Wilson V. Mason. * 71 propriate the land, by proceeding regularly according to law. Mason, then, not having taken the steps required by the act of assembly, had no title at law; and having illegally made his survey, with a full knowledge of all the circumstances, and after having been warned of his error, has certainly no right in equity. Before he obtained a grant, Wilson, by pursuing the steps of the law, acquired a better right, and was thereby entitled to bring his caveat, and obtain a judgment in his favour. *Daveiss, on the same side. Notice cannot alter the law, except where the law requires notice. Where a statute requires notice and prescribes the mode, notice in another mode is not sufficient. 4 Term Rep. 368. King v. Newcomb. Amb. 444, 445. This is a case in which Wilson and Mason are both contending de damno evitando. The jury have found that by a law passed by the assembly of Kentucky, in 1792, all further entries of land with the surveyors are prohibited, and that ever since no land could be appropriated by virtue of land warrants. Consequently, the principle applies which is laid down by Lord Kaims, in his Principles of Equity, p. 26, 27. 162, 163. 199. “that it is a universal law of nature that it is lawful for one, eertans de damno evitando, to take advantage of another's error." A warrant is a transitory chattel until it has been located according to law. The entry is the appropriation of a particular tract of land, and the fixing of the warrant to that tract. The survey is of no effect, unless it be a survey of the tract so appropriated. In support of these positions he cited a manuscript report of land cases decided in the courts of Kentucky, p. 2, 3. Swearingen v. —— , p. 35. Dougherty v. Crow, 61, 62, 63. Isaacs v. Willis, 268. Owen v. Wilson, 77, 78, 79. Kite v. Stevenson, 182, 183. Consella v. Briscoe, 199. Swearingen v. Same, 197. Miller's Heirs v. Fox, 200. Smith v. Bradford, 206, 207. Fry v. Essery, and other cases in pages 211, 212. 214. 222. 232. 236. 268. 302, 303. 337, 338. 343. 353, 354. It will probably be contended by the defendant, that the intention of the assembly in requiring an entry, was to give notice to subsequent purchasers; and that Lee. In the 10th fact, found by the jury for the plaintiff, it is stated, the survey of 8,400 acres was made on the entry of the 17th of October, and that the survey of 8,300 acres was made on the entry of 29th of April. This must prevent the defendant from arguing that the latter survey was made on the entry of October, as well as from pretending that the entry of October applies to the entry of 8,300 acres made in April. In order to prove that all lands, not entered for in a regular manner, were to be considered as waste and unappropriated, he cited the case of Jones v. Williams, 1 Wash. 231. in which the court call lands waste and unappropriated, although they had been settled and occupied for years. Mason, for defendant in error. 1st. The entry of Mason, upon which his survey Wilson V. Mason. * 72 Wilson V. Mason. * 73 of 8,300 acres was made, is sufficiently certain, and the survey is in conformity to the entry. 2d. Admitting that the entry was vague, and not corresponding with the survey, yet Mason having paid for the land, and surveyed it, quoad the commonwealth, he was a bona fide purchaser, for a valuable consideration, and entitled to the land, provided no step had been taken *by any other person to acquire title to this land, previous to Mason's survey. 3d. Mason having appropriated this land by a survey actually made, returned to the surveyor's office, and recorded, the land ceased to be waste and unappropriated land: and Wilson having a perfect knowledge of these facts before and at the time he made his entry, was and is, (if he could acquire title at all,) in the character of a second purchaser with notice of a prior sale of the same land, and therefore was a fraudulent purchaser. 4th. The plaintiff in error is not, under the provisions of the law, entitled to a caveat in this case, because the better right, which the law meant to protect, was a right existing before or at the time the survey to be caveated was made. 1st. The entry of 8,300 acres is sufficiently certain, by its reference to the entry of 8,400 acres. The surveys of both entries are upon the identical tracts originally intended to be located. The first description of them in April, 1780, was inaccurate on account of the mistake in the names of places. The particular forks and branches had at that time scarcely acquired any names at all. The facts stated in this case do not admit that the names of the places were known before the beginning of the year 1780, which is the very time when the entries were made. It does not appear that the place now called the mouth of west fork was known by that name before Mason made his entries. It may be a name since acquired, or given by the surveyor or his deputies, who are the persons that generally