Bodley and Others v. Taylor

• Decision Date: 01 February 1809
• Parties: BODLEY AND OTHERS v. TAYLOR
• Court: U.S. Supreme Court

9 U.S. 191

5 Cranch 191

3 L.Ed. 75

BODLEY AND OTHERS v. TAYLOR.

February Term, 1809

ERROR to the district court of the United States, for the district of Kentucky, in a suit in chancery.

Thomas Bodley, James Hughes, Robert Poague and Robert Campbell, citizens of Kentucky, brought their bill in chancery against John Taylor, a citizen of Virginia, in the state court for the district of Washington, from whence it was afterwards, by consent, removed into the federal court for the district of Kentucky.

The bill states that on the 17th of October, 1783, Henry Crutcher and John Tibbs made the following entry with the county surveyor, viz. 'Henry Crutcher and John Tibbs enters ten thousand acres of land on a treasury warrant No. 18,747. as tenants in common; Beginning at a large black ash and small buckeye marked thus (I. T.) on the side of a buffalo-road leading from the lower blue licks a north-east course, and about seven miles north-east by east from the said blue licks, a corner of an entry of twenty thousand acres made in the name of John Tibbs, John Clarke, John Sharpe, David Blanchard and Alexander M'Clain, running thence with the said Tibbs & Co.'s line due east sixteen

hundred poles, thence south one thousand poles, thence west sixteen hundred poles, thence north one thousand poles to the beginning for quantity.' That the same having been surveyed, Crutcher assigned his half to Robert Rutherford, to whom and Willoughby Tibbs, (the heir of John Tibbs,) a patent was afterwards granted. Tibbs sold his right to Peyton, who sold a moiety thereof to Magill. Rutherford, Peyton and Magill, sold and conveyed the whole for a valuable consideration to the plaintiffs, by deed dated February 15, 1799.

That the defendant Taylor having, on the 22d of May, 1780, made the following entry with the county surveyor, viz. 'John Taylor enters three thousand acres of land upon a treasury warrant adjoining John Walden, on the north side of Johnson's fork of licking, on the east and south-east sides, running up and down said creek, and north for quantity, to include an improvement made by Jacob Drennon and Simon Butler,' has caused the same to be surveyed expressly contrary to location, and so as to interfere with your orator's claim aforesaid; and having obtained a patent older than that obtained by the said Rutherford and Tibbs, notwithstanding he knows his claim is surveyed contrary to location, and although requested, he refuses to convey to the plaintiffs. The prayer of the bill was, that the defendant should convey to the plaintiffs so much of the land included in the defendant's patent as interfered with the plaintiffs' patent; and for general relief.

The defendant by his answer denied the jurisdiction of the court, as a court of equity, because the plaintiffs stated in their bill no equitable ground of relief. He avers his ignorance of the plaintiffs' title, and that he did not know until within a few days then past, the mode in which his own location or survey was made. That he had employed one Ambrose Walden to cause them to be located. He denies all fraud in making his survey. He avers that he was a bon a fide purchaser for a full and

valuable consideration, prior to the title claimed by the plaintiffs. That no caveat was entered against his survey. That he regularly obtained his patent. That a considerable part of his land has been cleared and settled. That 20 years have elapsed since the entry. That the land-marks and geographical objects which were at that time visible, have been changed, altered or destroyed by time.

He contends that if he has surveyed and obtained a grant for lands not described in his entry, and which he had no right to survey, he ought not to be compelled to convey them to the plaintiffs, unless they will convey to him what he had a right to survey, and which they have surveyed, and for which they have obtained a patent. That the plaintiffs' entries cover almost all the lands which the defendant could have surveyed under his entry. That by the plaintiffs' delay the defendant has lost the power to locate his warrants elsewhere, if they are improperly located, which he denies.

He states that his entry was dependent on John Walden's, which depended upon Ambrose Walden's, which depended upon Jacob Johnson's. That Jacob Johnson's was first surveyed by the surveyor who surveyed the entries of the Waldens, and of the defendant. That although Jacob Johnson's survey was afterwards suppressed, yet that did not alter the actual location of the two Waldens and of the defendant. That his survey is correctly made according to the laws of Virginia when it was made, and while Kentucky was part of Virginia, and that by the same laws, and the compact between Virginia and Kentucky, at the time of separation, his prior patent, founded upon a prior equity, and obtained without fraud, cannot be vacated.

