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McARTHUR v. BROWDER.

March 12, 1819

MCARTHUR
v.
BROWDER.



APPEAL from the Circuit Court of Ohio. The bill in equity filed in this cause, by the appellant, McArthur, stated, that George Mathews, on the 19th of September 1799, made the following entry with the surveyor of the Virginia army lands:

'No. 3717: 1799, September 19th. George Mathews, assignee, enters 1000 acres of land, on part of a military-warrant, No. 4795, on Deer creek, beginning where the upper line of Ralph Morgan's entry, No. 3665, crosses the creek, running with Morgan's line, on each side of the creek, 200 poles; thence up the creek 400 poles, on a direct line, thence from each side of the given line, with the upper line, at right angles with the side lines, for quantity.'

That afterwards, the entry of Ralph Morgan was withdrawn; and that, in consequence, George Mathews made the following entry: 'No. 3717: 1801, October 26th. George Mathews, assignee, enters 1000 acres of land on part of a military-warrant, No. 4795, on Deer creek, beginning at two elms on the south-west bank of the creek, upper corner to Henry Mossies' survey, No. 3925, running south 45° west, 120 poles, north 65° west, 172 poles, north 17° west, 320 poles, north 76° east, 485 poles, thence south 1° west, 292 poles, thence to the beginning.'

The bill charged, that the last entry was not intended as a new one; but only as an amendment or explanation of the first. This last entry was surveyed the 7th of October, 1807: and upon an assignment to the complainant, the land embraced in the survey was patented to the plaintiff, the 6th of July 1806.

The title of Browder, the respondent, was stated in the bill as follows: That on the 20th of July 1798, Nathaniel Randolph made the following entry:

'No. 3310: July 20th, 1798. Nathaniel Randolph, assignee, enters 300 acres of land on three military-warrants, Nos. 4165, 4250 and 4664, on the lower side of Deer creek, beginning at a walnut and two elms, cornered five poles from the bank of the creek, running south 61° west, 200 poles to two white oaks, and two hickories, thence north 7° west, 234 poles, thence north 61° east, 200 poles, thence to the beginning.' That the last entry was surveyed for Randolph, and the oldest patent obtained by him, which he conveyed to Browder, who has recovered upon an ejectment.

By the answer and exhibits, it appeared, that Randolph's survey was made the 1st of August 1798; that a patent was granted to Randolph, the 29th of September 1800, who conveyed to the respondent. The respondent, Browder, having brought an action of ejectment, recovered the possession of the land in question; and the appellant, McArthur, filed this bill in equity, praying for an injunction; a conveyance of so much of the land claimed by the respondent, as interfered with his claim; and for general relief. The bill was dismissed by the circuit court, and the cause brought by appeal to this court.

March 10th, 1819.

This cause was argued by Scott and Brush, for the appellant, and by the Attorney-General and Doddridge, for the respondent.

March 12th.

MARSHALL, Ch. J., delivered the opinion of the court.

In this case, the appellee claims under the elder grant, founded on the elder entry. Consequently, if his entry be valid, the bill of the appellant cannot be sustained. But the entry is so defective in description, that it was necessarily abandoned; and the appellee relies on his patent; anterior to the emanation of which, the appellant contends, that the land was appropriated by this entry. The validity of this entry also is denied. But before we examine the objections made to it, we must consider those which have been urged against the jurisdiction of this court as a court of equity.

The rule which prevails both in Kentucky and Ohio is, that, at law, the patent is the foundation of title, and that neither party can bring his entry before the court. In consequence of this rule, it has been also well settled, that the junior patentee, claiming under an elder entry, may, in chancery, support his equitable title, and obtain a decree for a conveyance of so much of the land as, under his entry, he may be entitled to. But the general principle is supposed to be inapplicable to this case, because the words of the entry are introduced into the grant; and if they were too vague to appropriate the land, when used in the entry, they must be too vague to appropriate it, when used in the grant, which is a question triable at law, and which was tried in the ejectment brought by the appellee for the land.

Were the fact precisely as stated, it could not support the argument which is founded on it. When lands are granted, a description which will identify them is all that is necessary to the validity of the grant. But identity is not all that is necessary to the validity of an entry. The law requires that locations should be made with such certainty, that subsequent purchasers may be enabled to locate the adjacent residuum. All grants are founded on surveys; they recite the surveys, and all that is required in an ejectment is, to prove that the land claimed is that which was surveyed. But more is required in a contest respecting an entry; nothing is more common than for courts to declare en entry void for uncertainty, notwithstanding the clearest proof that the land claimed, and that located, are the same.

There is then nothing in the resemblance between the words of the grant and of the entry, to distinguish this from other cases, in which the party claiming under the first good entry, comes into chancery to obtain a conveyance of lands held under a senior patent. We proceed, then, to examine the entry under which the appellant claims. That entry is made for 1000 acres of land on Deer creek, 'beginning where the upper line of Ralph Morgan's entry crosses the creek, running with Morgan's line on each side of the creek, 200 poles, thence up the creek ...


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