Opinion
04-19-1810
Depew v. Howard and Wife
Hay, for the appellant. Wickham, contra.
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
Jacob Depew brought a suit in Chancery in the County Court of Botetourt, against John Howard, and Mary his wife, George Lemmon and Benjamin Howard, to set aside a patent granted to John Howard for 215 or 250 acres of land on the waters of Glade Creek, in the said County, so far as the same comprehended fifty acres of land, for which the complainant had also obtained a patent subsequent in date to Howard's patent, but founded upon an entry prior to Howard's entry.
The grounds of equity stated in the bill are, that the defendants had notice of the plaintiff's prior entry, and that their location calls specially for these fifty acres; that Howard's survey was never actually made; that, the plaintiff being kept ignorant of it, a patent, prior in date to his, was fraudulently issued thereon; that he entered a caveat, (but in what Court he does not say,) which was dismissed " either because he could not attend to it, the small pox being then at the Court-house, or because the Howards resided out of the State, so that no summons could be served on them."
The defendant John Howard, in his answer, declares that his wife, in his absence, in 1778, or 1779, purchased the land in dispute of one Thomas Welch, who had then resided on it several years, for a valuable consideration paid out of his the defendant's property; that he was in peaceable possession of the said place until he came last to Kentucky, in the year 1789, which was subsequent to the location under which the complainant claims. Mary Howard, by whom the entry complained of was made, (in the absence of her husband it appears,) swears, in a separate answer, that Depew never made his claim known to her; but that, being informed he intended to enter for the place called Welch's, and, thereupon, dreading lest there might be some defect in Welch's title, she went immediately to the Surveyor's office and examined whether Depew had made an entry to include Welch's place, and found none; that she got the Surveyor to examine his entry book, which he did particularly, and told her there was no such entry; upon which she made her location to include it. This entry was made by her October 9, 1788, and Depew's on the 30th of September preceding; but, " from the objects of description in the location, neither she nor the Surveyor thought it was intended to cover the place known by the name of Welch's."
John Depew's entry, under which his son Jacob Depew claimed, was by virtue of a land-office treasury warrant of 17,854 acres, for " fifty acres of land on the waters of Glade Creek, joining the lines of the land of John Howard, and his own land on Welch's run."
Mary Howard's entry, by virtue of a land-office treasury warrant of 500 acres, was for " 250 acres of land on the waters of Glade Creek, joining the lines of the land she lives on and William Francis's land and James Goodman, to include an old survey known by the name of Welch's place, and a new survey joining said Francis, and the one she lives on."
The answer of Benjamin Howard, by whose agency, as attorney for John Howard, the surveys were completed, states that he employed the surveyor to make the surveys, but was not present when they were made, being called on business down the country, and having intrusted the surveyor to survey the entries regularly. George Lemmon (a purchaser from the defendants) admitted his being in possession of about 120 or 130 acres of land for which he had not received a conveyance. All the defendants positively denied all fraud and combination.
Another entry made by Mrs. Howard, on the 14th of March, 1782, being for " 500 acres of land joining her own land, and the land of John and Hugh Mills, and to extend to the mountain for quantity," was mentioned in the bill and answers, but does not seem to have been relied upon by the defendants.
The decree of the County Court was, " that the patent or patents that had issued for the defendants, so far as they interfere with the lands of the complainant, be annulled."
The Superior Court of Chancery for the Staunton District " being of opinion that Depew's entry was too vague, and that the appellants (having the legal title) ought not to be compelled to relinquish it to one who has not greater equity," reversed the said decree, and dismissed the bill; whereupon Depew appealed to this Court.
Decree affirmed.
