for 1,000 acres of land, and cannot on
any construction be made to exceed 500 acres, unless the baseline
be 400 poles. We have then a given line of 400 poles. The entry
then proceeds,
Page 17 U. S. 494
"thence up the creek 400 poles on a direct line." The plain
meaning of these words is that the land lies up the creek, so that
a direct line of 400 poles will reach its upper boundary. If the
location stopped here, adding only "for quantity," the decisions of
Kentucky would establish it as a good entry for a square, formed on
the upper side of the baseline of 400 poles, which would contain
1000 acres of land. But the entry proceeds, "thence from each side
of the given line, with the upper line at right angles with the
side lines, for quantity." This part of the description has been
said to produce uncertainty, because two lines are given, and a
subsequent locator could not tell to which reference was made.
If it would make any difference whether the baseline or the line
up the creek was taken as the given line, this might produce some
difficulty, but if the entry must cover precisely the same ground
whether the one or the other be taken as the given line, it can
make none. Let the baseline be considered as the given line. It is
plain that the words "from each side" must mean from each end,
because the land is to lie up the creek, whereas if you proceed
from each side, it would lie partly down the creek. The line, too,
which is to give the quantity with the side lines is the upper
line, and that is removed from the baseline the distance necessary
to include the quantity of land required. As this quantity is to be
enclosed from the whole entry taken together, within lines which
form a square, the entry must be understood to require, that the
side lines should be drawn from the ends of the baseline,
Page 17 U. S. 495
and the inaccuracy of the expression could not mislead.
But the entry is understood to refer as the given line to that
which is last mentioned -- that is, to the line of 400 poles, which
is perpendicular to the base. You are then carried up the creek 400
poles in a direct line from the baseline. From each side of this
line, you are carried "with the upper line at right angles with the
side lines," until you get 1,000 acres. This construction gives
full effect to every word of the entry, and gives a square which
will contain 1,000 acres. It is, we think, the natural
construction. The entry would be so understood by every subsequent
locator. On any construction, then, which can be given to the
words, the entry must not only have the same form, but must cover
precisely the same land.
If, then, the original entry had never been amended, there could
be no doubt of the right of the party claiming under it. This leads
to the inquiry, whether the amendment affects this right? The
distinction between amending and withdrawing an entry is well
established, and completely understood. An amended entry retains
its original character so far as it is unchanged by the amendment.
So far as it is changed, it is a new entry. The survey in this case
is understood to conform precisely to the amended entry, and it
contains a part of the land comprehended in the original entry. So
far as respects the land within the appellee's patent, which is
comprehended by the original entry, the amended entry, and the
survey, we think, the
Page 17 U. S. 496
appellant was entitled to a decree, and consequently, the
circuit court erred in dismissing his bill.
The decree is to be
Reversed and the cause remanded to the circuit court with
directions to enter a decree conforming to this opinion.
DECREE. This cause came on to be heard on the transcript of the
record of the Court of the United States for the Seventh Circuit
and District of Ohio, and was argued by counsel: on consideration
whereof, this Court is of opinion, that the plaintiff in the
circuit court had a good title in equity to so much of the land
contained in the defendant's patent as is comprehended in the
original entry made by George Mathews in September 1799, and also
in his amended entry, and in his survey, and that the decree of the
said circuit court dismissing the bill is erroneous and ought to be
reversed, and it is accordingly reversed, and this Court doth
further direct and order that the said cause be remanded to the
said circuit court with directions to enter a decree directing the
defendant to convey to the plaintiff so much of the land contained
in his patent as is comprehended in the original entry and also in
the amended entry and survey on which the grant of the plaintiff
was founded.
