An error in description is not fatal in an entry if it does not
mislead a subsequent locator. The following entry,
"H.M. enters one thousand six hundred and eighty-seven acres of
land on a Treasury warrant, No. 6168, adjoining Chapman Aston on
the west side, and Israel Christian on the north, beginning at
Christian's northwest corner, running thence west two hundred
poles; thence north parallel with Aston's line until an east course
to Aston's line will include the quantity,"
was held valid although no such entry as that referred to could
be found in the name of Aston, but the particular description
clearly pointed out an entry in the name of Chapman
Austin
as the one intended, and this, together with Christian's entry,
satisfied the
calls of H.M.'s entry.
It is a general rule that when all the calls of an entry cannot
be complied with because some are vague or repugnant, the latter
may be rejected or controlled by other material
calls
which are consistent and certain. Course and distance yield to
known visible and definite objects, but they do not yield unless to
calls more material and equally certain. Chapman Austin's
entry
calling to lie "on the dividing ridge between
Hinkston's Fork and the south fork of Licking, beginning two miles
north of Harrod's Lick at a large buffalo road, and running about
north for quantity," and there being no buffalo road
two miles
north of Harrod's Lick (a place of general notoriety), it was
determined that a call for a
large buffalo road might be
rejected and the entry supported by the definite call for course
and distance.
It is a settled rule that where no other figure is called for in
an entry, it is to be surveyed in a square coincident with the
cardinal points and large enough to contain that the point of
beginning is deemed to be the center of the baseline of such
square. Chapman Austin's entry calling to run about a north course
for quantity, the word "about" is to be rejected, and the land is
to run a due north course, having on each side of a due north line,
drawn through the center of the base, an equal moiety.
The act of Kentucky of 1797, taken in connection with preceding
acts declaring that entries for land shall become void if not
surveyed before the 1st day of October, 1798, with a proviso
allowing to infants and
femes covert three years after
their several disabilities are removed to complete surveys on their
entries, it was
held that if any one or more of the joint
owners be under the disabilities of infancy or coverture, it brings
the entry within the saving of the proviso as to all the other
owners. Distinction between this statute and a statute of
limitations of personal actions.
A
call for a
spring branch generally or for a
spring branch to
include a marked tree at the head of such
spring is not a sufficiently specific
locative call, and
where further certainty is attempted to be given by a
call
for course and distance, and the course is not exact, and the
distance called for is a mile and a half from the place where the
object is to be found, the entry is void for uncertainty.
Page 15 U. S. 317
MR. JUSTICE STORY delivered the opinion of the Court.
This is a bill in equity brought by the appellees, who are the
heirs at law and devisees of Henry Miller, deceased, to be relieved
against the claims of the appellants under prior patents to a tract
of land to which the appellees assert a prior equitable title under
a prior entry by their ancestor.
Page 15 U. S. 318
On 11 December, 1782, the said Henry Miller made the following
entry:
"Henry Miller enters 1,687 acres of land on a Treasury Warrant,
No. 6,168, adjoining Chapman Aston on the west side, and Israel
Christian on the north, beginning at Christian's northwest corner,
running thence west 200 poles, thence north parallel with Aston's
line until an east course to Aston's line will include the
quantity."
Henry Miller died in 1796, and in 1804 this entry was surveyed,
and after that time a patent issued thereupon in due form of law.
At the time of the death of Miller, and also of the survey of the
entry, several of the plaintiffs were under age, and some of them
at the commencement of the suit continued to be under age.
There was not, on 11 December, 1782, any entry upon record in
the entry taker's books in the name of Chapman Aston. But there
were several in the name of Chapman Austin, and several in the name
of Isaac Christian. One in the name of Chapman Austin is dated 26
June, 1780, for 4,000 acres of land lying on Red River, and another
in the name of Israel Christian, dated 5 December, 1782, for 2,000
acres of land lying on the same river, but there is no proof in the
cause that these entries are in the neighborhood of each other. The
entries relied on by the complainants as those referred to in
Miller's entry are as follows:
"On 26 June, 1780, Chapman Austin enters 4,000 acres on the
dividing ridge between Hinkston's Fork and the south fork of
Licking, beginning two miles north of Harrod's Lick at a large
buffalo road and
Page 15 U. S. 319
running about a north course for quantity. . . . On 29 November,
1782, Israel Christian, assignee of Archibald Thompson, enters 200
acres of land upon a military warrant, No. 193, adjoining an entry
of Chapman Austin, at his southwest corner on the dividing ridge
between Hinkston's and Stoner's Fork, two miles north of Harrod's
Lick, running thence west 200 poles, thence north until an east
course to strike Austin's line will include the quantity."
The appellants having the elder grant, the first question
arising in the cause is as to the validity of the entry of Miller.
It is, in the first place, contended that it is void because it
contains no sufficient description of the position of the land, and
no specific reference to any other definite entries to make it
certain. It is, in the next place, contended that it is void
because Chapman Austin's entry, on which it is dependent, is void
for uncertainty.
