Wilson v. Mason.

Mason's industry; and now, he would fain make the court believe he was an innocent purchaser, striving to avoid a loss, the danger of which he had incurred by pure misadventure.

Upon the whole, then, Mason having obtained a right to this tract of land against the commonwealth, and Wilson having notice of that right, before he purchased, has no claim at all; but if he had, his remedy is not by

caveat.

Jones, on the same side. This cause naturally divides itself into two questions. 1st. Whether Mason has acquired a right to the patent. 2d. If Mason has not, whether Wilson has; for if neither has a right, Wilson can recover nothing.

I. The entry of Mason, in April 1780, is supposed to be so absolutely binding upon him, that he could not alter it, without withdrawing it entirely, notwithstanding that he subsequently said he was mistaken in supposing the land to lie above the west fork, when in fact it was below. A man may go upon the land, and fix in his mind a certain tract, but when he goes to the surveyor's office, he may mistake its situation, and say it is on the east, when it lies on the west, or the north, when it lies on the south; but *when [*81 he discovers his mistake, an explanation is no evidence that his choice. has been altered. Here is no proof of an intention to withdraw his first entry; or to appropriate a different tract of land from that which he first intended. The only inference which can be drawn from the entry of October is, that he had been mistaken as to the point of compass, and as to the name of a particular fork of Panther creek. The land which he had chosen

lies above a branch of Panther creek, which he supposed to be called the west fork, but which is not now known by that name. Mason was one of the first, if not the very first, adventurer in the lands on Panther creek. There is no evidence, that particular branches of that creek had names given them, before he made his entries in April. He had as good a right to give names to places, as any one else.

But a survey itself is as good a location as an entry. Indeed, it is better, because it is an actual location and occupation of the land. The lines are not merely described by words, which are uncertain, but are marked out upon the land itself. It is a pedis possessio, an actual seisin. A survey dif fers from an entry, as a diagram differs from a problem; or a proposition from its demonstration. If notice is the object of the statute, a survey recorded is better than an entry, as it is more definite and certain. If the object is to give evidence of an appropriation, it is better than an entry in the surveyor's book, because it is an act en pais, an actual possession. The one is but the command to locate, the other is the location itself. In this case, entry does not conflict with entry, and survey with survey; but a prior survey and occupation, with a subsequent entry.

A strong difference is made by the act of assembly, between a survey and an entry. The first is a satisfaction of the warrant; and various clauses of different acts speak of a survey, as the execution of the warrant. But the entry does not affect the warrant, which is declared to be "always good and valid, until executed by actual survey." The entry, therefore, is but an intermediate process, by which the party gains a priority of right; it is intended merely as a substitute for a survey, untilan "actual survey" can be made. If, therefore, there had been no entry at all, yet

[*82

Wilson v. Mason.

Mason's right is equally good, as if his entry had been free from question. He has done the principal act itself, for which an entry is only a temporary substitute. Perhaps, he ran some risk before his survey was obtained; but when a survey is completed, the warrant and the entry are no longer of any effect or validity; they merge in the survey as the survey, does in the patent.

II. With respect to the plaintiff's right, it seems clear, that it must be a right existing at the time of the survey. If we were disseisors, as it is contended, then we gained a defeasible inheritance. We had possession, and whether legal or not, is of no consequence; it was a better right than Wilson's, and good against all the world but the lawful owner.

The acquisition of a legal title takes away the remedy by caveat. The warrant, entry and survey, constitute only an incipient equitable title, to be completed by the patent, which a caveat is the proper process to arrest. This being, then, entirely a contest about equitable rights, the process by caveat must be an equitable remedy, and gives the court an equity jurisdiction. If this caveat had not prevented, there is no doubt that Mason, having obtained and returned his survey in due time, would have had a patent, as a matter of course.

Suppose, the commonwealth had attempted, like any other vendor, to defeat the claim of Mason, would not a court of chancery have compelled a conveyance? Everything had been done by Mason, which the commonwealth had a right to require; as against her, therefore, there must have been a decree. If so, then, this court, exercising the same chancery powers with the court below, will give the same judgment which that court has rightfully given, in deciding that a contract existed between Mason and the commonwealth, which a court of chancery would have carried into effect; and that Wilson, having a full knowledge of that existing contract, became a subsequent purchaser; and therefore, as to Mason, he was a purchaser mala fide, and can never defeat the right of Mason.

