Jasper et al. v. Quarles, Pulaski, 1808

Jasper et al. v. Quarles.

COURT OF APPEALS OF KENTUCKY

3 Ky. 469; 1808 Ky. LEXIS 95; 1 Hard. 469

March, 1808, Decided

PRIOR HISTORY:  [**1]  This was a controversy for land, between settlers, under the laws of Kentucky, on one side, and the holder of a conflicting military claim, on the other.

The former, who were complainants in the court below, and appellants in this court, made their improvements, respectively, in the year 1796, and settled thereon, one in the fall of that year, the others in the ensuing spring. On the 10th day of August, 1798, they applied to the commissioners appointed for that purpose, and obtained their certificates, specially describing the lands in controversy; which were duly entered with the surveyor, in the same month. Surveys made thereon were duly recorded and registered; but grants were not obtained, owing to the lien retained by the state, for the payment of the purchase money in twelve annual instalments.

The appellee claimed under an entry made for Bernard Lipscombe, on a military warrant, in August, 1784, for land in the district of country set apart for the officers and soldiers of the Virginia state line. But this entry did not cover any part of the land in controversy. In August, 1797, a survey was made in consequence of this entry, which included the land on which the appellants [**2]  then resided; and, in May, 1798, a patent for this land issued to Lipscombe. He conveyed it to the appellee, who brought suit and recovered judgment in ejectment against them.

They, thereupon, jointly exhibited their bill, and obtained an injunction against him. Their bill states that their improvements were made in 1796; their settlement thereon, shortly after; their residence thereon, ever since; the granting of certificates to them, respectively, by the commissioners; entries with the surveyor; surveys; registry; a compliance, generally, with the acts of assembly, under which they obtained their certificates; that knowing of Lipscombe's entry, they had made an experimental survey thereof, before it was in fact surveyed; and, thereby, ascertained that they were not within it; the illegality of Lipscombe's survey, as being variant from his entry; and, that it included upward of six hundred acres of surplus land.

The answer does not suggest that the complainants had obtained their certificates without having performed the previous conditions, or for colorable settlements or improvements; but places the defense principally upon the allegations: "That the patent issued, and [**3]  the title was complete to Lipscombe before the certificates were granted to the complainants; that certificates could only issue for vacant land; that the claim of the complainants must be founded in misrepresentation and imposition on the commissioners in stating that the land was vacant and unappropriated, which in fact was then patented, and absolutely vested in Lipscombe.

The evidence in the cause, proved the actual settlement, and continued residence of the complainants: and, also, the experimental survey and surplus land, charged in their bill.

Upon the hearing of this cause, in the circuit court of Pulaski, that court were equally divided in opinion, and by consent, a decree without prejudice, was entered against the complainants, and an appeal taken by them.

COUNSEL: CLAY for appellants--Contended that their right to the land, commenced with their settlement thereupon, in 1796; if not from that date, that it did from the passage of the act of 1797. That whenever land was vacant at the time of the settlement which the law then authorized, or afterward recognized, the settler acquired a right which could not be divested by a patent granted subsequent thereto; and that the [**4]  expressions, "vacant land," used in the acts of 1797 and 1798, related to the time of making the settlement, not to the time of granting the certificates.

HUGHES and ALLEN for appellee--Contended that the appellants were not entitled to relief by bill in chancery. That the certificate not showing, on its face, when the improvements were made, nor that two acres of corn were raised, etc., it was not good against a patent. But if good, it was only evidence that the services were performed before the date of the certificate, but did not show that that they were performed before the date of the patent to Lipscombe. And if parol evidence were to be admitted, to show when these things were done, there was no evidence here that in fact the two acres of corn were raised before the date of the patent. That all the requisites to obtaining a certificate, must be performed before the settler acquired any right to the land; and that there was here no allegation nor proof of the notoriety of the objects called for in the certificates of the appellants.

CLAY in reply--Insisted that chancery had jurisdiction, whereever the legal title to land was in one person, and a superior equity in another. 

