Astor v. Wells. whole of Dorhman's estate, as if with the design which Dorhman had already manifested, of cutting Astor off *altogether. As is said in Tourville [*484 v. Nash, 3 P. Wms. 307, he should have filed his bill quia timet against Dorhman, and pursued his remedy upon the other quarter township, released by Astor, and whatever other property could be found. There is nothing in the case which shows that Dorhman had received the whole $5000 before notice to Wells, nor what part he had received. It lies upon Wells to make this appear clearly, for if any part remained unpaid, it might have been stopped, and the payment enjoined. It is said, "if the plaintiff be right, parties to a first and second sale stand as at common law." But this is not a case merely between purchasers at a first and second sale. To this point, the plaintiff is considered a creditor; and it stands as a case between à creditor and purchaser of the debtor. At common law, such a conveyance would be avoided. The statute of Elizabeth is in aid of the common law, extending the remedy to subsequent creditors, superadding the sanction of penalties. It declares "deeds made in fraud of creditors void." And although it inflicts penalties, still, in England, it is viewed as remedial, "made against frauds, for the public good, and to be taken by equity." Gooch's Case, 5 Co. 60 a; 1 Fonbl. Eq. 270, 282. Even if the doctrine of constructive, notice were admitted to be no longer a rule of equity, still this admission would only raise a dispute upon an abstract proposition, whether the notice we rely on be actual or constructive? It is, therefore, a disagreement as to the name. *Under what denomina[*485 tion have the law-writers classed it ? is the question. If actual, then we say, Wells had actual notice. If constructive, then he had only constructive notice. We have only to show Wells had such notice as the law charges him with, to avoid the danger of sanctioning fraud, and to close the avenues of injustice, and fraudulent speculation. According to the opposite argument, a suit pending, or a registry of a deed, are notice in fact. They are facts of record, and notice to all persons in the same community; but we must be permitted to disbelieve that every person has seen them in fact, and, therefore, knows what they contain. Yet every person is bound by this knowledge, because they are made public, and accessible to all: constructive knowledge or notice, being by the law charged upon the party, because he might have known; the law having done its part by making such public record, and declaring all persons bound by it, whether they know it or not. It is a well-established principle, that the defendant must unequivocally deny all notice, even though it be not charged, and every fact and circumstance from which it can be inferred, in order to be considered a bona fide purchaser. Frost v. Beekman, 1 Johns. Ch. 302; s. c. Ibid. 566; Murray v. Finster, 2 Ibid. 155. This the defendant, Wells, has not done. The case of Taylor v. McDonald's Heirs, 2 Bibb 420, is not analogous; as there the lands never were included in the county where the deed was recorded; and the question was upon the effect of the deed at law. *March 10th, 1819. JOHNSTON, Justice, delivered the opinion of [*486 the court. The questions in this case are partly of law, partly of fact. The bill charges the defendant with express notice of the complainant's previous mortgage, and with holding the land purchased under a secret trust for the legal representatives of Dorhman, the mortgagor. Both these facts Astor v. Wells. the answer denies; and as there is no evidence to sustain them, they must be put out of the case. The bill then proposes to affect the defendant, Wells, with constructive notice; and if it fails there, then to set aside the deed to Wells as absolutely void, under the express provision of a law of the state of Ohio. Obadiah Jennings, who drew the mortgage from Dorhman to Wells, was fully apprised of the existence of Astor's mortgage, and acted in concert with Dorhman, expressly to defeat Astor's prior lien, and give precedence to Wells. The advantage of which they proposed to avail themselves for this. purpose, was a supposed mistake committed by Astor as to the legal office for recording his deed. The land was originally comprised within the limits of Jefferson county. But before the recording of the deed, the county of Tuscarawas was taken off from Jefferson, and the land lay in that part of Jefferson which thus became Tuscarawas county. The law of Ohio requires that the recording shall take place in the county in which the`land lies. The first question is, was this a legal recording, under the laws of Ohio, so as to preserve the priority which dates gave to Astor? The office of *487] Jefferson *county was the legal office, at the time of executing the deed did it continue to be so, at the time of recording it? This can only be decided by considering the object of the law. It was to give notice to subsequent purchasers-to place at their command the means of investigation, to which, if they did not resort, they had only to blame their own indolence or folly. But no one in search of such information respecting lands situate in Tuscarawas county, would be expected to search the records of Jefferson, subsequent to the date of the separation. He would naturally refer to the records of the new county, to its origin, and from that time pursue his inquiries among the records of the county in which it was óriginally comprised. And therefore, we are of opinion, that the recording of Astor's deed was not sufficient, either to preserve its legai priority, or give it the equity resulting from constructive notice. But it is contended, that Jennings was the mutual agent of both mortgagor and mortgagee, in