Wilson v. Mason. them to him, and represented his opinion of such variance; but on their being shown to the said Taylor, he directed said surveys to be returned as they were then made. "14. That the said Hord was fully informed of the forks of Panther creek, when he was making said defendant's surveys, and saw the same, and about the same time at which he made the defendant's said surveys, and ba fore he returned from doing the same. (Signed) DANIEL WEISIGER, Foreman.” "We of the jury do find the following facts for the defendant Mason: *1. That the entry made in the name of George Wilson, April [*53 9th, 1784, of 4û,926 acres, on the south side of Pan.her creek, claiming under which the said Wilson entered this caveat, although made in his name, was made for the benefit of Christopher Greenup and John Handley, as well as for his benefit, and that the said Greenup and Handley were, at the time of making the entry, and long since, partners with him in the same. "2. That John Handley, then a deputy-surveyor of the county, made the said entry of 40,926 acres, for himself and the other partners; and before he made the same, had obtained information of the surveys made for George Mason, on his entries of 8300, and 8400 acres, on the south side of Panther creek, from the surveys then in the office of the surveyor. "3. That the said George Wilson, Christopher Greenup and John Handley, had, before and at the time the said entry of 40,926 acres was made, notice of the place where, and the manner in which, the surveys had been made for George Mason, on his entries of 8300 acres, and 8400 acres, on the south side of Panther creek. "4. That John Handley, before the said entry of 40,926 acres was made, had notice that the land now in dispute in this caveat, had been included in Mason's survey, on his entry of 8300 acres. "5. That the surveys, made for the said Mason, on his entries of 8400, and 8300 acres, on the south side of Panther creek, were returned to the office of the surveyor of the county, in the course of the fall, 1783. (Signed) DANIEL WEISIGER, Foreman." The judgment of the district court of the United States for the district of Kentucky, at June term 1800, in the caveat of Wilson v. Mason, was, "That the defendant hath the better right to the land in controversy; it is, therefore, ordered, that the caveat be dismissed, and that the defendant recover against the plaintiff his costs in this behalf expended." *In the caveat of Mason v. Wilson, the judgment was, "That the [*54 plaintiff recover against the defendant so much of the land in controversy as is included within the survey of 8300 acres, made by George Mason, on his entry of 8300 acres, entered March (quære? April) the 29th 1780, and designated in the corrected plat returned in the said other caveat, by the letters, D. E. F. 8, and also his costs by him about his suit in this behalf expended." After these judgments were entered, Wilson, by his counsel, moved the court for a citation on a writ of error to the supreme court of the United States, to which Mason, by his counsel, objected, alleging that by the acts of assembly of Virginia, under which the plaintiff Wilson claimed, it is provided, that no appeal or writ of error shall be allowed on a judgment en Wilson v. Mason. tered on a caveat, and that, therefore, in this case, the plaintiff was precluded from claiming the benefit of a writ of error. But the court overruled this objection, and granted the citation; to which opinion, the defendant excepted. (a) (a) The following is the opinion of Judge INNES, who tried the cause in the district court; and which is alluded to in the subsequent arguments of counsel. After stating the facts of the case, he proceeds: The novelty of this case, the number of facts submitted and found by the jury, as well as the ingenious manner in which it was argued by the counsel of both plaintiff and defendant, have attracted my particular attention, and induced me to weigh the subject deliberately; the result of my deliberations will appear from the following opinion. The first question which presents itself in this cause is, whether Mason has surveyed 8300 acres of land, contrary to his entry made the 29th of April 1780. The alteration of Mason, on the 27th day of October 1780, to the entry of 8400 acres, dated the 29th day of April preceding, is considered as a withdrawing of, and a total abandonment of the first entry. The first entry calling to lie about four miles above the mouth of the west fork, the second, four miles from the mouth of the main creek. The survey, therefore, of the 8300 acres is made contrary to the entry, as it adjoins the track of 8400, which is made in conformity to the new entry. This decision, that the land in question is surveyed contrary to entry, brings me to the principal question in this cause; will Mason's