Hay, for the appellant. The entry of Mrs. Howard in 1782, had no relation to the land now in question; neither, in fact, did she rely upon it, as appears by her making the subsequent entry, which expressly calls for Welch's place. The only question, therefore, is, whether Depew's entry was sufficient; for, if so, her entry in 1788, being made nine days after his, was void, since it evidently comprehended the right of another person. In Hunter v. Hall, 1 Call, 209, it is said that, without a previous survey, no person can strictly conform to the terms of the act of 1779, in making a location; but that that act " unavoidably requires, and has uniformly received, a liberal construction in this respect." Where an entry is made in a waste country, with no patent lines to refer to, it is reasonable to require the locator to specify his beginning and courses as nearly as possible: but, where there is much patented land, a general reference to lines already ascertained ought to be sufficient. Indeed, if the person locating undertakes to specify the lines he probably might conflict with some older patented lands.
1 Rev. Code, p. 344, s. 1.
But, admitting the first entry vague, does it necessarily follow that the second (though precise) shall avoid the first in toto? It would be more reasonable (and I think it has been so decided) to give the second locator his choice, leaving enough for the first. Thus justice would be done to both parties, in case land enough for both could be found.
Wickham, contra. 1. Every objection to the entry of Mrs. Howard, in 1782, on account of vagueness, applies equally to that of Depew; and her's is the superior equity. The conduct of Depew is entitled to no favour. He evidently appears to have meditated an unwarrantable advantage over the appellee. The objection that her survey comprehends the right of another has no application. It does not appear to be the fact; and the law applies to cases only where it evidently appears on the face of the plat or certificate of survey. Admit that the letter of the act of 1779 is not to be insisted on; that mathematical certainty in making an entry is not requisite; yet surely a reasonable certainty is necessary, to prevent great injury to the Commonwealth and to individuals, for, otherwise, a warrant of 50 acres might cover 500, and persons wishing to survey adjoining lands would be put to unnecessary expense and trouble. I do not contend it is absolutely necessary to have a certain beginning, though it is desirable. Where an entry is " of all the vacant land within certain points," or " including certain objects," it is sufficient. But, in the present case, Depew's entry was altogether uncertain; there being no less than three different places where he might have surveyed and satisfied the calls of that entry. Greater certainty is required, and attainable, in a settled country than in a wilderness; because, in the former, old lines are well known, and natural objects have fixed names.
1 Rev. Code, 144.
It may be objected that Mrs. Howard acted improperly in shifting her location; but, being in possession, she had an undoubted right to pursue all legal means to protect her title; on the same principle which authorizes a third mortgagee to protect himself against a second by buying in the first.
2. The question now in dispute was proper for a caveat, and not for a Court of Equity. The bill assigns no certain reason for not prosecuting the caveat, but says it was dismissed, either because the small pox was at the Court-house, or the caveatees were out of the country. If the former was the case, it was a good ground for a continuance. If the latter, the Court should have directed a publication against the absentees. A caveat was peculiarly proper; since every ground of equity as well as law might have been taken upon it.
Call, in reply. Depew's entry was sufficiently certain. The words " joining the lines" must signify lying along the lines, in their whole extent; not barely touching them, as Mr. Wickham seems to suppose. The Surveyor and Depew supposed, from the narrowness of the space, that the 50 acres would fill it. No particular form of words is necessary in an entry; but certainty to a common intent is sufficient; and, as in deeds, so in entries, the intention of the parties ought to furnish the rule.
Pow. on Cont. 242; 6 East, 104.
There can be no inconvenience in an entry's covering more land than the party is entitled to; for any person wishing to make another entry has a right to call on the first locator to survey his land; as in the case of surplus land included in a patent. A poor illiterate man ought not to be defeated of his property, because a public officer has made a mistake. In Field v. Culbreath, and Hunter v. Hall, the several entries established were not more certain than this. In Currie v. Martin, Banks's entry (assigned to Currie) was more uncertain. The entry, too, was more uncertain in Consilla v. Briscoe; and yet was supported by this Court, to which the appeal was taken from the Supreme Court for the Kentucky District. In Miller v. Page, it was held that the entry was too vague: but there, the word " between" certain lines was considered too indefinite: here, it is " joining the lines of John Howard," & c,; which is sufficiently certain.
