John McLean

“ The first point we will notice, in which we think the court erred, is that in which they decide the complainants have no equity beyond the quantity of 8500 acres, because the survey, on its face, purports to contain but that quantity. This error, has arisen, it is presumed, from an idea that the survey purported to survey a part, and not the whole entry, and that the balance of the warrant was, or might have been, re-surveyed. ”

“ The land will lie between parallel lines, and embrace a rectangular form, and lie on both sides of the creek. We think, therefore, the court erred in not adopting the line I. B. as the base of Voss's entry, instead of the line I. A. Indeed, the experimental survey returned in the cause shows, that to make Barebone a locative call, would be to give Allen the most ludicrous figure imaginable-that from the course of the stream, it is impossible to hypothecate lines parallel to each other, which will embrace the stream. ”

“ If a call be impracticable, it is rejected as surplusage, on the ground, that it was made through mistake; but if a call be made for a natural or artificial object, it shall always control mere course and distance. Where there is no object called for, to control a rectangular figure, that form shall be given to the survey. These principles must now be applied to the call for the creek in Allen's entry. ”

“ Voss made his entry about twenty days after Patton's survey was executed, and before it was recorded; but the call for the survey necessarily includes the entry, if the survey has been made in pursuance of the entry. It must be admitted, that a survey, of itself, which had not acquired notoriety, is not a good call for an entry. But when the survey has been made conformable to the entry, and the entry can be sustained, as in the case of Patton, the call for the survey may support an entry. The boundaries for the survey must be shown, as has been done in the present case. ”

“ There is no repugnance in the calls of Allen's entry; all of them have been regarded in the survey directed by the court below. Complainants' survey and patent specify the quantity of land at 8500 acres; and the decree of the court below has given them that quantity. Yet they insist, that they are entitled to 10,000 acres. No case has been found, in which a complainant in equity against an older grant has been allowed more land than the quantity called for in his patent, actually surveyed under order of the court. ”

“ The complainants, who allege themselves to be the entire owners of the equity growing out of Voss's entry, sue the defendants for the whole, and not a moiety, and on the trial, not only show that they were purchasers of the equity, from Short, and that Breckenridge was their mere agent, to be rewarded with part of the land, but also produce the release of Breckenridge's heirs. Suppose, Breckenridge's heirs had been made parties, and no release by them executed, until the final decree, surely, no doubt could exist, as to the complainant's claim to a decree against defendants. ”

“ The balance of the tract claimed by the defendants, within the entry of Voss, must be relinquished to the complainants, as they hold the prior equity. The interfering claims will limit Voss to the calls of his entry, but the surveys are not protracted in such a manner as to enable the court satisfactoriy to designate the boundaries of the parties as fixed by this decision. Unless, therefore, the parties, from their local knowledge of the land, shall be able to lay down the interferences, it may be necessary to direct a survey. ”

“ Benjamin Roberts states, that he believes Eighteen Mile creek has been generally known, since the year 1780, and that he saw it in 1783; that Patton's creek is the first one of any notoriety, running into the Ohio, above the Eighteen Mile creek; and it was generally known by that name in the spring of the year 1783. He thinks that a good woodsman, by searching up the creek, agreeable to the calls of Patton's entry, could have found his beginning corner. Joseph Saunders states, that he knew Eighteen Mile creek, in June 1780 ”

“ In their amended bill, the complainants abandon the claim of title under Short's first deed, and say that it was cancelled, but that Short executed a new deed to them and Breckenridge-and that the interest of the heirs of Breckenridge has been acquired by them under decree. This bill, it is insisted, was introductory of a new and distinct title into the suit, or rather, it was the first assertion of any title. Previous to its being filed, there was no legal evidence of title in the complainants. They change their ground altogether in it. ”

“ Experience enables a person to judge with great accuracy how long marks have been made, from their general appearance. In May 1783, only six months after the entry, Saunders saw the marked tree. From these facts, and other circumstances of the case, the evidence established, at least prin a facie, that the tree called for was marked when the entry was made. If other trees were shown, bearing the same marks, at other places on the creek, it might create so great an uncertainty as to invalidate this entry ”

“ Entries were made, at an early day, by individuals who were more acquainted with the stratagems of savage warfare than the precision of language; they were better hunters than critics. Entries must be construed by the popular signification of the words used, rather than by the grammatical arrangement of sentences. ”