survey for 8300 acres of land, made contrary to his entry, secure the land to him, against the claim of Wilson, founded on a special entry, subsequent to the recording of Mason's survey-Wilson having, before he made his entry, notice of the place where, and manner in which Mason had surveyed, and of the survey being recorded? The parties to this suit are both considered as purchasers of the commonwealth (Chancery Revision of the Laws, p. 95, 96, § 3); the surveyor of the county, as her ministerial agent; who is authorized to receive warrants for land, make entries, survey the same, receive the surveys, when made, record the plat and certificate, within three months after it is returned to his office, provided, upon examination, he finds it truly made, and legally proportioned as to length and breadth. I will here take notice of two arguments urged by the plaintiff's counsel, viz., that the word "truly," used in the law, when speaking of the duties of the surveyor, referred to a power over the entry; that it was his duty to see that the entry and survey agreed. This would be a dangerous construction of the law, as it would authorize the surveyor to determine the rights of claimants, and to judge in his own cause, where a survey should he made that interfered with a claim of his, I conceive him ministerial, ́except in two cases; he is to examine the plat, that it is truly made: i. e., to see tha: the courses of the survey are truly laid down, and that it contains its complement of acres. It is to this part of his duty that the word truly refers. Again, he is to examine the legal proportion of the plat. In these two cases, he acts judicially; and it is right he should be vested with such a power; because, as he acts generally by deputy, it enables him to correct the work of his deputy, and also to prevent improper combinations between the employer and deputy. The second argument alluded to is this: that neither the entry-book, nor book for entering surveys, are record-books; and that legislative interference was necessary to constitute them such. (Ch. Rev. 96, 220.) They are books directed to be procured by law. The surveyor is a sworn officer, commissioned agreeable to law. Copies of en tries and copies of surveys, attested by him, are good evidence in a court of justice. I, therefore, consider every entry, and every survey, entered in these books, as being of record, and equally valid with those which are usually styled records. Mason, a purchaser of the commonwealth, having surveyed contrary to his entry, returns the survey to the surveyor's office, where it is examined and recorded, before the claim of any other person appears to the land. Can the commonwealth destroy Wilson v. Mason. *This cause was argued at last term, by Daveiss and C. Lee, for the plaintiff in error, and Jones and Mason, for defendant. *Daveiss, for plaintiff in error.—As the counsel for the defendant in error have objected to our right of appeal in this cause, I shall, at [*56 Mason's survey and refuse her grant to the land? The law has pointed out no mode by which the commonwealth can set aside Mason's survey, for her own benefit; neither was such a provision necessary; because he had paid the purchase-money, for so many acres of unappropriated land. It was vacant; and so soon as his survey was recorded, his warrant was carried into full execution, and the entry of 8300 acres became vacant, and reverted to the commonwealth, there being no warrant in the surveyor's office to cover it, the warrant being returned to the owner with the plat and certficate of survey. Or, being recorded, is the same thing in effect, as it can never be again acted upon, being executed by actual survey. (Ch. Rev. § 3, p. 95, 96.) Any practice to the con trary, I deem illegal, and contrary to law. From this statement of facts, I determine Mason's right to be good against the commonwealth. As the commonwealth can take no advantage of Mason's surveying, contrary to entry, shall Wilson, by his subsequent special entry, when he had full and perfect knowledge of the place where Mason's survey was made, and of its being recorded? There are only two ways of destroying a man's right to a tract of land. By caveat, after survey and before the title is complete; or, by a suit in chancery after the grant has issued. In the present case, Wilson has chosen to enter a caveat to prevent the emanation of a grant to Mason; alleging that Mason has surveyed contrary to entry, and that it is vague, for which reasons he claims the land by virtue of a special entry. There are four causes stated in the land-law which authorize the entering of a caveat 1. Failing to register the plat and certificate of survey, within twelve months after making the survey: 2. If the breadth of the plat be not one-third of its length: 3. If any person shall obtain a survey of