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OF THE

Supreme Court of the United States.

FEBRUARY TERM, 1822.

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A warrant and survey authorize the proprietor of them to demand the legal title, but do not, in themselves, constitute a legal title; until the consummation of the title by a grant, the person who acquires an equity holds a right, subject to examination.

When the register of the land-office of Virginia, had, by mistake, given a warrant for military services in the continental line, on a certificate authorizing a warrant for services in the state line, and in recording it, pursued the certificate, and not the warrant, it was held that this court could not support a prior entry and survey, on a warrant thus issued by mistake, against a senior patent. Where the plaintiffs seek to set aside the legal title, because they have the superior equity, it is consistent with the principles of the court to rebut this equity by any circumstances which may im; pair it; and the legal title cannot be made to yield to an equity founded on the mistake of a ministerial officer.

THIS cause was argumitted to be reported
HIS cause was argued and determined at

2'] *Mr. Justice Todd delivered the opinion of the court:

and survey, and obtained a patent therefor in February, 1808.

John Neville made an entry on the same land in May in, 1806, on a military land warrant, for services, in the Virginia continental line; and his heirs, the respondents, obtained a patent therefor on the 30th of April, 1807.

They have brought an ejectment against the heirs of Justus Miller, who having, as they say, the elder equitable, though the junior legal title, have filed this bill to enjoin proceedings at law, and compel Neville's heirs to convey the legal title to them.

In their answer, Neville's heirs assert that Thomas Powell never served in the Virginia continental *line, but that his service was [*3 performed in the state line, and that the certificate of the governor and council, on which the warrant was issued, was expressed to be given for services in the state line, so that the warrant issued fraudulently, or by mistake. They fint her that as tire ficers further insist, that as the officers of the state

trict reserved for the continental line, the plaintiffs ought not to be permitted to avail themselves of a title founded in mistake, to defeat their legal title.

On the 29th of May, 1783, Seymour Powell, heir of Thomas Powell, obtained a military The testimony taken in the cause, shows that land warrant from the register's office in Vir- the records of the office of the executive counginia, No. 679, for 2,663 % acres of land "due cil of Virginia have been examined, and that in consideration of services for three years, as no certificate has ever been granted to Seymour a lieutenant of the Virginia continental line, Powell, as the heir of Thomas Powell, for agreeably to a certificate from the governor services in the Virginia continental line, but and council, received into the land-office." A that a certificate was granted to him for milipart of this warrant was entered in the military services for three years in the state line. tary district reserved for the officers and soldiers of the Virginia continental line, on the 16th of June, 1795; and, on the 30th of October, 1796, 789 acres, part thereof was surveyed in the name of the said Seymour Powell, which survey was on the 1st of March, 1797, recorded in the office of the surveyor-general. On the 10th of July, 1800, Justus Miller purchased this land, and took an assignment of the entry

Note.-Letters patent for conveying real estate may be set aside in equity, if obtained by fraud. Atty- Gen. v. Vernon, 1 Vern. 277; Jackson v. Lawton, 10 John. R. 25, 26; Jackson v. Hart, 12 John. R. 77; 2 Bl. Com. 348.

Where a patent for lands is granted by the general government, the court may go behind the patent, on allegations of fraud in the patentee in obtaining the patent, and may examine into the

In the land-office, too, records are to be preserved of all the warrants which issue, and of the certificates on which they issue. This office also has been searched, and no certificate is found of any military service rendered by Thomas Powell, in the Virginia continental line, nor is there on record any warrant for such service; but there is a certificate given to Seymour Powell, for his military service as a equities of other persons entitled or claiming to be entitled to the patent, and may set aside the same if fraudulently obtained. Brush v. Ware, 15 Pet. 93; Boldly v. Taylor, 5 Cranch, 196: Polk v. Wendell, 5 Cranch, 93; 5 Wheat, 293; Hoffnagle v. Anderson, post, 213; 2 N. Y. Rev. St. 578, s. 12: The People v. Clark, 19 Barb. 120; N. Y. Code of Prac. s. 1957.

lieutenant in the state line; and a warrant on | wise."
record for those services, bearing the same date
and number with that on which the land now
in controversy was entered.

There is no proof, and no reason to believe, that Thomas Powell ever performed any mili4*] tary service *in the Virginia line on continental establishment.

It is, then, apparent that the register of the land-office has, by mistake, given a warrant for military services in the continental line, on a certificate authorizing a warrant for service in the state line; and that, in recording it, he has pursued the certificate, and not the warrant.

The question is, can this court support a prior entry and survey, on a warrant thus issued by mistake, against a senior patent?