“ Complainants cannot avail themselves of any privilege of the infant heirs of Breckenridge, supposing that these had any, opposed to the running of the statute. An infant cannot transfer his protection in virtue of the saving clause of the act of limitations; it is personal. May's Heirs v. Slaughter, 3 A. K. Marsh. 505. In a joint estate to several persons, if the right of entry is tolled as to some, all are barred. ”

“ Ibid. 190. A survey, only a few days old, and not notorious, can only uphold an appendant entry, by being conformable to a certain and precise entry. Johnson v. Marshall, 4 Bibb 133. Patton's survey is not conformable to his entry.
But if the entry of Voss shall be deemed valid, how do the complainants show their title under the patent issued to Short thereon? The deed of December 10th, 1796, set forth in the original bill, is a nullity. When offered in evidence, the signature of the grantor was erased. ”

“ Now, suppose the papers that relate to the controversy with Breckenridge, not to manifest the complainants' equity, prior to the decree in their favor. That decree was made in 1822, within eighteen years after Howard's entry on the land, and within fourteen years after the entry of Trout, under Daniel and Hite. As we alleged an entire equity, surely, all the court can require of us is, to show, before the twenty years had run, the evidence of that equity. The papers filed as exhibits were read without objection, as was the deposition of Moreton. ”

“ The amended bill sets up a title, by deed, from Short to John O'Mealy, trustee for John Holmes and William Slater, and to H. Thompson, as trustee for Richard Caton, and to John Breckenridge. Between these derivations of title, in law, there is an essential variation, but not in equity. The equitable interests of the parties may be the same under both deeds. In the first bill, the complainants state, that, although the title was acquired, and is held by Holmes from Short, yet, by contracts with said Holmes, the estate is their joint property, and that Holmes held it for their use ”

“ But by the act of Kentucky, January 22d, 1814, the time allowed infants, after the removal of their disabilities, to make entry or bring suit, had elapsed, as to all the heirs of Breckenridge, before the deed to the complainants, conveying their right, and the filing of the amended bill. That act gives three years after arriving of age. See Clay's Heirs v. Miller, 3 T. B. Monr. 147. That one of the heirs became a feme covert, will not avail to save the right. Disabilities cannot be added to each other ”

“ The complainants say, that Short conveyed his land to John Holmes-not to the complainants and Breckenridge jointly. It is true, the deed of 1804 is filed with the original bill, but the title alleged is not derived through that deed. The whole tenor of the original bill is, that the complainants are entitled to all the lands of Short. They do not admit a participation of the title with them by any one. ”

“ On filing the amended bill, the parties agreed, that the suit should progress in the names of the parties to the record, and that no advantage should be taken, on account of the death of either of the parties since the pendency of the suit; and that the decree should be as valid as if the heirs of any such party were before the court. It was also agreed, that John Howard entered on the land in controversy, by virtue of his claim of 7945 1/2 acres, by his tenants, and within the claim of C. Clarke ”

“ The complainants further state, that conflicting entries have been made by different persons, since their location on the same land, and elder patents obtained; and they pray that a conveyance may be decreed to them, on the ground of their prior equity. ”

“ And the memorandum of the paper delivered to Breckenridge, dated 9th May 1795, which was addressed to Holmes, and signed by Moreton, as attorney for Short, and which respected the conveyance of 14,000 acres of land, could not have referred to an absolute sale of the land to Holmes, it would seem, as Moreton states in his deposition that he did not sell to him. ”

“ The circuit court has reasoned so well on the notoriety and identity of the entry, that it would seem a waste of time to repeat, in substance, what has been said by them. Indeed, it is believed, that before a court acquainted, with the rules of decision in Kentucky, a controversy on the validity of Voss's entry would never have been raised, but for the opinion of the court of appeals in the case of Meriwether v. ”

“ The descriptive calls of this entry are not shown to have been sufficient, at the time it was made, to lead a subsequent locator into the neighborhood of the land. The proof is not sufficient, to show, that the marked tree, claimed as the beginning of Patton's entry, was in fact marked before or at the time of making the entry. The legal right of the defendants should not be made to yield to a doubtful equity. The court will require the prior equity to be unquestionably established. Cleland's Heirs v. ”