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Crow's Heirs v. Harrod's Heir.
COURT OF APPEALS OF KENTUCKY
3 Ky. 443; 1808 Ky. LEXIS 87; 1 Hard. 443
March, 1808, Decided
PRIOR HISTORY: [**1] This was an appeal from a decree of the Lincoln circuit court. The cause was very fully argued by Allen and Talbot for appellants, and by Hardin and Clay for appellee.
DISPOSITION: Decree annulled, and set aside; cause remanded with directions.
JUDGES: EDWARDS, Ch. J.
OPINION BY: EDWARDS
[*444] EDWARDS, Ch. J., delivered the following opinion of the court:
In the year 1786 James Harrod, the ancestor of the defendant, exhibited his bill, in the supreme court for the district of Kentucky, against John Crow, the ancestor of the plaintiffs, to have relief against the elder grant obtained by Crow for the land in controversy. Harrod sets forth the circumstances of his purchase from Thomas Harrod, and the assignment of the plat and certificate of survey, made on Thomas Harrod's certificate, obtained from the commissioners on the 28th of October, 1779, which certificate is as follows:
"Thomas Harrod, by James Harrod, this day claimed a right to a settlement and pre-emption to a tract of land, lying on a sinking spring, joining the north-west side of James Brown's land, by improving the same and raising a crop of corn in the country, in the year 1776. Satisfactory proof being made to the court, they [**2] are of opinion that the said Thomas Harrod has a right to a settlement of four hundred acres of land, including the said improvement, and a pre-emption of two hundred acres of land adjoining; and that a certificate issue for the same, he declining to take the remainder of his pre-emption."
Which certificate was entered with the surveyor, on the 11th November, 1779, as follows:
"Thomas Harrod enters four hundred acres of land, by virtue of a certificate for settlement, lying on a sinking spring, the north-west side of James Brown's land."
James Brown had, on the same day, and previous to Harrod, obtained from the commissioners a certificate of his right to a settlement and pre-emption to a tract of land lying on Clark's run, about a mile or a mile and a half "above Clark's station, by improving the same in the year 1774, and raising a crop of corn on the premises in 1776;" the settlement of four hundred acres including the said improvement, and the pre-emption of one thousand acres adjoining. [*445] Brown, on the 11th of November, 1779, entered his four hundred acres, by virtue of his certificate for settlement, "lying on Clark's run, about a mile or a mile and a half [**3] above Clark's station."
Crow's claim was founded on a village right, granted to him by the commissioners on the 26th of April, 1780. The bill charges this claim to have been surveyed contrary to the entry thereof, and that otherwise there would not have been an interference with the land of the complainant. As the location of Crow can not be sustained, by the evidence in this cause, as a claim to any part of the land in controversy, it will be useless to take further notice thereof. Crow, or those claiming under him, must rest the defense upon the acquisition of the elder legal title. The answer of Crow was put in as early as 1787, which may account for, and be an apology for, some of the positions assumed as a defense, several of which need not be mentioned.
The answer does not question the notoriety of the objects called for in the entry of Harrod, expressly admits the identity of the spring and improvement for which the certificate was granted, and admits the derivation of title stated in the bill, and insists that, as the complainant had not caveated Crow's claim, he ought to be barred against relief in equity.
In 1797 the suit had been previously revived, in the name of the [**4] heir of Harrod against the heirs of Crow; and by an amended bill, the claim of Harrod was charged to be of superior dignity to Crow's, which was also charged as defective for want of description and identifying calls, either in the certificate granted by the commissioners or in the entries with the surveyor, as required by law, and afforded by the situation of the land and its neighborhood.
To this amendment an answer was filed; not questioning the notoriety of the objects of description in the complainant's entries, nor the identity thereof; but sets up as defense that Harrod, the ancestor of the complainant, agreed to give one thousand or one thousand two hundred acres of land to Langford, in exchange for the four hundred acres in the bill mentioned; that the bonds for that consideration had been assigned by Langford to the ancestor of the defendants, and by him pledged to William Warren and James Wilson; it is requested that they may be ordered to produce those bonds. And the answer insists that as Harrod had no land of the description called for in those bonds, the exchange [*446] was procured by fraud, and ought not to avail. To this the answer of Harrod's heir was filed, [**5] upon oath, as required by the defendants.
