Besides, the question, whether a writ of error or appeal will, or will not, lie upon a caveat, does not affect the title to the land; and the act of assembly of Virginia, of December, 1789, was only intended to protect the rights to land in Kentucky acquired under the laws of Vir

ing 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 land office within six months after judgment, it shall be lawful for any person to enter a caveat, &c. The two first 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 record- | ed; and not from the making, because the survey is not complete until it is recorded; neither could he 'obtain' it till 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 till 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 till 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 than waste paper; it cannot therefore be said to be obtained," without their being performed.

The two first 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?

3d. A right of appeal upon a caveat did exist in Virginia at the time of passing the act of assembly of December, 1789, c. 53, respecting Kentucky. By the act of the Virginia assembly, October, 1788, c. 67, s. 11 and 12, the cognizance of caveats was given to the district courts, and by the 16th section of the same act. an appeal is allowed as of right in all cases.

tions 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 haying the better right to the land.

The favourable 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.*

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.

Considering the parties both as purchasers of the cominonwealth, 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 mala 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. 339. pl.1. 1 Chan. Ca. 38+ 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, were I can have no op

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 that 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)

*Mauy acts passed the Virginia legisiature giving further time to return plats, &c.

+1 Chan. Cas. 38. Merry v. Abney the father. Abney the son, and Kendall.

The act of December 12, 1792, s. 6 and 9, Rev. Code, p. 80, 81, re-enacts those clauses of the act of 1788.

Mason, for defendant in error.

It is not denied that the acts of congress are, in many cases, paramount to the laws of the individual states; but even a general position of that kind will not decide the present question. This action was brought in a state court, under a state law, before congress legislated upon the subject, and even before congress, or the constitution of the United States, had an existence. Can such an action be affected by subsequent acts of Congress?

The law by which Kentucky was erected into a separate state passed the Virginia legislature in December, 1789. This is an unalterable 61*] law, embracing the citizens *of both states. It is a compact by which they mutually agreed that the rules of property should not be altered. If we admit that by the act of 1792, appeals were allowed in the case of caveats, the admission proves nothing in the present question, because the law of 1789 is an unalterable law, and confined to the then existing state of things. It was not in the power of one of the contracting parties to change the terms of the compact.

But it is said that there was a right of appeal at the time of that compact. Let us examine the laws relative to this subject. The first act is that of 1779, mentioned by the opposite counsel, which declares that caveats shall be tried in the general court, and that there shall be no appeal or writ of error. The next is the act of 1788, which transfers the jurisdiction of the general court to district courts, and declares that "they shall have the same jurisdiction concerning" "caveats" "as the general court heretofore had by law." But the jurisdiction which the general court heretofore had by law was an exclusive and final jurisdiction, from which there could be no appeal. If, then, the district courts were to possess the same jurisdiction, it must be an exclusive and a final jurisdiction. But it is said that by the same act of 1788, an appeal in all cases from the district court was a matter of right. This must evidently mean in all cases where a right of appeal before existed from the general court to the court of appeals; but cannot be understood to give an appeal in a case where it had been expressly excluded by an existing law. The intention of the legislature was to put the district court, as to all cases arising within the district, exactly in the place of the general court, and to give them the same jurisdiction, to be exercised in the same manner, with the same limitations, and liable to appeals only in the same cases. But the act of 1788, erecting district courts on the eastern waters, did not affect Kentucky. The legislature had before, by an act passed in 1782, erected a court on the western waters, called the supreme court for the district of Kentucky, to which it had transferred all the powers and jurisdiction theretofore exercised by the general court of Virginia; and with the rest, the power to try caveats and to give judgment thereon, without any appeal or writ of error to their judgment. The act of 1788 did not take away the ex62*] *clusive cognizance which the supreme court for the district of Kentucky had respecting caveats, but they retained it till the final

separation of Kentucky from Virginia; after which the legislature of Kentucky passed no law authorizing an appeal; so that under the state laws, it is clear that no appeal or writ of error would lie. There being then no appeal under the state laws, the question will be simply whether a writ of error will lie to the district court of the United States for the Kentucky district, upon an action carried there from the state court, which, under the laws of the state, had a final and exclusive jurisdiction of the cause.