land to which another hath by law a better right, the person having such better right may in like manner enter a caveat, &c. 4. If the plaintiff in a caveat recover judgment and fails to deliver the same, &c., into the landoffice, within six months after judgment, it shall be lawful for any person to enter a caveat, &c. The first two and fourth causes are penalties which any person may take advantage of, and do not apply to the present case. The third requires an existing right in the caveator, at or before the time the survey caveated is recorded. From an attentive consideration of this passage in the law, it conveys to me this idea: "Shall obtain a survey of lands," means, subsequent to the passing of the law, and after the survey is recorded; and not from the making, because the survey is not complete until it is recorded; neither could he "obtain" it, until the surveyor has performed that part of his duty, after which it is to be delivered to the proprietor with the warrant. Previous to the recording, I consider the survey to be under the direction of the owner, and that he may make any alteration he pleases in it, but not after; although a different practice has prevailed, and which, upon inquiry, will be found to be contrary to law. It is important to this cause, to consider another passage in the same sentence of the law; "to which another hath by law a better right." The word hath is in the present tense, and refers to the time of obtaining the survey. If my construction relative to the word obtain be right, the claim of the caveator must exist, before or at the time of recording the survey. I am confirmed in the propriety of this interpretation of the law, for the following reasons. If a deputy-surveyor makes a survey, the principal ought not to sign it, until it is recorded; then the signature makes it ready to be delivered. If made by the principal, he will not deliver it, before it is recorded. The survey cannot be considered as complete, until all the requisites of the law be performed; the party is then entitled to it. Neither will the register of the land-office receive it, without that formality. Without these requisites, it is of no more value Wilson v. Mason. first, confine myself to that point; because, if the court should agree *57] *with them in opinion on that question, much time will be saved and much useless discussion prevented. It is contended, that by the laws of Virginia, upon which the title to the land in dispute depends, and which *58] give the remedy *by caveat, no appeal or writ of error will lie. The land-law of Virginia, as it is called, viz., the act of May 1779 (Chancery Revision of the Laws of Virginia, p. 94), entitled "an act for establishing a land-office, and ascertaining the terms and manner of granting waste and unappropriated lands," which directs the manner of proceeding upon caveats, enacts, that "the court" (that is, the general court) "shall proceed to determine the right of the cause in a summary way, without pleadings in writing; impannelling and swearing a jury for the finding of such facts as are material to the cause, and are not agreed by the parties; and shall thereupon give judgment, on which no appeal or writ of error shall be allowed." This law, it is said, was in force at the time of the separation of Ken tucky from Virginia; and that by the act of assembly of Virginia, of December 1789 (Rev. Code, p. 56, § 7), which prescribes the terms upon which Kentucky might become an independent state, after the 1st of November 1791, it is provided, that all private rights and interests of lands, within the said district, derived from the laws of Virginia, prior to such separation, than waste paper; it cannot, therefore, be said to be "obtained," without their being performed. The first two and fourth causes, which justify the entering a caveat, I have already said, do not apply to the present case. It remains to be considered, whether Wilson has pursued the statute, so as to bring his case within the third cause: Had he "a better right” to the land surveyed for Mason, and for which he has instituted this suit, than Mason had, at the time the survey was recorded? A caveat is a new and summary mode of proceeding, in derogation of the proceedings at common law, instituted by statute; it is necessary, therefore, to pursue the statute strictly, and show to the court that the caveator has a clear right to pursue that mode of proceeding. 