There is certainly a mistake in Miller's entry as to the name of
Aston, and the defect cannot be cured by considering Aston and
Austin as one name, for they are not of the same sound. But an
error in description is not fatal in an entry if it does not
mislead a subsequent locator. Upon searching the entry book, no
such name could be found as Chapman Aston, and if Miller's entry
had only called to adjoin Aston, there would have been great force
in the objection. But it calls also to adjoin Israel Christian's
entry on the north and to begin at his northwest corner. A
subsequent locator would therefore necessarily be led to examine
that entry. On such examination he
Page 15 U. S. 320
could not fail to observe that it calls to adjoin an entry of
Chapman Austin at his southwest corner, on the dividing ridge
between Hinkston's and Stoner's Fork, two miles north of Harrod's
Lick. This specific description would clearly point out the
particular entry to which it refers. It could be no other than the
entry of Chapman Austin for 4,000 acres, already stated, for that
calls for the same ridge, and to begin at the same distance from
Harrod's Lick. Two entries would thus be found adjoining each
other, which would, as to position and course, perfectly satisfy
the calls of Miller's entry. No other entries could be found which
would present the same coincidences. A subsequent locator could
not, therefore, doubt that these were the entries really referred
to in Miller's entry, and that Chapman Aston was a misnomer of
Chapman Austin. The entry, then, of Miller, contains in itself a
sufficient certainty of description if the entries to which it
refers are valid, for
id certum est quod certum reddi
potest.
As no objection is alleged against Christian's entry, all
consideration of it may at once be dismissed. The validity of the
entry of Chapman Austin remains to be examined. It calls to lie
"on the dividing ridge between Hinkston's Fork and the south
fork of licking, beginning two miles north of Harrod's Lick at a
large buffalo road and running about north for quantity."
It is conceded that Harrod's Lick was, at the time of the entry,
a place of general notoriety, and it is proved that there was no
buffalo road two miles north of that lick. The nearest buffalo
road
Page 15 U. S. 321
was, at its nearest approach, more than two miles from the same
lick, and crossed the ridge at more than three miles distance from
it, and a line drawn due north from the lick would not strike that
road until after it had crossed the ridge at about four miles
distance from the lick. The calls, then, in the entry cannot be
completely satisfied in the terms in which they are expressed. The
general descriptive call to lie on the dividing ridge, as well as
the call for distance, must be rejected if a buffalo road about
four miles north of the lick were to be deemed a sufficient
compliance with the call for a large buffalo road, for the whole
land would then lie not on but beyond the ridge. Such a
construction of the entry would be unreasonable.
Is, then, the entry void for repugnancy or uncertainty, or can
it be sustained by rejecting the call for a large buffalo road? It
is a general rule that when all the calls of an entry cannot be
complied with because some are vague or repugnant, the latter may
be rejected or controlled by other material calls which are
consistent and certain. On this account, course and distance yield
to known, visible, and definite objects. But course and distance do
not yield unless to calls more material and equally certain. The
locative calls in this entry are for a point two miles north of
Harrod's Lick and for a large buffalo road. If we reject the first
call, the entry is void for uncertainty, for there is no definite
starting point. If we reject the last call, the other is perfectly
certain. The general leaning of courts has been to support entries
if it could be done by any reasonable construction.
Page 15 U. S. 322
The law indeed declares that every entry should contain a
description of the land so certain that subsequent locators might
be able to ascertain it with precision and locate the adjoining
residuum. But that description is held to be sufficiently certain
which, by due diligence, inquiry, and search in the neighborhood
will enable a locator to find the land. A locator having this entry
in his hands would first proceed to Harrod's Lick, as a notorious
object which was to direct all his subsequent inquiries. Upon
measuring off the two miles north from the lick, he would arrive at
a point clearly described in the entry. He would find himself very
near the dividing ridge between Hinkston's Fork and the south fork
of Licking, upon which the land is unequivocally declared to lie.
But he could find no buffalo road in that direction until after he
had crossed the ridge, nor could he find any such road within any
reasonable distance in any other direction. Under such
circumstances, it is not easy to perceive how he could be misled.
Being arrived at a spot, to which he was directed by a definite
locative call, which he could not mistake, and by a general call
which is perfectly satisfied, he would scarcely be induced to
direct it in search of another call which was not to be found in
the neighborhood and which, without the first, would be uncertain
and indefinite. In the opinion of the Court, the call for a large
buffalo road may be rejected, and the entry of Chapman Austin be
supported by the other definite call for course and distance. In
this opinion we are the more confirmed by the admission of counsel
that the same
Page 15 U. S. 323
entry has been sustained in the state courts of Kentucky.
Supposing the entry of Chapman Austin to be good, the next
inquiry is whether it is rightly surveyed, for if it is, then
Christian's and Miller's entries are also rightly surveyed. It is
contended that as no base or figure is given by the entry, the land
cannot be laid off in any direction, and if so, neither the survey
made by order of the circuit court nor, indeed, any other survey,
can be good. But it is a settled rule which has been repeatedly
recognized by this Court that where no other figure is called for
in an entry, it is to be surveyed in a square coincident with the
cardinal points and large enough to contain the given quantity, and
that the point of beginning is to be deemed the center of the
baseline of such square. In the present case, a point two miles
distant from Harrod's Lick is to be taken as the center of the
baseline of a square, to contain the given quantity of land. The
entry calls to run about a north course for quantity, but,
according to the course of decisions in Kentucky, the word "about"
is to be rejected, and the land is to run a due north course,
having on each side of a due north line drawn through the center of
the base, an equal moiety. This is precisely the manner in which
the survey was directed to be executed by the court below.
