1827. Dunlap V. Dunlap. In this deposition the witness states a sale by the acre, although, in his preceding depositions, he had spoken of a sale in gross. In his second deposition he had mentioned the sale of 1000 acres of land, "within the bounds of a military survey made in his name on the Scioto;" plainly alluding to a survey already made. In his third deposition, he still speaks of a military survey, but plainly speaks of it as of one to be made in future. He reserved the surplus, he said, "should the said survey contain any within the bounds." It is also observable, that he says he received the information from Massie; whereas, Alexander Dunlap says, in his answer, that he himself gave the information to Fowler. This, however, taken in itself, would not be a very material contradiction. It might be accounted for. But the various shapes in which Fowler places the contract certainly show that his recollection of it was very imperfect, and is not entitled to much credit. The assignment which he made to Alexander Dunlap is of the entire survey. It must be considered as an execution of the contract he had previously made; and is written evidence of the extent of that contract. If, instead of selling the whole survey, as the assignment imports, he had sold only a part of it, his natural course would have been, either to take out the patent in his own name, and give his obligation to convey a part when the patent should issue, or to take it out in their joint names, entering into an agreement specifying their respective interests, or to take some obligation from Alexander Dunlap, binding him to re-convey the surplus. A written contract cannot be varied by such suspicious testimony as that of Fowler; especially in a case which contains within itself the strongest circumstances of probability against the attempt. This probability is supported by other testimony than is furnished by the contract itself. James Dunlap, the brother of John, deposes, that Alexander Dunlap told him he and the plaintiff had purchased the tract of land in partnership; language which certainly alludes to the whole tract. The partition, too, which was afterwards made, after an actural survey for the purpose, if it divided the tract into moie 1827. Dunlap V. ties, is almost conclusive evidence that the idea of Fowler's title to the surplus had not then occurred to the appellant. The counsel for the appellant endeavours to support Fowler's title to the surplus, independent of the special con- Dunlap. tract, and cites some cases to show that where land has been sold for a certain quantity, and has, in fact, amounted to much less than the quantity mentioned, a Court of equity has interposed and given relief. But the difference is very material between contracts made for land in a settled country, where the titles are complete, the boundaries ascertained, and the real quantity either known, or within the reach of the vendor, and those made for land situated as was the whole military district at the date of this contract. It was notoriously the general practice to sell an entry or a survey taking the chance of surplus, and the hazard of losing a part of the land by other entries. A special contract, departing from this general custom, ought to be in writing, or to be very clearly proved, especially when the written evidence of the contract conforms to this general custom. It is, also, worthy of remark, that the entry, as it stood when sold, could not have contained any surplus land. It calls" to begin on the Scioto, at the lower corner of Benjamin Lawson's entry, No. 439, running down the river 1,000 poles when reduced to a straight line, thence from the beginning with Lawson's line so far that a line parallel to the general course of the river shall include the quantity." No excess ought to be anticipated from the survey of such an entry, and the anticipation of such excess is against all probability. The subsequent changes of the location must be supposed to have been made by the owner of the land, and the survey also must have been made by his direction, perhaps through his agent, the locater, or according to the judgment of the surveyor. Nothing could accrue to Fowler from a survey so made. We are, then, entirely satisfied, that the whole tract was purchased, and ought to be divided between the purchasers in equal moieties, unless some partition has been made or agreed upon between them. It is certain, that an effort towards a partition has been 1827. Dunlap V. made, and the questions which grow out of this effort constitute the sole difficulty in the case. The bill charges, that before the grant was issued, the Dunlap. parties divided the land in equal quantities, and the plaintiff paid Alexander 60 dollars for choice of moieties, and elected to take the northern, or upper part. A dividing line was then run, and each party took possession of his land in severalty. 