The 22d section of the judiciary act of 1789, (Lars U. S., vol. 1, p. 61,) which allows appeals and writs of error generally, did not contemplate a case like the present. This court is bound to take notice of the laws of the several states. By the 34th section of the same judiciary act, p. 74, the laws of the several states are to be the rules of decision in cases where they apply. The remedy by caveat is given by the state law, and the party who chooses to take that remedy must take it with its condition annexed, that no appeal or writ of error shall be allowed. A purchaser under the commonwealth of Virginia acquires his right under this condition. It is a part of the contract from which this court cannot absolve him. The parties to this suit are not the only parties interested in this question; for while the right is hung in dubio, whilst it is uncertain to whom the grant ought to issue, the state taxes cannot be collected, the commonwealth having no tenant to whom to resort. Wilson has sought the summary process by caveat, and ought to be bound by the restrictions of that law under which he claims his remedy. He was not compelled to use the summary remedy; he might have resorted to chancery, and then the commonwealth would have had a tenant to pay the taxes. He ought not to have the benefits of this kind of process, without submitting to the inconveniences which may be supposed to attend it. If this opinion is correct, although the laws of the United States provide generally that writs of error may be had, they can only give them as a remedy where a right exists; and if Wilson's right is gone by the judgment of the court below, he is precluded from suing it out by the statute under which he claims. *Lee, in reply.

[*63

This caveat is brought from the district court of the United States, and not from a state court. It is true that it originated in the state court, but it was the defendant Mason, and not Wilson the plaintiff, who brought it into the court of the United States; and if the judgment of that court becomes thereby liable to be reversed upon a writ of error, it is a consequence attributable to the act of Mason alone.

There is nothing peculiar in the nature of the proceeding by caveat, to exclude it from the general appellate jurisdiction which is given to this court by the constitution and laws of the United States. It is not true that this court are to look into the laws of Virginia for their right to correct the errors of the inferior courts of the United States. When a cause is brought from a state court into a court of the United States, it is to be proceeded upon as if it had originated in the latter court, and the act of congress has expressly provided for an appeal or writ of error in the very case of an action

removed from a state court into an inferior court of the United States. Unless this case can be shown to be within some express exception to the general rule, none ought to be presumed by implication. With regard to the compact between Virginia and the inhabitants of Kentucky, it is true that in all matters of substance, where the right of property depends upon it, it is binding upon this court; but in matters of form only, it could never receive the strict construction contended for, even between the parties themselves. The reasoning of the opposite counsel would go to prove that every caveat, depending upon the laws of Virginia, must be tried in the courts of Virginia only, because they had the sole right of trying a caveat at the time of the compact. It would prevent the states of Virginia and Kentucky for ever from modifying and regulating their system of courts, and neither state could ever afterwards authorize an appeal upon a caveat. But an appellate jurisdiction on caveats did exist in Virginia at the time of the compact. It appears by the act of congress, vol. 1, p. 278, that Kentucky did not become an independent 64*] state till June, 1792. The county courts of Virginia had before that time cognizance of caveats as to lands within their respective counties. Laws of Virginia, Rev. Code, p. 92, s. 11; and in p. 88, s. 53, an appeal is given from the county courts to the district courts in all cases of a certain value, or where the title of land is drawn in question; and in p. 69. s. 14, an appeal or writ of error is allowed from the district courts to the court of appeals, in the same manner as from the county to the district

courts.

As to taxes, the state may tax the land be-fore any patent has issued, if they think proper. It is not necessary that there should be a tenant.

The Court directed the counsel to proceed in the further argument of the cause, observing

1.--The following is the substance of those parts of an act of assembly, which are material to this cause, contained in the chancery revision of the laws of Virginia, published in 1785, by order of the general assembly, p. 94. entitled 'An act for establishing a land office, and ascertaining the terms and manner of granting waste and unappropriated lands,' May session, 1779.