1 Rev. Code, 148.
2 Call, 547.
1 Call, 209.
3 Call, 28.
Hughes's Kentuc. Rep. 43.
A subsequent mortgagee, having prior notice of a second, has no right to buy in the first. So here, Mrs. Howard, having knowledge of Depew's title, and fraudulently affecting to misunderstand it, shall not be protected by her subsequent entry.
1 Pow. on Mort. 501, citing Cowp. 712, and 3 Atk. 646, Leneve v. Leneve.
As to the question of jurisdiction, the case of Witherinton v. M'Donald, is clear authority that a Court of Equity is the proper tribunal to try the question of fraud in obtaining a patent.
1 Hen. & M. 306.
Wickham. The case from Hughes's reports has no application. It was a settlement case; and " that gives locality." Such is the express opinion of the Court. Added to which circumstance, the certificate of the Commissioners was considered part of the entry. Miller v. Page [*] is a direct authority in our favour. In Currie v. Martin the " beginning" of the entry rendered it certain enough. In Field v. Culbreath, the entry, " including all the vacant land between certain lines" was also certain. As to Mrs. Howard's being bound to take notice of Depew's entry; she had a right to disregard it, if void; if not void, it stands on its own merits.
Judge Tucker. Judge Roane. Judge Fleming.
OPINION
May 23, 1810. The Judge pronounced their opinions.
TUCKER JUDGE, after stating the case. As there is nothing in any part of the depositions to prove the charge of fraud in returning the survey, without such survey having ever been made, or in any manner to invalidate the matters contained in the several answers of the Howards, I pass them over.
The naked question upon this view of the subject is, whether the complainant has made out such a case as to entitle him to the aid of a Court of Equity. And I conceive he has not. The answers of the Howards state, that Thomas Welch, of whom they purchased in 1778 or 1779, had previously resided on the spot several years. They had a right to presume that he had some title thereto, which, if not perfected by a patent, was recognized by the act of May, 1779, c. 12; and, when informed that there was danger of that title being disturbed, had a right to take any legal means whatsoever for securing the same. Mary Howard's entry, made the 9th of October, 1788, for this purpose, cannot therefore be deemed fraudulent, as against the complainant. If, by his entry of the 30th of September preceding, he had obtained an actual legal priority, he had nothing to do but to proceed to survey his entry, and obtain a patent for the lands; or, if she proceeded to survey also, then the law was open to him to file a caveat, in which case his legal priority must have been established, unless she had produced some elder title founded in law. But he tells us he did sue out a caveat. Why then did he not prosecute it with effect? Or, if one caveat was improperly dismissed, why did he not sue out another? for the dismissal of one caveat, unless it be upon the merits, neither decides the title to the lands, nor bars another subsequent caveat, if brought within proper time. There was certainly time enough between the date of the defendants' entry in October, 1788, and their survey in October, 1796, and, from that period till the time of the emanation of their patent, (which could not be until the survey had remained six months in the register's office,) to have tried his title to a patent, by that mode of proceeding. The law (for aught that appears to the contrary) was competent to have done him complete justice. Having omitted to pursue that course, as he might have done, he has, I conceive, no right now to ask for the aid of a Court of Equity. If Mary Howard's location of lands, within which his location might be supposed to lie, was against conscience, what must we say of his entry and location of a place which he knew to have been in the possession of her husband, and Welch under whom he claimed, for twenty years before? If equity condemns the former as against conscience, the latter is ten times more liable to its censure.
Hunter v. Hall, 1 Call 206.
