Shipp v. Miller

• Decision Date: 11 March 1817
• Citation: 15 U.S. 316,2 Wheat. 316,4 L.Ed. 248
• Parties: SHIPP et al. v. MILLER'S heirs
• Court: U.S. Supreme Court

15 U.S. 316

2 Wheat. 316

4 L.Ed. 248

SHIPP et al. v. MILLER'S heirs.

March 11, 1817

APPEAL from the circuit court for the district of Kentucky.

March 5th, 1817.

This cause was argued by Mr. Talbot, for the appellant, and by Mr. Sheffey, for the appellees.

Mr. Justice STORY delivered the opinion of the court.

This is a bill in equity brought by the appellees, who are the heirs at law and devisees of Henry Miller, deceased, to be relieved against the claims of the appellants under prior patents to a tract of land, to which the appellees assert a prior equitable title under a prior entry by their ancestor.

On the 11th of December, 1782, the said Henry Miller made the following entry: 'Henry Miller enters 1,687 acres of land on a Treasury Warrant, No. 6,168, adjoining Chapman Aston on the west side, and Israel Christian on the north, beginning at Christian's northwest corner, running thence west 200 poles, thence north parallel with Aston's line until an east course to Aston's line will include the quantity.' Henry Miller died in 1796, and in 1804 this entry was surveyed, and after that time a patent issued thereupon in due form of law. At the time of the death of Miller, and also of the survey of the entry, several of the plaintiffs were under age, and some of them at the commencement of the suit continued to be under age.

There was not, on the 11th of December, 1782, any entry upon record in the entry taker's books in the name of Chapman Aston. But there were several in the name of Chapman Austin, and several in the name of Isaac Christian. One in the name of Chapman Austin is dated 26th of June, 1780, for 4,000 acres of land lying on Red River, and another in the name of Israel Christian, dated the 5th of December, 1782, for 2,000 acres of land lying on the same river; but there is no proof in the cause that these entries are in the neighbourhood of each other. The entries relied on by the complainants as those referred to in Miller's entry are as follows: 'On the 26th of June, 1780, Chapman Austin enters 4,000 acres on the dividing ridge between Hinkston's fork and the south fork of Licking, beginning two miles north of Harrod's Lick at a large Buffalo road, and running about a north course for quantity.' 'On the 29th of November, 1782, Israel Christian, assignee of Archibald Thompson, enters 200 acres of land upon a military warrant, No. 193, adjoining an entry of Chapman Austin, at his southwest corner on the dividing ridge between Hinkston's and Stoner's fork, two miles north of Harrod's Lick, running thence west 200 poles, thence north until an east course to strike Austin's line will include the quantity.'

The appellants having the elder grant, the first question arising in the cause is as to the validity of the entry of Miller. It is, in the first place, contended, that it is void, because it contains no sufficient description of the position of the land, and no specific reference to any other definite entries to make it certain. It is, in the next place, contended, that it is void, because Chapman Austin's entry, on which it is dependent, is void for uncertainty.

There is certainly a mistake in Miller's entry, as to the name of Aston, and the defect cannot be cured by considering Aston and Austin as one name, for they are not of the same sound. But an error in description is not fatal in an entry, if it does not mislead a subsequent locator. Upon searching the entry book no such name could be found as Chapman Aston; and if Miller's entry had only called to adjoin Aston, there would have been great force in the objection. But it calls also to adjoin Israel Christian's entry on the north, and to begin at his northwest corner. A subsequent locator would, therefore, necessarily be led to examine that entry. On such examination he could not fail to observe that it calls to adjoin an entry of Chapman Austin, at his southwest corner, on the dividing ridge between Hinkston's and Stoner's fork, two miles north of Harrod's lick. This specific description would clearly point out the particular entry to which it refers. It could be no other than the entry of Chapman Austin for 4,000 acres, already stated; for that calls for the same ridge, and to begin at the same distance from Harrod's lick. Two entries would thus be found adjoining each other, which would, as to position and course, perfectly satisfy the calls of Miller's entry. No other entries could be found which would present the same coincidences. A subsequent locator could not, therefore, doubt that these were the entries really referred to in Miller's entry, and that Chapman Aston was a misnomer of Chapman Austin. The entry, then, of Miller, contains, in itself, a sufficient certainty of description, if the entries to which it refers are valid; for id certum est quod certum reddi potest.

As no objection is alleged against Christian's entry, all consideration of it may at once be dismissed. The validity of the entry of Chapman Austin remains to be examined. It calls to lie 'on the dividing ridge between Hinkston's fork and the south fork of licking, beginning two miles north of Harrod's lick at a large Buffalo road, and running about north for quantity.' It is conceded that Harrod's lick was, at the time of the entry, a place of general notoriety; and it is proved that there was no Buffalo road two miles north of that lick. The nearest Buffalo road was, at its nearest approach, more than two miles from the same lick, and crossed the ridge at more than three miles distance from it; and a line drawn due north from the lick would not strike that road until after it had crossed the ridge at about four miles distance from the lick. The calls, then, in the entry cannot be completely satisfied in the terms in which they are expressed. The general descriptive call to lie on the dividing ridge, as well as the call for distance, must be rejected, if a buffalo road about four miles north of the lick were to be deemed a sufficient compliance with the call for a large buffalo road; for the whole land would then lie, not on, but beyond the ridge. Such a construction of the entry would be unreasonable. Is, then, the entry void for repugnancy or uncertainty, or can it be sustained by rejecting the call for a large buffalo road? It is a general rule that when all the calls of an entry cannot be complied with, because some are vague, or repugnant, the latter mav be rejected or controlled by other material calls, which are consistent and certain. On this account, course and distance yield to known, visible, and definite objects. But course and distance do not yield unless to calls more material and equally certain. The locative calls in this ontry are for a point two miles north of Harrod's Lick, and for a...