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BODLEY

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even a caveat, or at least a suit in chancery, would have relieved him. Can they be injured by not obtaining, from this neglect, that which both law and justice would have taken from them? The defendant has in fact the eldest equity as well as the eldest patent.

3. The third ground of the defendant's equity is, that the complainants have gotten better land belonging, as they say, to the defendant, and, therefore, have suffered no injury: that they are bound by their acquiescence; and that it would be unjust to make an exchange now, as it would deprive the defendant of his old patent, and, possibly, involve him in more litigation.

The following cases were cited in behalf of the original defendant, viz.

On the question upon the construction of the entries:

Hughes's Rep. 110. 124. Kenny v. Whitledge. Hughes's Rep. 14, 15. Pawling v. Mereweather. MS. Johnson v. Naul. MS. Jones v. Craig. Hughes's Rep. Jackson & Owens v. Whitaker & Wife, and Ward v. Kenton & Fox. MS. Speed v. Lewis. MS. Drake v. Rumney. Hughes's Rep. Ramsay & Logie v. Drake. Bryant v. Owens & Wallace. Sneed's Rep. 9. Wilson v. Speed. Id. 396. Frazier v. Steele.

And upon the question of jurisdiction: Hughes's Rep. 2. 181. 1 Wash. 116. 2 Wash. 48.

Argument for the original complainants.

All the good lands in Kentucky are subject to at least two contending entries. In this case Taylor had the first entry, but Bodley had the first survey.

As to the question of jurisdiction, it has been long settled as a good ground of equity that the de

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fendant had obtained a legal title to which the plain- BODLEY tiff had a prior or better equity; and a court of law could not sustain an equitable against a legal title.

If the plaintiff shows an equitable title, the defendant must not only show his legal title, but he must support it by an equity equal at least to that of the plaintiff; for in equity the legal estate stands for nothing. Sneed's Rep. 43. 46, 47. Quarles v. Brown. Consella v. Briscow. Swearingen v. Briscow. 1 Wash. 230. Hughes's Rep 53. Fry v. Ezra. Id. 88. 92. Smith v. Evans, Id. 110. Greenup v. Coburn. Sneed's Rep. 32. South v. Bowles. Id. 52. Bradford v. Allen. Id. 130. Bruce v.

Taylor might have had a remedy by caveat if he would. But the remedy by caveat is only a concurrent remedy. It is not a remedy which can apply to all cases. A man may not know of a survey in time to enter his caveat.

The neglect of the process by caveat is no bar to relief in equity. Harwood v. Gibbons, MS. Myers v. Speed, Hughes's Rep. 97. Kenton v. M'Connell, Hughes's Rep. 140. Picket v. Bib, MS.

If the court has jurisdiction, the next question is, whether the complainants' entry is legal and sufficiently certain.

Two questions arise respecting every entry: 1. Is it sufficiently specific? 2. Is the same land surveyed which is described in the entry?

It is sufficiently specific if the land can be found by a reasonable search. At the time of the complainants' entry, nothing was more notorious in Kentucky than a lick and a buffalo-road. There is a difference where a distance is mentioned only to lead you to a part of the country where you will find a specific object which is described as the be

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ginning of a tract; and where the beginning is at the end of a particular line.

There must always be a general description, and a particular description.

It was not necessary that the marked trees should be notorious. You would be led to them by a reference to notorious objects, the blue licks, and the buffalo-road. Greenup v. Coburn, Hughes's Rep. 104. Carter v., Hughes's Rep. 182. Johnson v. Brown, Hughes's Rep. 60. Sneed's Rep. 105.

If the complainants' entry be sufficiently certain, the next question is as to that of the defendant.

The defendant's entry depends upon John Walden's, which depends upon Ambrose Walden's, which depends upon Peter Johnson's. If Peter Johnson's be uncertain, the rest are uncertain.

Peter Johnson's 400 acres, being his settlement right, were to lie on the east side of the upper buffalo-road, and nine miles from the licks.

The beginning of the tract was to be nine miles from the lick, not the middle of the tract. The question then is, how is the survey to be made? Are you to follow the meanders of the road to ascertain the nine miles, or to take a point nine miles distant from the lick on a straight line? Are you to follow the road in running, the lines of the survey? It would be impossible to be accurate as to the meanders of the road. The buffaloes make generally a number of paths not parallel to each other, sometimes approaching and again diverging, sometimes occupying a broad space which is all called the road; and they often meander so much, that after travelling nine miles you may not be a mile distant from the place of beginning. A distance upon a water-course is always measured in a straight line, without regard to the meanders of the

stream. So we say it ought to be understood when speaking of a buffalo-road.

The whole of Peter Johnson's 1,400 acres were to lie on the east side of the road; but the claimant below has placed part of it on the west side.

The proper mode of surveying Peter Johnson's claim is to begin at the end of nine miles upon a straight line, and so make the whole survey on the east side of the road in the form of a square, making the general course of the road the base line of the survey.

But Ambrose Walden's land could not be bounded by a mere right of pre-emption, which was undefined, unlocated, and might never be carried into effect. It was a mere possibility. There must be an entry of a pre-emption before it can be considered as located, and until it be located it cannot be surveyed. Porter v. Gass, Sneed's Rep. The case of Kenny v. Whitledge applies only to village rights. Patrick v. Woods, Hughes's Rep. Sneed's Rep.

330. 336. 270.

If it could not adjoin the pre-emption right, neither could it adjoin the settlement right, because the call was to join the 1.400 acre tract claimed by Peter Johnson, and not his 400 acre tract.

The defendant has lost his right to the land contained in his entry, by making his survey contrary to his location. When the survey is made, although erroneously, it is an execution of the warant, and puts an end to the entry as such. The warrant, as well as the entry, is functus officio.

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In these cases a tourt of chancery does not act upon equitable prificiples only, but is merely to decide which party has the legal right to the patent. It is only a chancery form of deciding a legal right. The court cannot require the complainants to give up to the defendant the land which the de

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fendant might have surveyed under his entry, but which he failed to survey in proper time. It is not true in principle that the defendant is entitled to get his land somewhere; he did not purchase with that understanding. The state did not so contract.

When a man surveys contrary to his location he loses his equity. These are statutory rights, and therefore to be decided strictly according to the statute. An entry is a legal right; it descends to heirs; it is subject to execution; it may be sold and transferred. These points have all been decided by the courts of Kentucky.

P. B. Key, in reply.

There cannot be two valid entries of the same land at the same time.

When a first entry is forfeited the land is again waste and unappropriated; and not till then can a second entry of the same land be valid. A second entry made while the first was valid is void.

If Taylor's entry was valid, it gave a legal right, descendible, &c. The land was no longer waste and unappropriated or vacant. The entry of the complainants, while Taylor's entry was in force, was a nullity, and gave them no right either at law or in equity.

February 27th, 1807.

MARSHALL, Ch. J. The court has been able to form an opinion as to a part only of this case.

That the court as a court of chancery has jurisdiction of such cases, is a point established by a long course of practice in Virginia and in Kentucky; but in the exercise of that jurisdiction, it will proceed according to the principles of equity. In such case, a prior entry will be considered as notice to him

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