Craig v. Radford

• Decision Date: 12 March 1818
• Citation: 3 Wheat. 594,16 U.S. 594,4 L.Ed. 467
• Parties: CRAIG et al. v. RADFORD
• Court: U.S. Supreme Court

16 U.S. 594

3 Wheat. 594

4 L.Ed. 467

CRAIG et al. v. RADFORD.

March 12, 1818

THIS cause was argued at the last term by Mr. M. D. Hardin, and Mr. Talbot, for the appellant, and by Mr. B. Hardin, for the respondent.

March 12th.

Mr. Justice WASHINGTON delivered the opinion of the court.

This is an appeal from a decree of the circuit court for the district of Kentucky, made in a suit in chancery, instituted by the appellee against the appellants, whereby the latter were decreed to convey to the former certain parts of a tract of land, granted to them by the commonwealth of Virginia, to which the appellee claimed title, under a junior patent, founded on a prior warrant and survey.

The warrant to William Sutherland, (under whom the appellee claims,) bears date the 24th of January, 1774, and was issued by the governor of Virginia, by virtue of the proclamation of the king of Great Britain, of 1763. Under this warrant, one thousand acres of land, lying in Fincastle county, on the south side of the Ohio river, was surveyed on the 4th day of May, 1774, by Hancock Taylor, deputy surveyor of that county, and a grant issued for the same, by the commonwealth of Virginia, to the said William Sutherland, bearing, date the 5th of August 1788. The appellee derives his title as devisee under the will of his father, William Radford, to whom the said tract of land was conveyed, by William Sutherland, on the 13th of February 1799.

The appellants claim parts of the aforesaid tract of land, under entries made upon treasury warrants, in the year, 1780, which were surveyed in 1785, and patented prior to the 26th of May, 1788.

It is admitted by the parties, 1. That William Sutherland was a native subject of the king of Great Britain, and that he left Virginia, prior to the year 1776, and has never since returned to the United States. 2dly. That Hancock Taylor was killed by the Indians in 1774, and that he never did return the surveys made by him to the office of Preston, the principal surveyor of Fincastle county, but that A. Hemptonstrall one of the company, took possession of his field notes, after his death, and lodged them in Preston's office; and that it was Taylor's usual practice to mark all the corners of his surveys.

The correctness of the decree made in this cause is objected to on various grounds.

1st. Because it does not appear that Hancock Taylor had in his possession, or under his control, a warrant, authorizing him to execute this survey for William Sutherland.

2d. Because there is not only an absence of all evidence to prove that the survey, for Sutherland, was made and completed on the ground, but that it appears, from the evidence of Hemptonstrall, that no such survey was actually made. This witness states, that he attended Hancock Taylor; on this survey as a marker, and sometimes as a chain carrier. He proves the beginning corner, and the five first lines of the survey ending at four chesnut trees, the mark of which lines were plainly discernable when this tract was surveyed under an order of the circuit court made in this cause. But he adds, that the subsequent lines of the survey were not run; and the surveyor who executed the order of the circuit court reports, that he met with no marked line, or corner trees, after he left the four chesnuts.

3d. It is objected, in the third place, that the survey not having been completed by the deputy surveyor, the court ought to infer that the lines actually run were merely experimental; and, in such a case, it is contended, that the principal surveyor could not make, and certify a plat of the survey on which a grant could legally be founded.

It appears to the court, that these objections were fully examined and overruled in the case of Taylor and Quarles v. Brown, 5 Cranch,...