One of the bonds is for one thousand acres of land, and bears date in November, 1785, and is assigned to Crow without date; the other, for two hundred acres, bears date in March, 1790, and is also assigned to Crow without date.
These bonds were produced in court by William McDowell, for Charles Ford, with a reserve that they were only to be copied. The answer of the defendants states the purchase of those bonds to have been made subsequent to the commencement of the suit.
Upon the hearing of the cause, the court decreed in favor of the complainant, from which the heirs of Crow appealed to this court.
So much of the defense set up in the answer as respects the omission to caveat was properly abandoned in argument. 1 Its appearance can only be accounted for by the period at which that answer was made, being precedent to the multiplicity of suits since decided in which the objection, if it had been one, must have been apparent in the record, and yet passed in silence as unworthy of notice.
1 See Jasper and others v. Quarles, post. See Monroe's argument on this point in the case of Bosworth v. Maxwell, ante, 214.
[**6] Whoever is acquainted with the history of the claims to land, and will candidly review the natural and political history of this country, must own that the want of a caveat can not reasonably be charged as a neglect. If, in equal circumstances, the neglect to enter a caveat could be considered as equivalent to a neglect to make defense in a trial actually had at law; yet the times heretofore, and the general situation of the good people of this district, would imperiously demand that such cases should be excepted. 2
2 That the omission to file a caveat and try titles at law, before the issuing of the patent, is no bar to a suit in chancery for the same purpose after a patent has issued, was decided by the supreme court for the district of Kentucky, in March, 1789, Harrod v. Givens, Muter's MS. Rep. 36.
The second defense to be considered is the assignments of Harrod's bonds to Crow. From the date of these bonds, together with the time at which the transfers are stated to have been made to Crow, [**7] it appears the bonds were only assignable in equity. The defendants-below show no title in equity to the bonds, but admit they were pledged by their ancestor. They do not aver the pledges [*447] have been redeemed, but the contrary presumption must be indulged from their being out of possession of those bonds, and from the circumstances under which they were exhibited. But suppose a case was made out which would induce a court of equity to say that Harrod's bonds to Langford should attach upon the land given for those bonds, as an equitable lien, for a satisfaction of them; yet the lien must be only co-extensive with the demand, and not as concluding the right of Harrod or his representative. But the pledge, for satisfaction, ought to follow the demand; and although Crow once had those bonds, yet this court can not deprive Warren, Wilson or Ford of their pledges when they are not charged as wrongful detainers of those bonds and are not parties to this suit.
But neither fraud upon Langford, nor equitable lien upon the land in dispute, is made out by the appellants. If they were entitled to a satisfaction of those bonds, there is nothing to show that the appellee has been in default, [**8] so as to induce this court to decree a money compensation. The appellee states her readiness to comply with the one bond; and that after reasonable request, she would have complied with the other; but that no request was ever made, and none is made out in evidence.
The appellee's ancestor was the assignee of the plat and certificate of survey, which was assignable by law; this would have enabled the ancestor to have perfected his inceptive, inchoate, legal title; but that the elder legal title, held by Crow, under a distinct conflicting claim, stood in the way. The bonds of Harrod were purchased up, after the suit was commenced; not for the purpose of getting the Green river lands; but as now wished to set off against the four hundred acres. We can not make bargains, and exchanges, upon such terms as the answers of the appellants ask.
It now remains to inquire how far the elder title alone, is a protection against Harrod's four hundred acres, as entered.
It has been said in argument, that the objects called for in Harrod's entry, as well those used for general description, as for precise location, want notoriety. There can be no good description, or sufficient location, without [**9] reference to some object which is notorious. General directions, by allusion to subjects unknown, can aid no more than precise locality, by obscure allusions; even an exact course, and a short, exact distance, will give no aid, if the place of departure, upon that course and distance, is not [*448] understood. Notoriety ought not to be dispensed with, where it has been put in issue. In the case of Myers v. Speed, decided as early as 1795, the court said notoriety had never been dispensed with, where it had been made a question. How made a question? By argument only, in the appellate court, or by the pleadings which direct and govern the parties in making out their proofs? Surely by that which, expressly or by necessary implication, apprises the parties of the point in time, and gives them an opportunity of meeting it by evidence. That which is agreed by the pleadings need not be proven.