A survey and connected plat was made under an order of the court, and according to the directions of each party.

A jury came, according to the custom of Kentucky

in chancery suits, and being sworn to inquire of such facts as should be submitted to them, found the following facts, viz. That the place designated on the connected plat by the letter A. is the place called for as the beginning corner of John Tibbs & Co.'s entry of 20,000 acres, dated July 31, 1783, on the buffalo-road leading from the lower blue licks to Limestone, which corner is also the beginning of an entry of 10,000 acres made the 17th of October, 1783, in the names of Henry Crutcher and John Tibbs, under which the complainants claim; copies of which entries are annexed to their verdict.

The following facts were agreed by the parties, viz.

2. That the entry of 20,000 acres in the name of John Tibbs and others, and a survey made thereon, for 16,000 acres on the 8th of June, 1796, were assigned to the complainant Bodley, who obtained a patent therefor in his own name dated 21st of April, 1798, and afterwards conveyed one undivided morety thereof to the complainant Hughes, by deed duly recorded.

3. That the entry of 10,000 acres was made on the 17th of October, 1783, in the name of Henry Crutcher and John Tibbs, surveyed 14th March, 1784, registered 31st December, 1784, and patented in the names of Robert Rutherford, assignee of Henry Crutcher, and Willoughby Tibbs, heir at law of John Tibbs, deceased, 26th August, 1790, was purchased by Bodley 26th September, 1798, and conveyed to all the complainants jointly by deed duly recorded, dated the 15th of February, 1799. That the defendant's survey of 3,000 acres was made on the 1st of September, 1785, registered the 1st of November, 1785, and a patent obtained therefor dated 21st of November, 1786.

4. That the grants issued by the register of the Virginia land-office do not bear regular dates agreeably to the times the surveys were returned, but in

many instances the elder patent has issued on surveys returned several months after surveys on interfering claims were registered.

5. That the surveys of Jacob Johnson's settlement and pre-emption, as stated to have been surveyed in the defendant's first fact, (hereafter stated,) were made by the direction of Simon Kenton, his agent, who was also locator of the claims which call to adjoin the said Johnson's surveys, and were never admitted to record.

6. That Ambrose Walden's survey was made on the 29th of November, 1785, John Walden's the 27th of December, 1785, and Jacob Johnson's settlement and pre-emption, as represented on the connected plat by lines thus, (000,) was made on the 9th of April, 1789, registered and patents issued thereon to John Reed and Arthur Fox, assignee of Johnson, dated the 20th of February, 1793.

7. That more than one entry and survey has been made on almost all the good land in the state of Kentucky.

8. That the several claims, water-courses, improvements, objects and distances laid down on the connected plat, reported by the surveyor, are truly laid down and reported.

Facts for the defendant.

1. That the settlement and pre-emption of Peter Johnson, heir at law of Jacob Johnson, after being entered with the surveyor, were actually run out and surveyed as designated on the connected plat by the letters and figures M. N. 2 & 3, that the said surveys were made by a surveyor legally qualified to make the same, prior to the dates of the surveys made for Ambrose Walden, John Walden, and the defendant.

2. That the land surveyed for the said Peter

Johnson, upon the said right of pre-emption, there are now 300 acres of cleared land, upon the said survey of Ambrose Walden 200 acres, upon John Walden's 400, and upon the defendant's 300 acres of cleared land.

3. That on the 22d of May, 1780, the land on which the entries of Johnson, Ambrose Walden, John Walden and the defendant, were made, was uncultivated, and the country for fifty or sixty miles on all sides without an inhabitant, except Indians, by whom it was much infested, and only occasionally visited by hunters and land-jobbers.

4. That on the 22d of May, 1780, and prior thereto, there were many cabins, marked trees, hunting camps and improvements then plain and notorious on Johnson's fork, and the other branches of licking, of which there remain now no traces, and which are now wholly incapable of proof as to what was their exact position.

5. That since that time a great change has taken place in the appearance of the country generally round, and at the place where the defendant's entry lies. That the country is now thickly settled, and in high cultivation. That great changes have taken place in the names of streams, roads and other objects, and that few of those who frequented that part of this country in the year 1780, are now alive.

6. That the complainants, Bodley and Hughes, assignees of Tibbs & Co. are the proprietors of the 16,000 adjoining the 10,000 acres in the bill mentioned.

7. That the cabin represented on the connected...