 [**5]  That the settler's right to land commenced with doing the first act required by law, whether that were actual settlement, clearing ground, or raising corn. That the law made the commissioners judges of these acts, whose judgment, when given, was conclusive on all the world; that the certificate required by law, was to show the land appropriated, not the detail of steps taken to secure it; that the certificate was conclusive of their rights, and the evidence of their time of settlement proper, as it was of a matter which the certificate did not purport to decide; and that the doctrine of notoriety which governed treasury warrant claims, could not apply to settlement claims, under our acts of assembly; but if it did, here was proof of actual residence, and that has always been held sufficient evidence of notoriety. 

JUDGES: EDWARDS, Ch. J. 

OPINION BY: EDWARDS 

OPINION

 [*472]  EDWARDS, Ch. J., delivered the opinion of the court. After a statement of the case, he proceeded:

The several positions taken in argument, on either side, may be confined to three propositions:

First. Will a bill in equity lie on behalf of a settler, under the acts of the legislature of Kentucky, against a person [**6]  claiming under the legislative acts of Virginia, without proof of actual fraud or accident?

Second. Were the complainants settlers on vacant land, within the meaning of the acts of assembly of 1797, and 1798? If so, then

Third. Can the intermediate grant, between the first occupancy and the certificates obtained from the court of commissioners, defeat the claims of the settlers?

Upon the first question, taken as a general abstract proposition, we have no hesitation in saying, that in all cases of conflicting claims to land, if one hath right, and the forms of law are inadequate to protect that right, a court of equity must. See Crow's Heirs v. Harrod's Heir, ante, 443.

The jurisdiction of courts of chancery, from a mere atom, has been gradually unfolded and extended; struggling with the courts of common law, in its growth; but succeeding in the contest, by a happy facility in adapting its forms to the subjects embraced; by an easy pliability in its proceedings; affording a more enlarged examination, a more uniform rule of property, and a more appropriate redress. Chancellors, it is true, have now classed their appropriate subjects of jurisdiction, under [**7]  the heads of fraud, accident, and trusts. But it must not therefore be admitted, that a jurisdiction, the most effectual and appropriate for the uniform decision upon our land titles, must be abandoned, if it should not fall within the one or the other of those classifications.

This court can not say, that the exercise of jurisdiction by the courts of chancery, for upwards of twenty years; an acquiescence without struggle; and the silent approbation of the legislature; shall not give as good a sanction, as a single decision of a British chancellor. And it can not be imagined, that an incipient right, under the laws of Virginia, can give license to do a wrong in Kentucky, because of our separation; or that the one party interested should be sole judge, in determining when his right to take and what he had taken were equipoised in the scales of justice.

 [*473]  The second question may be considered as to the time of settlement, and as to the vacancy of the land at that time. Upon the first, the proof is clear and explicit, as to the improvement of the lands in the fall of 1796, and that one of the complainants (Andrew Jasper) settled himself thereon, in the same [**8]  fall; and that the others settled upon theirs, in the ensuing spring. At the time the improvements were made, no law recognized them as any foundation of a claim to the land. The act of 1795, ch. 49, p. 79, was only retrospective. But the improvement, and continued residence in 1797, was a sufficient settlement, under the statute enacted on the first day of March in that year. Acts of 1796-7, 184.

But if any doubt could have arisen, it is silenced by the latter part of the sixth section of the act of 1798, 1 Sess. of 1798, ch. 46, p. 84; 1 Brad. 84, which ascertains and establishes the mode and criterion of determining the claims, and their priority. This section will be hereafter more particularly noticed.

The other member of the second question is demonstrated in favor of the settlers, by the plat and evidence. It appears that the entry of Lipscombe, can not, by any rational construction, or even plausible mistake, be made to include any part of the land in controversy; and that even his survey was not executed until after the appellants were actually settled, and during their residence on the respective claims.

The land was clearly vacant, and unappropriated [**9]  by Lipscombe, at the time of the improvements and settlements in question, without deciding whether a settlement within the boundaries of an erroneous survey of a military location, previous to the emanation of the grant, would, or would not, be an act of settlement, authorized by law.