give names to places in new countries. So soon as the fall of the same year Mason found that the description was not sufficiently accurate, and made an explanatory entry declaring what place he meant by the mouth of the west fork, and stating it to be the forks of Panther creek where it mouths into Green river. A mistake of that Wilson V. * 74 kind was by no means improbable, in the then wild and uninhabited state of the country on and about Green Mason. river, when it was dangerous, on account of the Indians, to attempt to set a compass. That such mistakes were general is evident from the names of places which were given. Thus the west fork is in fact a north-east fork; *what is called the east side of Panther creek is truly the south-west side. The entry of April was, in substance, the location of the tract surveyed; and the memorandum of Mason in October, was only fixing with more accuracy what was before in some degree vague. If this was the fact, then the entry of October was not a relocation of the warrant; it was never removed, but was always fixed to one and the same spot of earth. If, then, the entry of October is nothing more than it purports to be, viz. an explanation of the name of a place which was before uncertain, this same act of explana tion which rendered certain the location of warrant No. 1. must of necessity also render certain the location of No. 2. which depends, for its beginning, upon the location of No. 1. Id certum est quod certum reddi potest. The two locations are dependent upon, and connected with, each other; and the explanation of the first must also explain the second. It is evident that it was Mason's intention that the two tracts should lie alongside of each other, and the rendering certain the first, upon which the second was dependent, could never be considered as withdrawing the one from the other, and placing them many miles asunder. If it was Mason's intention in October to make a new location, why did he not avow it? No person had applied to appropriate the land he wanted. No one had interfered, or was about interfering, to take up that tract. There was nothing to prevent him from expressly withdrawing the entry of April, and making an entire new location. But his object was not to remove the location which he had actually made, but only more fully to explain the ideas which he had at first intended to express, but which, on account of the inaccurate knowledge of the names of places, and of the real geography of the country, he had failed to do. Taking, then, the entry of October as an explanation only, it applies as well to fix the true location of warrant No. 2. as of No. 1.; Wilson V. Mason. * 75 and the survey of No. 2. is as correspondent to its en try as that of No. 1. is to its entry. Nothing can more clearly prove Mason's intention to be to explain, and not to remove his entries of April, 1780, than his omitting to say any thing respecting his former entry of 8,300 acres, at the time he was explaining the entry of 8,400. Because, having no idea that his act *would be construed to be any thing more than an explanation, it must apply as well to the former as to the latter. But if his intention had been to remove the location of warrant No. 1. he would either have expressly removed No. 2. at the same time, or else would not have ordered the survey of No. 2. to be made contiguous to that of No. 1. He might as easily have explained No. 2. as No. 1. Words are but the representatives, and not always the true representatives, of ideas. They do not always express, nor are they the uncontrollable evidence of the ideas of the person using them. They may be explained by the tone of the voice, by the emphasis, by the gestures, or by the actions, of the person speaking. To determine at a subsequent period of time, the nature of the act from the words used, and not to suffer the words to be explained by other proof of the nature of the act, is not a fair mode of seeking for truth. The question is, what particular spot did Mason mean to locate by his entry of April? He has himself answered the question by his explanation in October. The only doubt can be whether he spoke the truth. He certainly had no motive for deception. There were, then, no contending claims. No other person had attempted to locate the land which he wished to appropriate. He had no reason to wish to preserve the priority of his entries, because the book of entries was open before him, and he could see that no person had entered for the same land; a new entry, therefore, in October, would have been as good as his old entry in April. The act of assembly says that the warrant "shall be good and valid until executed by actual survey." The survey, then, and not the entry, is the execution of the warrant. The warrant merges in the survey. This shows that the legislature attached greater importance to the survey than to the entry. If, then, the land surveyed is the same land which |