In the year 1800, when the amended answer was put in, the doctrine of notoriety was not new. The complainant had charged in 1797, that the defendants' claim was defective, for want of description. If the defendants had thought it could avail them, they might have retorted the charge upon [**10] the claim of Harrod; but they have chosen to rest their defense upon other grounds, and without a suggestion that the call for the sinking spring, or Brown's land, was vague, indescriptive or uncertain; but making a plain admission that they were sufficiently known.
Whether we are to infer, that by admitting the plat in the case of Brown and Crow's Heirs as evidence, the parties intend to admit that the objects were correctly represented on that plat; or, that we are to suppose the parties intended that the erroneous plat in this cause, was to be corrected by reference to another erroneous plat, are questions which require no solution. 3
3 On the trial in the inferior court the parties agreed that the connected plat made out in the cause was incorrect, and that, on the hearing before this court, they would use the plat made out in the cause of Crow's Heirs v. Brown, then depending in this court.
Several witnesses spoke of Harrod's improvement, but none of them said it was notorious or generally known; but several of them detailed transactions relative to this improvement, as the spring and improvement were claimed by two sets of locators, and created a contention between them.
[**11] We have no hesitation in saying, that the disputes about Harrod's improvement at the sinking spring, and intrusion upon the company of improvers in that neighborhood, as detailed by the different witnesses, with the other concomitant circumstances, amount to evidence of notoriety of Harrod's improvement, the sinking spring, and Brown's land, as called for in his certificate; more satisfactory than if the same number of witnesses had sworn, in so many words, that they were notorious, without giving a detail of the circumstances which rendered them so.
[*449] It remains to inquire how Harrod's claim should have been surveyed, so as to comport with his location. 4
4 See the case of Kenny v. Whitledge, Hughes, 110, and Meriwether v. Hite, Pr. Dec. 280 and 284, contra.
See also Craig v. Macher, and Ward and Kenton v. Lee, Assignee of Young, fall term, 1808, agreeing herewith.
See the case of Crow's Heirs v. Brown, Pr. Dec. 102-106.
The pre-emption appendant to [**12] Brown's settlement, was not his land before the entry upon the pre-emption warrant; the mention made in the certificate of the commissioners, is no more than a note of the quantity which the party has a right to buy in preference to others. When his location upon the pre-emption warrant was made with the surveyor, then, and not before, it must be noticed as a part of his land. The resilience of such locations, so as to draw after them previous entries, can not be admitted.
James Brown's settlement of four hundred acres, therefore, is to be taken as the land which Harrod's location is to adjoin. Brown's four hundred acres must be surveyed in a square, with lines to the cardinal points, with his spring and improvement at the intersection of the diagonals.
Harrod's four hundred acres for settlement, must adjoin Brown's land, thus surveyed, by beginning at equal distances from the north-west corner, and taken upon said Brown's northern and western boundaries, so that a right line between those equidistant points, shall be equal in length to one line of a square whose area is four hundred acres; from these points so taken, extend parallel lines for the boundaries of [**13] the survey, so as to exclude the sinking spring at equal distance from each projecting line, and so far as that a line at right angles to said parallel extending lines, shall include the quantity.
The appellees have the better equitable claim to so much land lying within the actual survey, as assigned to their ancestor, which shall fall within Harrod's location, when surveyed as before directed; and for that quantity, they are to have a deed of release and transfer from the appellants, of their legal title, with warranty only against those claiming, or to claim under, by, or through them.
It appears that the decree of the circuit court of Lincoln (to whose jurisdiction this cause had been assigned by law) does not comport with this opinion, as to the manner of surveying Harrod's claim.
[*450] Wherefore, it is decreed and ordered, that the decree of the Lincoln circuit court, herein pronounced, be annulled, and it is hereby set aside; the cause is remanded to the said circuit court, with directions to enter a decree in favor of the said heir of James Harrod, the present appellee, against the appellants, in conformity with this opinion, to be performed by the said infants, [**14] respectively, within six months after their full age, unless they shall, within that time, show cause against the decree; and that such proceedings may be had as shall be necessary to carry this decree into execution, and do equity accordingly, between the parties. Which is ordered to be certified to the said court.