*83] *Daveiss, in reply.-Can lands be appropriated in more ways than one? If it is decided, that the mode of appropriation is unique, then there can be no tantamount act: the one mode pointed out by the statute must be pursued. In attempting to come at the true construction of the land-law of 1779, it is highly important, to take into consideration the act which immediately proceeds it, for the settling of certain then existing claims and rights. They may indeed be called twin acts, being passed on the same day, and referring to each other. The preamble of the first act recognises the great variety of claims, and the evils resulting from various modes of gaining a title to lands; to remedy which, it declares it to be necessary "that some certain rule should be established," &c. The legislature, after settling existing claims, go on to provide a mode of acquiring titles in future, and to fix certain rules which should be observed by all future purchasers of public lands. The great evil intended to be remedied, was the existence of multifarious modes of acquiring titles. To give the act its proper remedial effect, it must be construed strictly; otherwise, the evil would continue to be as great as ever. For if you once decide that titles may be acquired in any other mode than that pointed out by the statute, you open again that door to perplexity and ambiguity, which the legislature intended to close for ever.

It may not be improper here to remark, that no objection has been

Wilson v. Mason.

raised to the intrinsic merits of Wilson's claim: all the objections arise from its relation to Mason's. Wilson, therefore, has an intrinsic legal claim, which nothing can defeat but a prior appropriation of the land. This brings us again to the great questions, what is a legal act of appropriation? and what lands can be called waste and unappropriated?

To ascertain the meaning of these expressions, it is not necessary to consult a glossary. The manner in which the legislature has used them, on various occasions, will leave no doubt upon the subject. Sometimes, they call land, waste and unappropriated, after it has been settled, and sometimes, even after it has been cleared and cultivated; and lands once legally appropriated by legal entry, may *again become waste and [*84 unappropriated, by the purchaser's not following exactly the provisions of the law. Hence, it is apparent, that when the legislature use the terms. waste and unappropriated land, they mean lands not appropriated in the manner prescribed by law.

We are then to inquire, whether, at the time of Wilson's entry, the land was such waste and unappropriated land, as, by the act of assembly, Wilson had a right to appropriate. We contend, that an entry is essential, and that Mason never entered for the land in dispute. The entry called for by the survey, is the entry of April 1780. That is clearly an entry for other land. It is a certain and a special entry: its beginning is certain, and is above the west fork: the survey is some miles below the west fork. But we are told, the name of west fork is uncertain; that the fork so called is not a west fork, but a north-east fork. But a name is different from a descrip tion: the name is arbitrary, and as long as a thing is known by a particular name, it is of no importance what that name is.

But ignorance of the country, and the danger of acquiring accurate knowledge of it, are alleged both as a proof of, and an apology for, the vagueness of the entry. If evidence and excuses of this kind are to be allowed, they will totally defeat the provisions of the law: it will let in those loose and vague claims which it was the object of the legislature to prevent. It is begging the question, to argue, that Mason was under a mistake, because he chose to alter his entry; and that what was originally in itself certain, was uncertain, because Mason, by a subsequent act, chose so to consider it. But there was a reason why Mason should wish to give it the appearance of a mistake, rather than of a removal of his entry. If he had expressly withdrawn his former entry, he would have lost his priority; and to save himself the trouble of examining all the intermediate entries, as well as the risk of omitting any of them, he chose to hold up the idea of correcting a mistake.

The entry of April, then, being sufficiently certain, the warrant attached itself to it, and the warrant and *entry taken together had the same [*85 effect as a special warrant, describing that identical tract of land. If Mason had bought, or could buy, a special warrant, stating descriptively the land, he could have no other land than that described in his warrant. When he bought his general warrant, he had the power of fixing its location at his election; having made his election, the power is expended, and the location fixed. (a)

(a) WASHINGTON, J.-Do you deny the right of removing an entry? Daveiss.-If it were res integra, I should. But the whole landed property of Ken

Wilson v. Mason.

But it is contended, that if the entry for 8400 acres was removed, the entry for 8300 was removed also; that the one is dependent on the other. This we deny. How is it dependent? Cannot one exist without the other? Or is it because both were made by one person? Suppose, the entry of warrant No. 2, had begun at a mile distance due north from the upper corner of entry No. 1. Would the removal of No. 1, be a removal of No. 2?

The description of the beginning of No. 2, was only a description of a certain place, as was that also of No. 1, and his removal of the location of warrant No. 1, did not alter that place. Suppose, you make an entry, the beginning of which is a certain natural boundary: I make an entry beginning at the north corner of yours: you afterwards remove your entry. Does mine follow yours, whether I will or not? Again, it is said, that No. 2 could not be surveyed, without surveying No. 1. But this can make no difference; it might make some additional trouble, but creates no impossibility. The lines of No. 1 may be run, so as to ascertain the beginning of No. 2.