1 The defendant admits, that there was a conversation concerning a division, that the line was partially run, and that the plaintiff paid him 60 dollars for choice; but insists, that the line was only partially run, that the division was incomplete, and that the intention was to divide 1,000 acres only. It is, then, admitted, that some division was made, that some line was run, that John paid Alexander 60 dollars for choice, and chose the northern part. If that line can be found it ought to be established, and if it has been run only a part of the way, it ought to be continued to the outward boundary of the tract. If it cannot be found, the land is now to be divided into moieties in the manner then agreed on. James and John Stephenson depose, that they were the chain carriers when the survey for the purpose of a division was made. That a dividing line was run from the back line towards the river. They both think, that a marked line to which they were conducted in the presence of the parties, and of James Hough, the surveyor, was the line which was then run. Their opinion is founded on the continguity of the corner which was shown to them as the beginning, to a branch which is near it, and which they think they recollect. The line was run about twenty years before they gave their depositions, which was in 1818, and they do not know whether the line now shown them is the true line or not. Other testimony shows, that it cannot be the true line. The surveyor proves, that the marked tree shown as the beginning, had not, in 1821, been marked more than seven or eight years; and all the testimony in the cause proves, that the line ran through James Dunlap's orchard, and that he himself frequently said so. The line now claimed by him, and supposed by the Stephensons to be the true line, would not come 'near his orchard. It is apparent, then, that this line has been made long since the division, and there is some reason to suppose it was made by James Dunlap, who occupied Alcxander's moiety of the tract. The place established by the Court as the beginning, is a white oak and blue oak, standing in the western line of the tract, and marked as a córner. Being in the line, there could be no reason for marking them as a corner unless such had been the fact, and the trees could be a corner only between the Dunlaps. The surveyor cut a block out of the ash, including one of the chops, and found, from marks which are considered as unerring, that the chop had been made twenty-one years; that is, there were twenty-one year's growth over it. This was in December, 1718. The chop might have been made in the autumn of 1797, or the spring of 1798. The dividing line is supposed to have been run in 1798. A line from this point to the river, so as to divide the tract equally, passes through James Dunlap's orchard, and leaves rather more of it on the side of John than would be left by the line which James Dunlap had admitted. This line is established by the decree of the Court. The testimony is, we think, in its favour, and that there is no error in the decree. It is affirmed, with costs. 1827. Dunlap V. Dunlap. 1827. M'Connell V. The Town of [LOCAL LAW.] Lexington. M'CONNELL against THE TRUSTEES OF THE TOWN OF LEX INGTON. Feb. 12th. Feb. 22d. A question in equity as to the title to a lot of land in the town of Lexington, Kentucky, reserved as public property, and claimed as having been appropriated by the plaintiff's ancestor. Bill dismissed under the circumstances of the case. This cause was argued by Mr. Rowan for the plaintiff, and by Mr. Talbot for the defendant. Mr. Chief Justice MARSHALL delivered the opinion of the Court. This suit was brought in the Court of the United States for the Seventh Circuit and District of Kentucky, against the trustees of the town of Lexington, and others, to obtain a conveyance of in and out lots, No. 43, in that town, or of such other lots in lieu of them as might still remain to be conveyed, by the trustees. The whole of out lot No. 43, and a part of the in lot, had been conveyed to other persons who had been in possession for such a length of time as to bar the plaintiff's action. The bill was, therefore, dismissed by the plaintiff as against those defendants, and continued against the trustees. The commonwealth of Virginia had, in 1773, by an act commonly called "the land law," reserved 640 acres of land for the benefit of those who had settled in a village or station, that it might be afterwards laid out into lots for a town, and divided among such settlers. The inhabitants of Lexington purchased 70 acres adjoining the reserve of 640 acres, and after laying the whole off in lots and streets, petitioned the assembly to establish a town. The legislature, in May, 1782, passed an act, vesting the whole 710 acres in trustees, who were empowered to make conveyances to those persons who had already settled on the said lots, as also to the purchasers of lots theretofore sold; and to lay off |