the creation of Wells's mortgage, and therefore, the notice to Jennings was notice to Wells. Here, again, the complainant's case is unsupported by the evidence. On the law, there could be no doubt, if the facts were such as the complainant contends. But it is positively denied, both by Wells and Jennings; and if Jennings was the agent of Dorhman only, his knowledge could produce no other effect on the rights of Wells, than if it had been concealed in the breast of Dorhman. And this leads to the final question in the case. As the deed really was "made" to defraud Astor, does that circumstance alone, under the laws *of Ohio, destroy its validity, without reference to the knowledge or *488] connivance of the mortgagee. And this again must be decided, by referring to the object of the law. The words of the statute would literally embrace the case. But who are the objects of the law? Not creditors only, but subsequent purchasers. And to give it such a construction as would expose a bond fide purchaser, without notice, to imposition, in order to protect creditors, could never comport with the intent of the law. Upon the whole, we are of opinion, that there is no error in the decree below, and that the same be affirmed, with costs. Decree affirmed, with costs. MCARTHUR V. BROWDER. Lund law of Ohio. The rule which prevails in Kentucky and Ohio as to land titles, is, that, at law, the patent is the foundation of title, and neither party can bring his entry before the court: but a junior patentee, claiming under an elder entry, may, in chancery, support his equitable title. A description which will identify the land, is all that is necessary to the validity of a grant: but the law requires that an entry should be made with such certainty, that subsequent purchasers may be enabled to locate the adjacent residuum. An entry for 1000 acres of land in Ohio, on Deer creek, "beginning where the upper line of Ralph Morgan's entry crosses the creek, running with Morgan's line, on each side of the creek, 400 . poles, *thence up the creek, 400 poles in a direct line, thence from each side of the given line with the upper line, at right angles with the side lines, for quantity:" held to be a valid entry. Distinction between amending and withdrawing an entry. [*489 APPEAL from the Circuit Court of Ohio. The bill in equity filed in this cause, by the appellant, McArthur, stated, that George Mathews, on the 19th of September 1799, made the following entry with the surveyor of the Virginia army lands: "No. 3717: 1799, September 19th. George Mathews, assignee, enters 1000 acres of land, on part of a military-warrant, No. 4795, on Deer creek, beginning where the upper line of Ralph Morgan's entry, No. 3665, crosses the creek, running with Morgan's line, on each side of the creek, 200 poles; thence up the creek 400 poles, on a direct line, thence from each side of the given line, with the upper line, at right angles with the side lines, for quantity." That afterwards, the entry of Ralph Morgan was withdrawn; and that, in consequence, George Mathews made the following entry: "No. 3717: 1801, October 26th. George Mathews, assignee, enters 1000 acres of land on. part of a military-warrant, No. 4795, on Deer creek, beginning at two elms on the south-west bank of the creek, upper corner to Henry Mossies' survey, No. 3925, running south 45° west, 120 poles, north 65° west, 172 poles, north 17° west, 320 poles, north 76° east, 485 poles, thence south 1° west, 292 poles, thence to the beginning." The bill charged, that the last entry was not intended as a new one; but only as an amendment or explanation of the first. This last entry was surveyed the 7th of *October, 1807 and upon an assignment to the complainant, the land embraced in the survey was patented to the [*490 plaintiff, the 6th of July 1806. The title of Browder, the respondent, was stated in the bill as follows: That on the 20th of July 1798, Nathaniel Randolph made the following entry : "No. 3310 July 20th, 1798. Nathaniel Randolph, assignee, enters 300 acres of land on three military-warrants, Nos. 4165, 4250 and 4664, on the lower side of Deer creek, beginning at a walnut and two elms, cornered five poles from the bank of the creek, running south 61° west, 200 poles to two white oaks, and two hickories, thence north 7° west, 234 poles, thence north 61° east, 200 poles, thence to the beginning." That the last entry was surveyed for Randolph, and the oldest patent obtained by him, which he conveyed to Browder, who has recovered upon an ejectment. By the answer and exhibits, it appeared, that Randolph's survey was made the 1st of August 1798; that a patent was granted to Randolph, the 29th McArthur v. Browder. of September 1800, who conveyed to the respondent. The respondent, Browder, having brought an action of ejectment, recovered the possession of the land in question; and the appellant, McArthur, filed this bill in equity, praying for an injunction; a conveyance of so much of the land claimed by the respondent, as interfered with his claim; and for general relief. The bill was dismissed by the circuit court, and the cause brought by appeal to this court. *491] March 10th, 1819. This cause was argued by Scott and *Brush, for the appellant, and by the Attorney-General and Doddridge, for the respondent. March 12th. MARSHALL, Ch. J., delivered the opinion of the court.