Another objection to the title of the plaintiffs is that the
survey on Miller's entry was not executed and returned within the
time prescribed by law.
Page 15 U. S. 324
The act of 1797, taken in connection with preceding acts,
declares that entries for land in general shall become void if not
surveyed before the first day of October, 1798, with a proviso
allowing to infants and
femes covert three years after
their several disabilities are removed to complete surveys on their
entries. The ancestor of the plaintiffs died in 1796, and some of
them then were, and still continue to be, under the disability of
infancy. The present entry was not surveyed until 1804.
It is argued that the proviso does not save any entries except
where all the owners are under the disability of infancy or
coverture at the time when the general limitation takes effect. And
it is likened to the case decided by this Court where a joint
personal action was held not to be saved by the disability of one
of the plaintiffs from the operation of the statute of limitations.
Marsteller v.
McLean, 7 Cranch 156. It is admitted that there is
some analogy between the cases, but as they do not arise upon the
same statute, a decision in the one furnishes no absolute authority
to govern the other. There are also differences in the nature and
objects of these statutes which might well justify a different
construction. The statute of limitations is emphatically termed a
statute of repose; it is made for the purpose of quieting rights
and shutting out stale and fraudulent claims. It has therefore
always been construed strictly against the plaintiff, and no case
has been excepted from its operation unless within the strict
letter or manifest equity of some exception in the act itself. The
statutes of Kentucky allowing
Page 15 U. S. 325
further time to owners to survey their entries is made with a
different aspect. It is to save a forfeiture to the government, and
acts imposing forfeitures are always construed strictly as against
the government and liberally as to the other parties. It is
manifest that the act meant to protect the rights of infants and
femes covert from forfeiture until three years after the
disability should be removed. Yet if the argument at bar be
correct, their rights are completely gone in all cases where they
are not the sole and exclusive owners. Such a construction would
materially impair the apparent beneficial intention of the
legislature. If, on the other hand, they are authorized in such
cases to have their entries surveyed and returned, so as to protect
their own joint interest, no reason is perceived why such survey
may not be justly held to enure to the benefit of all the other
joint owners. The courts of Kentucky have already decided this
question, and held that if any one joint owner be under disability,
it brings the entry within the saving of the proviso as to all the
other owners.
Kennedy v. Bruice, 2 Bibb 371. This is a
decision upon a local law which forms a rule of property, and this
Court has always held in the highest respect decisions of state
courts on such subjects. We are satisfied it is a reasonable
interpretation of the statute, and upon principle or authority see
no ground for drawing it into doubt.
The title of the plaintiffs being established, it is next to be
compared with the titles of the respondents. It is conceded on all
sides that none of the titles of the latter are of superior dignity
to that of
Page 15 U. S. 326
the plaintiffs except the title claimed under an entry of Thomas
Swearingen on a military warrant. This entry is as follows:
"On 26 April, 1780, Thomas Swearingen enters 1,000 acres in
Kentucky by virtue of a military warrant for military services
performed by him last war on a spring branch about six miles a
northeastwardly course from Stoner's Spring, to include a tree,
marked 'A.B.C.S.T.' at the head of said spring."
Stoner's Spring is admitted to be a place of notoriety, but the
marked tree and spring branch, instead of being at the distance of
six miles, is found at the distance of four miles and a half and in
a course not northeasterly. The call for a spring branch generally,
or for a spring branch to include a marked tree at the head of the
spring, is not a sufficiently specific locative call. It requires
further certainty to point out its position, and this is attempted
to be given in the present entry by the call for course and
distance. The course is not exact, and the distance called for is a
mile and a half from the place where the object is to be found. It
is the opinion of this Court that it would be unreasonable to
require a subsequent locator to search for the object at so great a
distance from the point laid down in the entry, and the entry must
therefore be pronounced void for uncertainty.
MR. CHIEF JUSTICE MARSHALL.
In this case I dissent from the opinion which has been delivered
on one point -- the validity of Austin's entry. I am not satisfied
that the call for the buffalo road ought to be discarded as
immaterial. It appears to me to bear a
Page 15 U. S. 327
strong analogy to a call for a marked tree. It is an object of
notoriety, distinguishable from other objects, peculiar to itself,
and which would be looked for by subsequent locators. Finding a
buffalo road in the neighborhood, the judgment would be divided
between the call for that road and the call for course and
distance.
Understanding that this entry has been determined in Kentucky to
be sufficiently certain, I would have acquiesced in that decision
had it not also been stated that the question on its validity did
not come before the court. Under these circumstances, we should,
had the court though the entry invalid, have suspended our opinion
until the case could be inspected. This delay is rendered
unnecessary by the opinion that the location may be sustained.
Decree affirmed.