The preamble recites, 'Whereas there are large quantities of waste and unappropriated lands within the territory of this commonwealth, the granting of which will encourage the migration of foreigners hither, promote population, increase the annual revenue, and create a fund for discharging the public debt, be it enacted,' &c.

§ 1. That an office be constituted for the purpose of granting lands, and a register of the said land office be appointed, &c.

$2. That any person may acquire title to so much waste and unappropriated lands as he or she shall desire to purchase, on paying the consideration of 401. for every 100 acres, and so in proportion,' &c.

$ 3. Register to grant printed warrants under his hand and seal of office, specifying the quantity of land, and the rights upon which it is due, authorizing any surveyor duly qualified according to law to lay off and survey the same, 'which warrants shall be always good and valid until executed by actual survey:' no warrant to be issued other than pre-emption warrants, before the 15th of October, 1779. No surveyor to permit the entry or location of any warrant before the 1st of May, 1780. A surveyor to be appointed in every county.

Every person having a land-warrant founded on any of the before-mentioned rights, and being desirous of locating the same on any particular

that they would consider this point with the others.

Lee, for the plaintiff in error.

The question is, who has the better right to the grant for 8,300 acres of land, surveyed for George Mason on the 2d of October, 1783.

1st. The decision of this controversy depends on the laws of Virginia, prescribing the terms and manner of acquiring title to waste and unappropriated lands; with which there must be a legal and exact compliance.'

According to these laws there must [*65 be a warrant, an entry, and a survey; the warrant being the foundation of the entry, and the entry directing and controlling the survey. If the entry be made without a warrant, [*66 or if the survey be made of other land than that described in the entry, in either case there is a defect of title.

*In this caveat one of the causes as- [*67 signed is, that the survey of Mason was made contrary to his entry, and this we conceive to be a fatal defect in his title.

2d. The entries made on the 29th of April, 1780, by G. Mason (from whom the defendant derives his title) of his two warrants, No. 1, for 8,400 acres, and No. 2, for 8,300 acres, were valid and sufficient entries of land on the east side of Panther creek, and above the mouth of the west fork thereof, at the time those entries were made. The entry of warrant No. 1 is "on 8,400 acres of land to begin on Panther creek on the east side thereof, opposite to a beech on the west side, about four miles above the mouth of the west fork, and to run up and down the said creek, and eastwardly for quantity."

The entry of warrant No. 2 is " on 8,300 acres to begin at the upper corner of his 8,400 acre entry, and run up the creek on the east side, and back for quantity."

3d. If the explanation made on the 27th October, 1780, of the entry of warrant No. 1, on

waste and unappropriated lands, shall lodge such warrant with the chief surveyor of the county wherein the said lands or the greater part of them lie, who shall give a receipt for the same, if required. The party shall direct the location thereof so specially and precisely, as that others may be enabled with certainty to locate other warrants on the adjacent residuum: which location shall bear date on the day on which it shall be made, and shall be entered by the surveyor in a book to be kept for that purpose, in which there shall be left no blank leaves or spaces between the different entries.'

The surveyor at the time of making the survey shall see the same bounded plainly by marked trees, except where a water course, or ancient marked line, shall be the boundary, and shall make the breadth of each survey at least one-third of its length in every part, unless where such breadth shall be restrained on both sides by mountains unfit for cultivation, by water courses, or the bounds of lands before appropriated. He shall, as soon as it can conveniently be done, and within three months at farthest after making the survey, deliver to his employer, or his order, a fair and true plat and certificate of such survey, the quantity contained, the hundred, (where hundreds are established in the county wherein it lies,) the courses and descriptions of the several boundaries, natural and artificial, ancient and new, expressing the proper names of such natural boundaries, where they have any, and the name of every person whose former line is made a boundary; and also the nature of the warrant and rights on which such survey is made. The said plats and certificates shall be examined and tried by the said principal surveyor, whether truly made and legally proportioned as to length and breadth, and shall be entered within three