-In this case, the appellee claims under the elder grant, founded on the elder entry. Consequently, if his entry be valid, the bill of the appellant cannot be sustained. But the entry is so defective in description, that it was necessarily abandoned; and the appèllee relies on his patent; anterior to the emanation of which, the appellant contends, that the land was appropriated by this entry. The validity of this entry also is denied. But before we examine the objections made to it, we must consider those which have been urged against the jurisdiction of this court as a court of equity. The rule which prevails both in Kentucky and Ohio is, that, at law, the patent is the foundation of title, and that neither party can bring his entry before the court. In consequence of this rule, it has been also well settled, that the junior patentee, claiming under an elder entry, may, in chancery, support his equitable title, and obtain a decree for a conveyance of so much of the land as, under his entry, he may be entitled to. But the general principle is supposed to be inapplicable to this case, because the words of the entry are introduced into the grant; and if they were too vague to appropriate the land, when used in the entry, they must be too vague to appropriate it, when used in the grant, which is a *question triable at law, and which was tried in the ejectment brought by the appellee for the land. *492] Were the fact precisely as stated, it could not support the argument which is founded on it. When lands are granted, a description which will identify them is all that is necessary to the validity of the grant. But identity is not all that is necessary to the validity of an entry. The law requires that locations should be made with such certainty, that subsequent purchasers may be enabled to locate the adjacent residuum. All grants are founded on surveys; they recite the surveys, and all that is required in an ejectment is, to prove that. the land claimed is that which was surveyed. But more is required in a contest respecting an entry; nothing is more common than for courts to declare en entry void for uncertainty, notwithstanding the clearest proof that the land claimed, and that located, are the same. There is then nothing in the resemblance between the words of the grant and of the entry, to distinguish this from other cases, in which the party claiming under the first good entry, comes into chancery to obtain a conveyance of lands held under a senior patent. We proceed, then, to examine the entry under which the appellant claims. That entry is made for 1000 acres of land on Deer creek, "beginning where the upper line of Ralph Morgan's McArthur v. Browder. entry crosses the creek, running with Morgan's line on each side of the creek, 200 poles, thence up the creek 400 poles, on a direct line, thence from each side of the *given line, with the upper line at right angles with the side lines, for quantity." [*493 That entries, which contain such descriptive words as clearly to designate the place where the land lies, shall, with respect to their more particular locative calls, be supported, if they can, on fair construction, be supported, is a principle which pervades the whole of that curious and intricate fabric, which has been erected by the decisions on land titles in Kentucky, and has been taken as a model for those in the military district of Ohio. If a subsequent locator, brought to the spot where the lands lie, with the location in his hand, might, by the application of the rules which the courts have established, know how to place the entry, so as to enable himself to locate the adjacent residuum, the entry must be sustained. In this case, it is admitted, that the beginning is described with sufficient certainty. The place where the upper line of Ralph Morgan's entry crosses Deer creek, is ascertained. From that beginning, the entry calls to run “with Ralph Morgan's line, on each side of the creek, 200 poles." It is said to be entirely uncertain, whether this line is to be 200 poles on each side of the creek, so as to amount to 400 poles, or to be only a line of 200 poles altogether. Did this ambiguity really exist in the words themselves, it is entirely removed by the other parts of the location. The entry is made for 1000 acres of land, and cannot on any construction, be made to exceed 500 acres, unless the base line be 400 poles. We have then a given line of 400 poles. The entry then proceeds, *" thence up the creek 400 poles, on a direct line.". The plain meaning of these words is, that the land [*494 lies up the creek, so that a direct line of 400 poles will reach its upper boundary. If the location stopped here, adding only "for quantity," the decisions of Kentucky would establish it as a good entry for a square, formed on the upper side of the base line of 400 poles, which would contain 1000 acres of land. But the entry proceeds, "thence from each side of the given line, with the upper line at right angles with the side lines, for quantity." This part of the description has been said to produce uncertainty, because two lines are given, and a subsequent locator could not tell to which reference was made. If it would make any difference whether the base line, or the line up the creek, was taken as the given line, this might produce some difficulty; but if the entry must cover precisely the same ground, whether the one or the other be taken as the given line, it can make none. Let the base line be considered as the given line. It is plain, that the words "from each side” must mean from each end, because the land is to lie up the creek; whereas, if you proceed from each side, it would lie partly down the creek. The line, too, which is to give the quantity, with the side lines, is the upper line, and that is removed from the base line, the distance necessary to inclua he quantity of land required. As this quantity is to be inclosed from the whole entry taken together, within lines which form a square, the entry must be understood to require, that the side lines should be drawn from the ends of the base line, and the inaccuracy of the expression could not mis[*495 But the entry is understood to refer, as the given line, to that which is lead. |