It has been urged, on the part of the appellants, that the title of Thomas Powell, for services in the state line, is precisely to the same quantity of land as if those services had been rendered in the continental line; his claim on

the state of Virginia is the same. That, had the warrant been properly issued, it might have been satisfied in the district set apart for the officers and soldiers of the state line, which district is in the state of Kentucky, and can no longer be appropriated by the holders of warrants for military services in the Virginia state line. Thus the rights under Powell are sacrificed, without any fault of his, in consequence of a mistake committed by the register of the land-office. They say that they are purchasers, without notice, of a title apparently good, and ought not to be affected by the mistake of a public officer. They insist that in the hands of a purchaser, a warrant ought to be liable to no objection founded on circumstances anterior to its date.

5*] *There is great force in these arguments; and, if the military district had remained a part of Virginia until Mr. Powell's warrant was entered, they would, perhaps, be unanswerable. But, in 1784, this district, with all the territory claimed by Virginia north-west of the Ohio, was ceded to the United States, with a reservation in favor of the legal bounties of the Virginia troops on continental establishment only. There is no reservation whatever in favor of the bounties in land, to the state troops. But provision for them was made elsewhere.

After this cession, no title could be acquired under Virginia, which was not included within the reservations. The same principle was asserted by this court in the case of Polk's Lessee v. Wendell,' and is, we think, too clear to be controverted. The great difficulty in this case consists in the admission of any testimony whatever, which calls into question the validity of a warrant issued by the officer to whom that duty is assigned by law. In examining this question, the distinction between an act which is judicial, and one which is merely ministerial, must be regarded. The register of the landoffice is not at liberty to examine testimony, and to exercise his own judgment respecting the right of an applicant for a military land warrant. He was originally directed to grant warrants to the officers or soldiers "producing to him a certificate of their claims respectively from the Commissioner of War, and not other

1.-5 Wheat. Rep. 293.

When the office of Commissioner of War was put down, this duty devolved [*6 on the executive department, whose certificate was as obligatory on the register, as that of the Commissioner of War had been. The question of right, then, was tried before the executive council, and the register is a mere ministerial officer carrying the judgment of the executive into execution by issuing his warrant in pursuance of their certificate. This certificate is filed and preserved in the office as the document on which the warrant issued. It is as much a part of the record as the warrant itself.

A warrant and survey authorize the proprietor of them to demand the legal title, but do not, in themselves, constitute a legal title. Until the consummation of the title by a grant, the person who acquires an equity holds a right subject to examination. The validity of every document is then open to examination, whatever the law may be after the emanation of a patent.

If this be correct, and the objection to the warrant delivered to Mr. Powell can be considered, he is shown, by the clearest testimony, to be the holder of a warrant issued by mistake. As an officer in the state line, he was not entitled to a warrant which could appropriate lands lying in the military district

north-west of the Ohio.

As the plaintiffs are endeavoring to set aside the legal title, because they have the superior equity, we think it consistent with the principles of the court to rebut this equity by any circumstances which may impair it.

*The case is a hard one on the part of [*7 the plaintiffs; and they may have strong claims on the liberality and justice of the United States, or of Virginia; but we do not think the legal title can be made to yield to an equity founded in the mistake of a ministerial

officer.

Decree affirmed, each party paying his own costs.

[Local Law.]

NEWSON v. PRYOR'S LESSEE.

Where plats are returned and grants made, withwhich has been adopted, in order to settle the conout an actual survey, the rule of construction flicting claims of different parties, is, that the most material, and most certain calls shall control those which are less material and less certain. A call for a natural object, as a river, a known stream, a spring, or even a marked line, shall control both course and distance.

There is no distinction between a call to stop at a river, and a call to cross a river.

Where a grant was made for 5,000 acres of land "lying on both sides of the two main forks of Duck River, beginning, etc., and running thence west 894 poles, to a white oak, thence south 894 poles, to a stake crossing the river, thence east 894 poles to a stake, thence north 894 poles to the beginning, crossing the south fork;" it was held, that it must be surveyed so as to extend the second line of the grant such a distance on the course called for as would cross Duck River to the opposite bank.

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HIS cause was argued by Mr. Law1 for, result from this circumstance. The course and 8. by Mr. distance patent will satisfy person claiming under it, and seldom interfere with the rights of others. But in a country where

for the defendant in error.

Mr. Chief Justice Marshall delivered the we find considerable water-courses and mounopinion of the court:

This is a writ of error to a judgment given in the Circuit Court for the District of West Tennessee, in an ejectment brought by the defendants in error against the present plaintiff. The plaintiffs in the court below claimed under the elder patent, to the validity of which there was no objection. Of consequence, the only question in the cause was, whether the lines of their grant comprehended the land in contest. The grant was made for 5,000 acres of land, "lying on both sides of the two main forks of Duck River, beginning, etc., and running thence west 894 poles, to a white oak tree; south, 894 poles, to a stake crossing the river; thence east, 894 poles to a stake; thence north, 894 poles, to the beginning, crossing the south fork." It is apparent that a survey was not made in fact, but that, after marking a beginning corner, the surveyor made out and returned a plat, which he supposed would comprehend the land intended to be acquired. It is now too late to question the validity of grants made on such plats and certificates of survey. From the extraordinary circumstances of the country, they were frequent, and, in consequence of those circumstances, have received the sanction 9*] of courts. An immense number of titles, believed to be perfectly secure, depend upon the maintenance of such grants. The extent of the mischief which would result from unsettling the principle, cannot be perceived; and is certainly too great now to be encountered. The patent, therefore, must be considered as if the survey had been actually made.