1 T. R. 141. Wilson's entry was made on the 9th day of April 1784. To the date of his entry, I fix the commencement of his claim to the land in controversy, it being the first certain and evident act of ownership manifested by him; which is upwards of four months after Mason's survey had been recorded. As Wilson's right did not exist at the time Mason's survey was recorded, he has failed to prove the better right required by law; neither has he pursued the statute, by assigning proper causes for caveating. Surveying contrary to entry, or making a vague entry, are not stated in the law, as exceptions to a survey, or causes for entering a caveat. True it is, that there are instances in which surveying contrary to entry would be a good cause of caveating. But this is where there is an existing right, before the survey is made or obtained; and the question would then rest on having the better right to the land. The favorable light in which surveys have been viewed by the legislature is apparent in all the laws which have been enacted respecting the titles to land. They are all to be considered as one law, forming one general system on the same subject.1 The surveys here alluded to were injurious to the interest of the commonwealth, but being made by the proper officer, were confirmed. In this case, the commonwealth is not injured, and Wilson, through his partner, Handley, had every information necessary to guard him against an interference with Mason's survey. 1 Many acts passed the Virginia legislature, giving further time to return plats, &c. Wilson v. Mason. shall remain valid and secure, under the laws of the proposed state, "and shall be determined by the laws now existing in this state." *But we shall contend: 1st. That the jurisdiction and powers of [*59 this court do not depend upon the laws of. Virginia, but upon the constitution of the United States, and the acts of congress. 2d. That the laws of particular states lose their force, when they contravene the acts of congress. 3d. That by the law of Virginia a right of appeal is allowed upon a caveat. 1. By the constitution of the United States, Art. III. § 2, “the judicial power shall extend " "to controversies between citizens of different states," and in all cases, except where a public minister, or a state, shall be a party, "the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make." Congress have not excepted the present case; it, therefore, follows, that by the constitution of the United States, this court has appellate jurisdiction of the cause. 2. By the constitution of the United States, Art. VI., "this constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land; and the judges, in every state, shall be bound thereby, "anything in the constitution or laws of any state to the contrary notwithstanding." By the 10th section of the judiciary act of Considering the parties both as purchasers of the commonwealth, deriving their claims from the same source; Mason as the first, and Wilson as the second, the following principles will apply in this case respecting notice. Lord Hardwicke said, in the case of Le Neve v. Le Neve (Amb. 446; 3 Atk. 634); "that the taking of a legal estate after notice of a prior right, makes a person a malá fide purchaser, and is a species of fraud." If a person does not stop his hand, but gets the legal estate, when he knew the right in equity was in another, he will be rebutted by this maxim, "fraus et dolus nemini patrocinari debent." In the case of Abney v. Kendall (1 Eq. Cas. Abr. 330, pl. 1; 1 Chan. Ca. 38),1 it was determined, that if A., having notice that lands were contracted to be sold to B., purchases those lands, and takes a conveyance, it shall destroy the purchase, and the land shall be reconveyed to B. Mason being considered the first purchaser of the commonwealth, having obtained his survey through the means of her agent (though contrary to entry, yet of which she can take no advantage, and which worked no iniquity to any person, the land being vacant), by recording the survey, the entry above the forks of the creek was abandoned. Wilson having notice, before he made his entry, that Mason had appropriated the land by the recording of the survey, cannot support his claim under the statute; judgment, therefore, must be entered for the defendant. The preceding pages contain my opinion delivered in the caveat, George Wilson against Richard Mason, devisee, &c., at the June term 1800, of the district court of the United States for the Kentucky district. As the principles on which the decision was founded will be brought before the supreme court of the United States, where I can have no opportunity of assigning my reasons in support of the judgment, with due deference, I solicit the court to permit the opinion to be read; by which the principles which governed me in the decision will appear fully before the court which is to reverse or affirm the judgment I have given between the parties. This request is grounded upon this single consideration, that what I have been officially obliged to do, may be examined, before a final inquiry is had respecting my judicial acts. HARRY INNES. May 18th, 1801. (Signed) 11 Chan. Cas. 38, Merry v. Abney, the father, Abney, the son, and Kendall. |