Taylor and Quarles v. Brown

• Decision Date: 01 February 1809
• Citation: 5 Cranch 234,3 L.Ed. 88,9 U.S. 234
• Parties: TAYLOR AND QUARLES v. BROWN
• Court: U.S. Supreme Court

9 U.S. 234

5 Cranch 234

3 L.Ed. 88

TAYLOR AND QUARLES v. BROWN.

February Term, 1809

ERROR to the district court for the Kentucky district, in a suit in chancery, wherein Taylor and Quarles were complainants against Brown. The bill of the complainants was dismissed by the court below.

Both parties claimed under military warrants upon the king's proclamation, for services rendered prior to the year 1763.

The complainants claimed under a warrant in favour of Angus M'Donald, for 2,000 acres issued

the 5th of February, 1774. The defendant claimed under a warrant in favour of Jethro Sumner, for 2,000 acres, issued the 3d of December, 1773. M'Donald's survey was made on the 7th of July, 1774. Sumner's was made on the 24th of June, 1775, and he obtained a patent on the 5th of January, 1780. The patent upon M'Donald's survey, was not issued until the 10th of January, 1792; so that the complainants had a younger warrant and patent, but the elder survey. The defendant had the elder warrant and patent, but the younger survey. M'Donald's survey included 3,025 acres; Sumner's included, 2,576 acres. The quantity covered by both surveys was 1,080 acres, of which Taylor claimed 660, and Quarles, 200; it did not appear who claimed the other 220 acres, included in the interference.

M'Donald's survey was made by Hancock Taylor, an assistant surveyor of Fincastle county, where the lands lay, who, before his return to the office, was killed by the Indians on the last of July, 1774, but his field-books and papers were preserved by his attendants, and delivered to the principal surveyor of the county, in September, 1774, who made out a plat therefrom.

The complainants' bill charges, that the survey of Sumner was fraudulently made, so as to interfere with M'Donald's. The answer denies the fraud; and there was no evidence of fraud, or even of notice on the part of Sumner.

P. B. Key and Rowan, for the complainants, (the plaintiffs in error,) contended, that the survey made by Hancock Taylor, and the plat and certificate of survey made out by the principal surveyor, were a good execution of the warrant, and were a complete appropriation of the land surveyed, so as to give to M'Donald a prior title in equity; and that the subsequent patent related back to the survey, so as to give to the complainants a better title in equity than the defendants.

Pope and Swann, contra, contended,

1. That it did not appear that M'Donald's warrant ever was in the hands of the surveyor.

2. That the survey was not recorded within two months after it was made.

3. That the survey was not certified by Hancock Taylor, the assistant surveyor who made the survey.

4. That the complainants had a remedy by caveat; and having neglected to avail themselves of that remedy, they could not have relief in equity.

5. That the survey, both in law and equity, was void as to all but $2,000 acres.

6. That the complainants have no equity.

1. Upon the first point it was said that the warrant is the only authority for the officer to survey the land; and if he never had the warrant, the whole proceeding is void. It must be proved, therefore, that the officer had the warrant.

2. The act of 1778, c. 14. § 6. requires that every survey shall be recorded by the surveyor, in a book kept by him for that purpose, within two months after the same shall be made. This was a condition precedent to the validity of the survey.

3. The survey was not certified by Hancock Taylor, the assistant surveyor who made the survey.

It is an incontrovertible position, that when the law entrusts an officer to do an act in pais, he is the only person who can certify the act done. A deputy surveyor, or a deputy sheriff does not derive his authority from the principal surveyor, or the high sheriff, but from the law. The principal has only the appointment of the deputy; but his

authority to act as, and for the principal, is derived from the law. There can be no evidence of a survey, but the certificate of the officer who made it. If a man went to make a settlement, but should be killed on the way, it is true, the act of God prevented, but still it was no settlement.

4. The complainants had a remedy by caveat, when they might have established their title at law. Having lost this remedy by their own negligence, it is contrary to the principles of equity to aid them.

5. The survey was void to the surplus, beyond the 2,000 acres authorized by the warrant. As to this surplus M'Donald was a mere volunteer; he paid no consideration; it was a fraud upon the state; and a mere survey, without the authority of a warrant, can give no title in equity. Hughes's Rep. 21. 26. Dougherty v. Crow. Sneed's Kentucky Cases, 9. Ward v. Kenton. Sugd. 200, 201, 202. 1 Fonb. 348.

