Johnson v. Brown
| Decision Date | 19 October 1802 |
| Citation | 7 Va. 259 |
| Parties | Johnson v. Brown |
| Court | Virginia Supreme Court |
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This was an appeal from a decree of the High Court of Chancery. The bill states, that, on the 20th of November, 1749, William Davies, for his father Robert Davies, entered with Thomas Lewis, Surveyor of Augusta county, for 300 acres of land between his father's land and the widow Bell's. That on the 29th of August, 1753, Robert Davies sold the entry to J. Phillips; from whose son and heir, the plaintiff purchased it on the 23d of May, 1789. And on the 12th of October, 1789, William Davies also assigned it to the plaintiff, for the consideration of 41. 10s. That the entry being surveyed, and the plat returned into the Land Office, a patent issued thereon June 9th, 1792. That John Brown, in 1753, entered with the same Surveyor, 230 acres of land, comprehending 190 acres of that above mentioned; and, in 1783, a patent for the same was obtained by his heir or devisee, from whom the bill prays a conveyance. The answer says, that two surveys cannot be made on one entry; that, if the plaintiff's survey had pursued the entry, it must have gone through patented lands: that the entry is too vague: That the plaintiff's survey was forfeited, and could not regularly have been surveyed, when it was.
There are several depositions with regard to the plaintiff's purchase; and the deposition of Poage a Surveyor, stating that he had run certain lines; and annexing a plat comprehending the lands in controversy.
The Court of Chancery decreed in favour of Brown; and thereupon, Johnson appealed to this Court.
Decree affirmed, with costs.
Randolph, for the appellant.
The government could not have defeated Johnson's right because, by the act of 1748, all entries were to stand good until notice was given by the Surveyor, on two Court days. Old edit. laws 220, § 20, [c. 19, § 8, 6 Stat. Larg. 36]. But Brown cannot be in a better situation than the government itself. The vagueness of the entry is not material. For, the officer was satisfied, and all the entries of that day were as vague. The survey agrees with the entry, for a line run from it will touch the widow Bell's, as the plot exhibited by the appellee shews: But, the plot itself is not authentic, as it was not made under any order of Court.
Nicholas, contra.
Having got the first patent, we have the legal right, and the plaintiff shews no equitable title to overthrow it, as there is no charge of any fraud in obtaining it, which there must be, in order to affect the legal title. White v. Jones, 1 Wash. (VA) 116. We had no notice of any prior entry, and therefore, our conduct could not be fraudulent. But the entry is too vague, Hunter v. Hall, 1 Call, 206; and it is not material that it was under the old law.
The plot is evidence; for it is proved by the Surveyor; and was not excepted to, in the Court of Chancery. Therefore, no objection to it should be allowed at this time. But, if the plot be received, then it is manifest that Johnson did not pursue the entry in his survey; and, therefore, the survey itself is void as against us. But the entry was abandoned; for the lapse of time was so great, that a relinquishment ought to be presumed. Picket v. Dowdel, 2 Wash. (VA) 106. Besides, the evidence proves, that Davies had forgot that he ever made the entry.
Call, on the same side. The entry was too vague, to operate against a subsequent locator, without actual notice: And it will not be material, if no act of Assembly, at that day, required as much precision, as the present laws do. For, the act of 1779, [10 Stat. Larg. 57,] only enacted into a statute, what was a law of equity before, as far as respected a subsequent locator; because it was a principle of general justice, that a vague and indefinite entry, from which no particular portion of land could be ascertained, ought not to prevent, or disappoint, a future locator: Otherwise, every man who wished to make an entry, must have consulted every prior locator, before he could have proceeded; which would have been an intolerable hardship.
It is under this view, therefore, that we say the entry is void; and not that it is ipso facto nullified against the public, or any other person. For, as against the public, the act of 1748, (old edit. law 220,) may have full operation, and yet be void against a subsequent locator, without knowledge of the particular place entered for.
This doctrine is attended with no inconvenience; because it was in the power of the first locator to have been more precise, or to have surveyed at an earlier day: Whereas, according to the other idea, an immense space of country might have lain unappropriated half a century, until some prior locator was satisfied.
Hence it appears, that where there were conflicting entries, precision was as necessary before the act of 1779, as afterwards.
Let us examine, then, what has been held an insufficient entry since that act.
In Hunter v. Hall, 1 Call 206, an entry of 400 acres on the south branch, adjoining Lord Fairfax's land, at the mouth of Mill Creek, was held insufficient; and yet that entry was fully as certain, as this.
Field v. Culbreath, 2 Call 547, was not like this: 1. Because it was for all the vacant land between certain lines; whereas, this is only for 300 acres in an immense space. 2. Because the survey, there, had reduced the location to certainty before the caveat. 3. Because the survey was upon the land described in the entry, and two of the lines actually agreed.
Upon the ground of precision, therefore, the entry, as against Brown, who was an innocent man, is clearly void, on account of the vagueness of it.
But the survey does not agree with the entry:
For, the land surveyed does not lie between those of Robert Davies and the widow Bell; but, it lies behind those of Robert Davies.
When a man describes a tract of land, as lying between two others, he means, that the body of it, at least, actually lies between them. A mere corner, or mathematical point, will not satisfy the description. But, in the present case, however, not even a mathematical point lies between them; for, the land surveyed is not comprehended between those described in the entry, but lies behind one, and recedes from both. So that, in the language of one of the Judges, [Lyons] in Hunter v. Hall, it may be said, that Davies, when he entered, never expected to find the land he entered for, at the place which has been surveyed.
But the entry was abandoned:
It was made in 1749, and no survey of the land took place until 1790, upwards of forty years. Therefore, according to Picket v. Dowdel, 2 Wash. (VA) 106, it was utterly void against a subsequent locator. For, the rules there laid down, expressly apply to the present case: Because, the warrant of Lord Fairfax, was like that of the government, and he was as much bound by it. Of course, if the new grant could supersede the old entry and survey there, much more will it supersede a mere entry here.
But our case is stronger; because there is actual evidence here of the abandonment. For, Perry says that Davies appeared to have no recollection of it; which is a clear proof of his having long since relinquished it; and Moffet says, that Phillips offered to give it for nothing, into a bargain which they were treating about: A clear proof, that he also had abandoned it.
But, by analogy to the three years after the patent before seating and planting, the failure to survey, patent, and improve ought to be held a dereliction: Else, other locators might have been put to inconvenience, and the public...
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