The third question depends upon the time from which the rights of the settlers, and the claims of Lipscombe, shall be said to have accrued. By the statute enacted and approved on the first day of March, 1797, the license and terms of settlement on vacant lands were declared. By this, one year's residence, previous to the grant of the certificate by the commissioners, was required of each settler. As the commissioners were to hold their sessions in the several counties, commencing in August, 1798, and ending in October, this act would have had a very limited operation. On the 10th of February, 1798, another act was passed, entitled, "An act to amend and revise the act entitled an act for encouraging and  [*474]  granting relief to settlers," whereby it is recited, that the act aforesaid "is found defective, and wants amending; and it appears most proper to draw the said recited [**10]  act, with the necessary amendments, into one point of view."

Therefore, it was enacted, "That any widow, or any free male persons, above the age of eighteen years, and every other free person, having a family, who shall have or may actually settle himself or herself on any vacant and unappropriated land, on the south side of Green river, on or before the first day of July next, clear and fence two acres of land and tend the same in corn, shall be entitled to two, and not less than one hundred acres, to include his or her settlement in any part of the survey, which he or she shall express in his or her entry." The third section requires that the party "who shall be entitled to a settlement by virtue of this act, shall lay in his or her claim before the commissioners; describing the bounds of his or her lands; and have there his or her witnesses to prove their rights of settlement."

The sixth section requires the appointment of the commissioners, and specifies the respective times and places at which their sessions shall be holden, in the several counties south of Green river, commencing in August and ending in November, with power to appoint resittings, where any business [**11]  had been left unfinished. Their powers are declared, "To hear and determine the rights of settlement agreeably to this act."

It is evident, therefore, that the commissioners had no power to grant new rights, but to determine and ascertain those which that act had granted. The priority of rights to be heard by the commissioners, under the act of 1797, was declared by the sixth section thereof, viz: "In all disputes between settlers, respecting the priority of settlement, the improvement first made shall have the preference."

The sixth section of the act of 1798, gives the commissioners power "to hear and determine all disputes, during their sitting, between those who shall claim a right to settlement under this act." And in all disputes "between settlers, respecting the priority of settlement, the eldest improvement made since the first day of March, 1797, shall have the preference; but no person shall obtain a certificate for more than one improvement; provided, however, any person who may have actually settled him or herself on any vacant land, as aforesaid, prior to the first day of March, 1797, and comply with the requisitions of this act, and reside  [*475]   [**12]  thereon at the meeting of the commissioners, and who did not obtain a certificate from the former commissioners, shall be considered as the eldest improver; but in a dispute between settlers, concerning the priority of improvement, under this act, no improvement shall be considered as sufficient, unless the person making the same shall have actually settled thereon within four months from the time of improving, unless a sufficient reason can be alleged, to be adjudged of by the commissioners."

The seventh section makes it the duty of their clerk "to make out a certificate to each person to whom a claim is granted, describing particularly the bounds of the land agreeably to the location handed in to the court, which certificate shall be signed by the commissioners, and the said clerk shall enter the locations in a book; and such book or books, after being signed by the commissioners, shall be lodged in the register's office, and shall be admitted as testimony, or a copy therefrom attested by the register in any future disputes between settlers."

The arguments founded upon the supposition that the commissioners were required to certify the times of improvement, or that they [**13]  ought to have done so, and that these certificates being silent as to the time of improvement, can not be helped by parol averment of the party, must fail. These provisions show, beyond question, that as between settlers, the right commenced from the time of improving, and improvements made previous to March, 1797, where the act of 1798 had been complied with in other respects, were declared eldest. In doing this, the legislature have declared the commencement of the claim to every legal and equitable intent.

It must not be forgotten that the claims for settlement were the only rights which had originated under the state of Kentucky. The time limited by the articles and terms of separation from Virginia, for the location and appropriation of claims derived under the laws of Virginia, and particularly as to the claims within the district set apart for the officers and soldiers, had expired on the first day of May, 1792, as the farthest time allowed for the appropriation of any claims under that state. Those claims were to be perfected under the laws of Kentucky; but the precise quantum of right, must have been fixed before the passage of the acts of the legislature for [**14]  encouraging and granting relief to settlers. The standard of right and dignity as to all other claims having been fixed, it was only necessary that the standard between the claims subsequently created, should be fixed.  [*476]  That the commencement, and not the fulfillment of the services required, must be regarded as the criterion of priority, as evidenced by the sections of the acts before recited.