In consequence of returning plats where no actual surveys had been made, and where the country had been very imperfectly explored, the description contained in the patent often varies materially from the actual appearances of the land intended to be acquired. Natural objects are called for in places where thy are not to be found; and the same objects are found where the surveyor did not suppose them to be. In a country of a tolerably regular surface, no considerable inconvenience will

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NOTE. See note to McIver's Lessee v. Walker, 9 Cranch, 173.

Course and distance yield to monuments, or natural objects, in determining boundaries of land. McIvor v. Walker, 5 Wheat. 444; Cleaveland v. Smith, 2 Story, C. C. 278; Chinoweth v. Haskall, 3 Pet. 92; Barclay v. Howell, 6 Pet. 198; Wakefield v. Ross, 5 Mas. 16: Robinson v. Moore, 4 McLean, 279; McPherson v. Foster, 4 Wash. C. C. 45; Granger v. Swart, 1 Woolv. 88; White v. Williams, 48 N. Y. 344; Belden v. Seymour, 8 Conn. 19; 8 Conn. 304 ; Chatham v. Branard, 11 Conn. 60; Higley v. Bidwell, 9 Conn. 447: Howe v. Bass, 2 Mass. 380; Pernam v. Wead, 6 Mass. 131; Gerrish v. Bearce, 11 Mass. 193: Aiken v. Sanford, 5 Mass. 494; Davis v. Rainsford, 17 Mass. 207; Mayhew v. Norton, 17 Pock. 357; Frost v. Spaulding, 19 Pick.

tains there must be more difficulty. The surveyor calls for some known object, but totally miscalculates its courses, distances, or both, from some given point which he has made the beginning of his survey; and there is a variance in the different calls of his survey, and of the patent founded on it. As in this case, the second line is to run south 894 poles, to a stake, crossing the river. This distance will not reach the river; and must be continued to 1,222 poles to cross the river. The distance must be disregarded, and this line so extended *as to [*10 cross the river, or the distance must control the call for crossing the river. These difficulties have occurred frequently, and must be expected to occur frequently where grants are made without an actual survey. Some general rule of construction must be adopted; and that rule must be observed, or the conflicting claims of individuals must remain forever uncertain.

The courts of Tennessee, and all other courts by whom causes of this description have been decided, have adopted the same principle, and have adhered to it. It is, that the most material and most certain calls shall control those which are less material and less certain. A call for a natural object, as a river, a known stream, a spring, or even a marked tree, shall control both course and distance. These decisions are founded on two considerations. Generally speaking, it is the particular intention of the purchaser to acquire the land lying on the stream called for, as being more valuable than other land; and, in every case where a natural object is mentioned, it designates the land surveyed had there been an actual survey, much more certainly than course and distance In this case, for example, can designate it. the surveyor says that he has run south 894 poles, to a stake crossing the river. Now, it is much more probable that he should err in the

distance, than in the fact of crossing the river. The conclusion, therefore, had an actual survey been made, would be, that the line did cross the river.

The general effect of this principle undoubtedly is, that the purchaser acquires more land than is expressed in his grant, and more [*11 than he has paid for. Where this has been thought an object worthy of legislative attention, provision has been made for it. Courts cannot now shake a principle so long settled, and so generally acknowledged.

445; Dawes v. Prentice, 16 Pick. 435; Flagg v. Thurston, 13 Pick. 145.

If there be nothing to control the course and distance, the line is run by the needle.

Jackson v. Staats, 2 John. Cas. 350; Trammell v. Nelson, 2 Harr. & McH. 4; Penam v. Wead, 6 Mass. 131; Howe v. Bass, 2 Mass. 380; 4 Kent's Comm. 466; Higley v. Bidwell, 9 Conn. 447; Benedict v. Gaylord, 11 Mass. 335; Doe v. Porter, 3 Atk. 18, 57; White v. Gay, 9 N. H. R. 126; Mc Ivor v. Walker, 9 Cranch, 173; Preston v. Bawmar, 6 Wheat. 580; Colclough v. Richardson, 1 McCord, 167; Welch v. Philips, 1 McCord, 215; Brooks v. Tyler, 2 Vt. 348; Clark v. Wethey, 19 Wend. 320; Wyckoff v. Stephenson, 14 Ohio, 13, 15, 17; Schultz v. Young, 3 Ired. N. C. 385.

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