3 Call 259, 266, Johnson v. Brown; 1 Wash. (VA) 118, White v. Jones, Staples v. Webster, October, 1804, MS.
With regard to the second question, and upon which the Chancellor seems to have decided the cause, namely, whether Depew's entry was too vague and uncertain, I am decidedly of that opinion. From an inspection of the plat it will appear that the fifty acres might have been laid off, so as to " join the lands of John Howard, and his own land on Welch's Run," at any spot between the letter K. and the letter T. in the plat, leaving a surplus of from 150 to 200 acres, within that area, while his entry did not amount to more than a fourth part of the quantity therein. The distance from these points is considerably more than a mile and a half; while his survey, as actually made, only touches Howard's 68 acre tract, at the point B., leaving that point immediately, and running a zig-zag course of five different lines, before it arrives at his own line, on Welch's Creek, down which it runs only sixty poles, and from thence to the beginning, without even touching Howard's lands at any other point. Fifty, or even five hundred different plats might have been laid down within the same limits, equally conformable to the terms of his entry. Can this be called a compliance with the law, which prescribes that the party shall direct the location of the lands for which he makes an entry, so specially and precisely, as that others may be enabled, with certainty, to locate other warrants on the adjacent residuum? I forbear to take up the time of the Court with a repetition of the reasons offered by me in the case of Miller v. Page, in support of the like opinion in that case; and shall conclude with saying, I think the Chancellor's decree is right, and ought to be affirmed.
May, 1806, MS.
JUDGE ROANE. The entry of Mrs. Howard, of March 14th, 1782, seems to have been justly abandoned on all hands as incompetent: that of Depew, on the contrary, of September 30, 1788, taken with reference to the actual situation of the land, as exhibited by the connected survey, seems to be sufficiently certain, under the just construction of the land-law, by this Court in many instances, by the Supreme Court of the United States, [*] and the Courts of the State of Kentucky. Having had occasion to refer to those decisions, particularly in the case of Miller v. Page, (MS.) I shall not again enter into the subject; but have no doubt but that the rejection of the entry now in question, would shake many titles in this Commonwealth, which have not been carried into grant. On the trial of a caveat, therefore, I should have been of opinion that that entry, so taken, was sufficient.
But this is a resort to a Court of Equity for relief against a legal title: and it is readily admitted that such resort may be had, under circumstances making the interposition of equity just and proper; as in the case of Jones v. Williams, where the caveat had been dismissed through an accident attending the summoning of the plaintiff's witnesses; but, then, this must be made to appear to the satisfaction of the Court, as was done in that case. In the case before us it is alleged that the caveat of the appellant was dismissed, because he could not attend to it on account of the small-pox, or because two of the appellees resided out of the State, so that the summons could not be served upon them. With respect to the first fact, there is no proof of it whatsoever: and as to the second, the caveat would not have been dismissed, I presume, (if it were not served,) if the appellant had shewn to the Court that its non-execution did not proceed from any neglect of his. I infer this from the 35th section of the land-law.
1 Wash. (VA) 230.
1 Rev. Code, p. 146.
On neither of the grounds, therefore, was the appellant competent to come into equity. But, if it were otherwise, as to his admission into the Court; the appellees having got the legal title, that title will not be disturbed, unless the appellant has a superior right in equity to recover the identical land in question. So far from this being the case, it is in proof, from the confessions of the appellant's father, at a date posterior to the time of making the subsequent entry of the appellee, that he did not consider this land as vacant, and therefore supposed it was not located or appropriated thereby. His own construction of his entry, therefore, invalidates it, in a Court of Equity, as applying to this land; which might have been otherwise, under my construction of the land-law upon this subject, in the absence of all proof touching such a construction on his part. I am therefore of opinion that the decree be affirmed.
JUDGE FLEMING. It is unnecessary to add any thing to what has been said. I think it a very just decree; and it is affirmed by the unanimous opinion of the Court.
[*]Note. In Miller v. Page, (May, 1806,) Miller's entry was for " 1,000 acres, between the lines of Henry Cary, deceased, on both sides of Hatcher's Creek, beginning on the same." Judge Roane was of opinion that this entry was sufficiently certain; but the rest of the Court decided otherwise. --Note in Original Edition.
[*] Note. See Wilson v. Mason, 1 Cranch 45, 89, 92.