6. The complainants have no equity. The defendant was a purchaser for a valuable consideration without notice of any title or claim by M'Donald. No fraud or notice is brought home to Sumner. He purchased the land fairly; he has paid for it and obtained the legal title; and he must hold it until some other person shows a better title in equity.

There is no evidence of notice, even if the depositions can be read which are sent up with the record; of which there is strong doubt; for the jury, according to the practice in Kentucky, has found all the facts in dispute between the parties.

Even if one of the depositions should contradict the answer, yet a court of equity will never decree against the defendant's answer, upon a single deposition, unless it be strongly corroborated by circumstances.

LIVINGSTON, J. Are those the depositions upon which the jury acted in finding the facts? If they are, I, for myself, should consider the finding conclusive; and that we could not look into the depositions.

MARSHALL, Ch. J. When the first case of a suit in chancery of this kind came before this court from Kentucky, the court was struck with the irregularity of the intervention of a jury to ascertain the facts in any other mode than by an issue directed by the court as a court of chancery; and as this court is only authorized to proceed in chancery cases according to the principles and usages of courts of equity, the court was disposed to disregard facts thus found.

The court felt no difficulty in looking into the depositions, but their doubt was, whether they should take into consideration the facts found. However, as such a practice was said to have been established in Kentucky, the court agreed to look into the facts found where they were not inconsistent with the depositions in the cause. I think the first case of this kind which came up from Kentucky was that of Taylor and Bodley.

If M'Donald ever had equity, he has forfeited it by his negligence. No step was taken to complete the title from 1774 to 1792, a period of eighteen years. 2 Wash. 106. Pickett v. Dowdall. 2 Wash. 121. Curry v. Burns. 1 Wash. 116. White v. Jones.

The doctrine of relation applies only to the parties themselves, viz. to M'Donald and the commonwealth of Virginia. It does not apply where the rights of third persons are concerned. Co. Litt. 190. Plowd. 188. 2 Vent. 200. 2 Wash. 113. 120, 121.

Bowan, in reply.

1. It was not necessary that the warrant should

have been in the hands of the surveyor. It was sufficient authority to him to survey the land if he knew that such a warrant existed. But if it were necessary that he should have had it in his hands, the presumption arising from his having made the survey is strong that he had the warrant, and is sufficient proof of that fact until the contrary be proved. The bill avers that the warrant was delivered to the surveyor. The answer does not deny it, and there is no evidence that it was not. It is a matter only between the complainants and the surveyor, and no other person can take advantage of it. It was no injury to the defendant.

2. The recording the survey within two months was a duty imposed by law upon the surveyor, and he was liable to a penalty if he neglected to do so; but his neglect could not invalidate the survey. It does not appear upon the record that the survey was not recorded within the two months. The presumption is, that the officer did his duty till the contrary appears. The act of 1748 requires the surveyor to return a list of his surveys to the college of William and Mary, who were entitled to certain fees upon every survey. It cannot be contended that the surveys were void if the list was not returned. There are a number of other things required of the surveyor by that act, yet it was never supposed that his neglect to do them would vacate his surveys. The recording was not intended as notice to others, because the surveyor was expressly forbidden by law to give a copy for twelve months. The only notice which the legislature intended should be given to subsequent purchasers during that period was the marking and bounding the land.

The survey is the appropriation. Sumner had all the notice which the legislature intended he should have. The depositions show that the land was actuaily marked and bounded; and that the marks and bounds were a matter of public notoriety.

The act of recording was a duty which the officer was bound to perform. The complainants could not compel him to perform it, and therefore they ought not to suffer if he neglected it. The issuing of the patent is strong evidence either that the survey was recorded in time, or that the want of such record did not invalidate the title. The register of the land-office was the person best acquainted with all the prerequisites to a grant. After a lapse of thirty years, all these prerequisites are to be preserved until the contrary appears.

3. It was not necessary that the plat and certificate should be made out by the same officer who made the survey. Every thing that is done by a deputy surveyor is supposed in law to be done by the principal, and when the principal himself undertakes to act, there can...