That the whole service is not to be taken as one act, and disregarded in the question of priority of title until completed, is manifest. The act distinguishes by priority of improvements; then speaks of improvements not commencing by settlement, and declares a time within which a settlement must be made on such improvements, and in such case expressly declares that the improvement shall be the commencement of right, and not the end, or more matured state of compliance with the law.

The commissioners were not required to state in the certificate any thing relating to the right, but the quantity and boundaries described by the claimant, and the rate of the land by way of ascertaining the price to be paid. The certificate amounted only to an adjudication that the previous requisites [**15]  of the law had been complied with, and the rate to be paid for the land. The balance of the certificate was the act of the party, in describing the land claimed. He was not bound or required to state when it commenced. His certificate was an admission of his claim to the land settled and improved, which it is competent for him to identify, as to place and time, when occasion shall require. If it were otherwise, let us examine the consequences.

A grant may issue at the end of six months from the registration of the survey; that may be done as soon as the surveyor will be pleased to record the plat and certificate thereof, and delivered it out to the owner. So that in little more than six months a grant may be obtained upon any survey.

The act of 1797, required of the settler a year's previous residence. The act of 1798, dispensed with residence for any given length of time, previous to the issuing of the certificate, but by both acts, the sittings of the commissioner were deferred until the month of August, 1798. A person who settled in March, 1797, or had improved before that month, or who had or should settle and complete his improvements by the first of July, in the year 1798,  [**16]  was within the provisions of both acts. But a person who by an illegal or erroneous survey obtained by any color whatever, six months anterior to the first day of July, 1798, and including settlers, could, notwithstanding, have procured a grant very conveniently, before the settler could, by possibility, have obtained his certificate. If he had no right, until he obtained his certificate, he is  [*477]  without redress. Shall it be said that such a grant, right or wrong, shall defeat the bona fide settler? This, in effect, would be a declaration that the settler had no protection from illegal surveys, until within six months next proceeding the time at which he might reasonably hope to obtain his certificate from the commissioners.

The operation of the act of 1797, would thus be wholly defeated; for twelve months' previous residence, would then be impossible; and that of 1798 would have been partially suspended in several of the counties in which the latter sessions of the commissioners were appointed. By such a construction, the settlers, instead of having the pledged faith of a just government, would have had only an instrument, like unto the invitation of a sharper.  [**17]  Such conclusions to be formed out of the acts of the legislature, would be absurd; and therefore, such constructions can not be proper. Any person who really and bona fide had settled himself on vacant land, under faith of those statutes, was entitled, in the general, to protection from wrongful intrusion from surveys.

Let us inquire whether the nature or circumstances of Lipscombe's grant, or survey, can form an exception. Is there any magic in the name of a military survey, or a military warrant, which can authorize or license the owner, or the surveyor, to range at large from the entry, free and unconfined? It is true, those to whom such warrants were granted, purchased them at a price which the present and future generation ought to hold in the most grateful remembrance. But some two or three individuals, who have contributed their mite to the common weal, ought not to be made to sustain the whole weight of gratitude and bounty, due from the community at large. This would be injustice and oppression.

If a grant had actually issued before the first act of improving, with an intention of appropriation, manifested and continued according to law, then, no such improving or [**18]  settling could give claim, because not upon vacant land. But if vacant at the time of such improvement, when the services are rendered and completed according to the statutes, the whole performance shall be taken together, and the claim must relate to the first incipient act, unless an intermediate abandonment, or an intention in fraudem legis, is shown.

Under the laws of Pennsylvania, 3 Cranch 1, for settling vacant lands at a certain price to those who would cultivate, improve and  [*478]  settle them, it has been uniformly decided in the courts of that state, that the first incipient act of improving, if accompanied and pursued animo residendi, so as to complete the services within the term required by law, shall be considered as the incipiency of the claim.