It is said, that a survey is as good an act of appropriation as an entry, and equally answers all the objects of the statute. This might be a good argument, if the court could make laws; but the law does not so consider it. It limits no time in which the survey shall be made. The survey, therefore, cannot be considered as the act of appropriation. By the old land law, *86] indeed, a survey *was the substantial appropriating act; but the last clause of the land-law (p. 98) has altered it in this respect.

It is contended also, that a survey is better notice than an entry. When a law only modifies certain existing rights, it is to be considered according. to the rules of equity; but when a man claims under a law giving a right which did not exist before, he must bring his case strictly within the law. 4 Bac. Abr. 656; Birch v. Bellamy, 12 Mod. 540; Viner, tit. Statute, 506, 507. Notice was not the only object of the law in prescribing an entry. The greater object was to avoid confusion in the sale of lands, and perplexity in the titles, which would have a bad effect upon the sale, and to establish a uniform mode of appropriating lands and locating warrants. The argument that a survey is better notice than an entry, goes to prove that an entry is unnecessary. The surveyor is the agent of the commonwealth, with limited powers, which must be strictly pursued, or his acts are void. He is by law directed to proceed in a particular manner, and must not deviate. A special power given by statute must be strictly pursued. Rex v. Loxdale, 1 Burr. 450. The surveyor must pursue the entry, and a survey not corresponding with the entry is void: the statute has made an entry necessary. In a statute creating a new law, affirmative words imply a negative. Appropriation means a legal appropriation. The book of surveys could not be intended to give notice, because it is by law shut up for twelve months from every eye but that of the surveyor and his employer. The survey itself could not be notice, because, at any time within three months, it is alterable by the party, or by the surveyor, and until the end of the three months, it does not bind even the party himself, or the surveyor, and for twelve months afterwards, it is by law kept secret.

tucky would be shaken by such a judgment. I admit, therefore, that an entry may be removed; but Mason, as we contend, has not removed his entry of 8300 acres.

Wilson v. Mason.

The law being affirmative, that you shall give one kind of notice, implies the negative that no other notice shall be sufficient. The survey, in itself, was wrong, illegal and void. An act in itself wrong can never be the foundation of right. Land Law, p. 90; and Talbot v. Seeman (ante, p. 1).

*But in the whole course of decisions in Kentucky, a survey has [*87 never been considered as giving a right. The adjudications for eighteen years do not show the date of a survey to be material as to notice, nor has it ever been so considered. There has never been a title supported upon a survey, without an entry, since the year 1779. To overthrow this course of decisions, would shake the titles of half the land in Kentucky. Arguments drawn from the inconvenience of unsettling titles to real estate, have always been respected. If it is an error, yet where "it is established, and has taken root, upon which any rule of property depends, it ought to be adhered to by the judges, until the legislature think proper to alter it, lest the new determination should have a retrospect, and shake many questions already settled." 1 Bl. Rep. 264; Robertson v. Bland, 1 W. Bl. 264; Rice v. Shute, 2 Ibid. 696; Regina v. Ballivos and Burgenses de Bewdley, 1 P. Wms. 223. In Goodright v. Wright, Ibid. 399, the court said, “that the altering settled rules concerning property is the most dangerous way of removing land-marks." The same doctrine is held in Dawes v. Ferres, 2 Ibid. 2; and in Wagstaff v. Wagstaff, Ibid. 259.

The survey could be no notice to Wilson, because it was alterable; he knew it ought to be altered, and he might well suppose it would be altered. The book of surveys is no record, and is not of more authority than the book of entries, which is the only book to be resorted to, to know what lands have been appropriated. But if the survey was notice, it was notice only of an illegal act. Notice cannot make that lawful which was unlawful in itself, nor that unlawful, which was in itself lawful. Farr v. Newman, 4 T. R. 639.

THE COURT took time until this term to consider, and now the Chief Justice delivered the following opinion:

OPINION OF THE COURT.—This is a writ of error to a judgment of the Court of the United States for the district of Kentucky, rendered on a caveat, and is governed by the land-laws of Virginia.

*In the year 1779, the legislature of that commonwealth opened a land-office, and offered for sale, with some reservations, so much of [*88 that tract of country lying within its boundaries south-east of the river Ohio, as was then unappropriated: a part of which now constitutes the state of Kentucky.

Every person who would pay at the rate of forty pounds for one hundred acres, into the treasury of the state, became entitled to such quantity of waste and unappropriated land as was, at that rate, equivalent to the money paid, for which a certificate was given to the register of the land-office, whose duty it was, on receipt thereof, to issue a warrant for the quantity of land purchased, authorizing any surveyor, qualified according to law, to lay off and survey the same. A warrant might also be issued on certain other rights.

A chief surveyor was appointed for each county, whose duty it was, to nominate a sufficient number of deputies for the business of his county, and