Kerr v. Watts,
19 U.S. 550 (1821)

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U.S. Supreme Court

Kerr v. Watts, 19 U.S. 6 Wheat. 550 550 (1821)

Kerr v. Watts

19 U.S. (6 Wheat.) 550


The decision of this Court in Massie v. Watts, 6 Cranch 148, revised and confirmed.

Who are necessary parties in equity.

No one need be made a party complainant in whom there exists no interest, and no one party defendant from whom nothing is demanded.

The rule applied in equity to the relief of bona fide purchasers without notice is not applicable to the case of purchasers of military land warrants under the laws of Virginia.

Such purchasers are considered as affected with notice by the record of the entry and also of the survey, and subsequent purchasers are considered as acquiring the interest of the person making the entry, so that purchasers under conflicting entries are considered as purchasing under distinct rights, in which case the rule, as to innocent purchasers does not apply.

The principle that only parties or privies or purchasers pendente lite are bound by a decree in equity, how applied to this case.

The surveys actually made on the military land warrants of Virginia have not the force of judicial acts or of acts done by the deputations of officers as general agents of the continental officers.

Ferdinando O'Neal was owner of a Virginia military warrant for 4,000 acres of land, dated 17 July, 1783, and employed Nathaniel Massie, a deputy surveyor, to locate it and to survey and return the plats.

John Watts purchased the right of O'Neal, and on 7 January, 1801, paid Massie 50 pounds in full satisfaction for locating and surveying the warrant.

On 3 August, 1787, Massie made an entry on part of O'Neal's warrant for 1,000 acres. On

Page 19 U. S. 551

the same day, an entry had been made for 1,000 acres for Robert Powell, which was purchased by Massie.

On 27 January, 1795, Massie made an entry in his own name for 2,366 acres, and the bill, filed in the court below by the respondent, Watts, against the appellants, Kerr and others, charges that on 26 April, 1796, Massie fraudulently made a survey for O'Neal, for 530 acres, purporting to be made upon his said entry of 1,000 acres, but in fact on different land, having fraudulently appropriated to himself the land covered by O'Neal's entry by surveys made on Powell's and his own entries, having purchased Powell's warrant and entry before the surveys were made.

The bill further states that Massie had obtained grants upon his survey.

Watts commenced a suit in chancery against Massie in the state court of Kentucky, claiming a conveyance of the legal title, and proceeded to a final hearing upon the merits in the Circuit Court of Kentucky, to which it had been removed, which last court, in the November term, 1807, made an interlocutory decree in favor of Watts and directed the proper surveyor to lay off the several entries in the manner pointed out in that decree and to report to the court in order to a final decree in the premises.

The cause was finally decided by a decree directing Massie to convey the 1,000 acres to Watts according to certain metes and bounds reported, and to deliver possession, &c., and upon performance of

Page 19 U. S. 552

the decree by Massie, Watts was directed to transfer to him 1,000 acres of O'Neal's warrant.

Massie appealed to this Court, where the decree of the circuit court was affirmed at February term, 1810.

Massie refused to convey or deliver possession when demanded, and in the meantime part of the property recovered had been laid out into lots of the town of Chilicothe, and the bill charges the appellants and others, who were made defendants in the present suit, with having in possession, respectively, part of the complainant's property and claiming to hold the same by titles derived under Massie.

The record of the proceedings in Kentucky and in the Supreme Court were referred to and made part of the bill in this case.

The entries before mentioned are as follows:

"No. 503. Captain Robert Powell enters 1,000 acres of land, &c., beginning at the upper corner on the Scioto of Major Thomas Massie's entry, No. 480, running up the river 520 poles, when reduced to a straight line, thence from the beginning with Massie's line, so far that a line parallel to the general course of the river shall include the quantity."

"No. 509. Captain Ferdinand O'Neal enters 1,000 acres, &c., beginning at the upper corner on the Scioto of Robert Powell's entry, 503, running up the river 500 poles, when reduced to a straight line, and from the beginning with Powell's line, so far that a line parallel with the general course of the river will include the quantity. "

Page 19 U. S. 553

"No. 2462. Nathaniel Massie enters 2,366 acres, &c., on the bank of Scioto, corner to Robert Powell's survey, No. 503, thence with his line south 43 east 293 poles; south 80 east to the upper back corner of Thomas Massie's survey, No. 480, thence with his line south 10 west, to Paint Creek, thence up the creek to the corner of Thomas Lawes' survey, thence with his line, and from the beginning up the Scioto to the lower corner of Daniel Stull's survey, thence with his line so far that a line south 10 west, will include the quantity."

But these entries depended on one which preceded them on the entry book, made by Thomas Massie, as follows:

"No. 480. 1787, August 3. Thomas Massie enters 1,400 acres, &c., beginning at the junction of Paint Creek with the Scioto, running up the Scioto 520 poles when reduced to a straight line, thence off at right angles, with the general course of the river so far that a line parallel thereto will include the quantity."

This Court, in the case referred to, decided, that Thomas Massie's survey ought to commence at the mouth of Paint Creek and that the upper corner on the river should be placed at the termination of a right line at the distance of 520 poles, and the survey extended out at right angles with the general course of a right line supposed from the beginning to the upper corner, and that from the upper corner of Thomas Massie's survey, a point on the river, at the distance of 520 poles on a right line should be

Page 19 U. S. 554

ascertained for the upper corner of Powell's, and that the real course of a right line from Thomas Massie's corner to Powell's upper corner should be considered as a base from which Powell's survey should be extended by lines at right angles therewith, except only so far as the lower line might interfere with Thomas Massie's property.

The survey of O'Neal to depend upon the same principles in relation to the survey of Powell.

The object of the present suit was to carry into execution against the defendants, who have acquired Massie's title, the decree against him in Kentucky, affirmed in this Court.

The court below, by its decree, gave relief against each for the specific property claimed by the answer of each, construing the entries according to the principles of the former decision, except in varying the complainant's survey, by a decision that a piece of land called an island in the river, was part of the main shore when the entries were made, and included as a part of the bank.

The defendants all submitted to the decree, except Kerr, Doolittle, Joseph Kirkpatrick, Sr. Joseph Kirkpatrick, Jr., and the heirs of James Johnston, who appealed to this Court.

Page 19 U. S. 557

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