Under the act of 1779, Chancellor Wythe decided that the settler had an incipient claim from the time of improving, even against one who had acquired a right previous to that act, Maze v. Hamilton, Wythe's Rep. 36. That decision was correctly reversed by the court of appeals of Virginia; yet both decisions acknowledged the principle, that if the improvements recognized by that act, had been [**19]  under the faith of an existing law, that they would have been the incipiency of the claims. We are clear that such is the intention and general scope of our statutes.

There is no exception in favor of the holders of military warrants, who might choose to swing from their entries ad libitum; but, on the contrary, the acts themselves contain a plain negative upon such an implication.

The ninth section of the act of 1797, and the tenth section of the act of 1798, require the surveyors of counties including any part of the military boundary, as it was called, to apply immediately to the surveyors of the Virginia state and continental lines, for copies of all the entries in their respective offices, on military warrants, which are required to be furnished in three months from the passage of the act, and every one who pleased, was entitled to have, from the surveyors of the respective counties, a copy of any entry, paying one shilling for every copy so delivered.

For what could these entries have been provided in every county including any part of the land set apart for officers and soldiers, if not to govern settlers in their claims to vacant land? And if a survey, variant from [**20]  the entry made subsequent to the act of improvement or settlement was to govern, of what use was the entry to the settler? As, on the one hand, great mischiefs and confusions would ensue, from individuals taking upon themselves to decide whether a survey made previous to their improvements had been legally made, or valid in law, and making settlements thereon at their will and pleasure; so, on the other hand, like consequences would ensue, from military or other claimants undertaking to determine the quo animo with which an improvement had been made, and when the improver's intention to abandon was evidenced, or when his improvement was forfeited for  [*479]  want of residence, and thus to say, we will take advantage of the breach and forfeiture of the condition, without trial, or without mercy, so as to preclude the commonwealth (to whom the right properly belongs) from excusing upon good reasons, or from graciously remitting the forfeiture.

We are decidedly of opinion that it does not lie in the mouth of one claiming under Lipscombe's survey to say the complainants have no claim. They are shown to be bona fide settlers and improvers, actually resident at the time [**21]  of the survey made upon them, and ever since. The survey is altogether variant from the entry, and without plausibility for the mistake; for, independent of the error in the beginning assumed, and the error in the fork of the stream up which the survey has been extended, a most palpable extension of the line, from the creek westward toward the settlers, has been made, of seven hundred poles instead of four hundred and twenty, the distance called for by the certificate of survey. The inspection of the plat, and a comparison of the report of survey in this cause with the entry and grant of Lipscombe, united with the actual settlement and residence of the complainants on the ground when Lipscombe's survey was made, furnish clear evidence of a fraudulent deviation from the entry, for the purpose of including the settlers. Whether Lipscombe, or his alienee, was privy to the fraud is quite immaterial, as to the question of right here; neither of them ought to be permitted to reap the fruits of this wrongful act, committed to the prejudice of the complainants.

We are, therefore, of the opinion, that the complainants have the prior equitable claim to the lands in controversy.

Wherefore,  [**22]  it is decreed and ordered, that the said decree of the circuit court be reversed, and it is hereby annulled and set aside; and it is ordered, that the suit be remanded to the said circuit court, who are hereby directed to enter a decree for the complainants for their respective quantities of land, as specified in their certificates from the commissioners; and that the defendant, Quarles, be directed to release all his claim to the said complainants respectively for their said several tracts of land, or so much thereof as is included within the said survey made for Bernard Lipscombe; the execution of said decree, however, to be stayed until the said complainants, respectively, or those claiming from or under them, shall sue out their patents, or procure effectual acquittances from the commonwealth, of the instalments of  [*480]  money due, and to become due, with interest, for which the said commonwealth hath, by law, a lien on said lands under the said recited acts, and the subsequent acts relating to the said rights; the said appellee, and all others claiming, or to claim, under, through, or by him, to be enjoined in the meantime from proceeding upon the judgment at law, as aforesaid [**23]  obtained, and the complainants in that court to have their costs.

And it is further decreed and ordered, that the appellee pay to the appellants their costs in this behalf expended, which is ordered to be certified to the said circuit court.