
    SPEED vs. LEWIS.
    The'urifdlc tion ¿id by Courts of chan-eery, m relation land titles, is governed tute^ under which thofe ti-tiesare derived,
    rindple^of 'e' dity, in reíation to crufts, is not applicable.
    SPEED filed his bill in chancery, against Lewis, in which he claimed certain land, by virtue of an entry, madeon the 23d day of December 1782, for 14,000 acres* j\,ew;s held the elder patent for 1000 acres of this land; obtained by virtue or an elder entry. On the hearing this cause, in the Fayette circuit court, that court were °pmion, that Speedls entry was sufficiently sup* ported by proof, and properly covered the land in question. They were also of opinion, that Lewis’s entry was su®cientty supported by proof, and was erroneously surveyed ; but that when surveyed according to entry, it would cover other Iarid within Speed’s entry and patent* The decree then proceeds as follows s
    
      AnyW ”¿fe ⅛' f-d in tne proof
    ⅛⅛⅞,⅛ want or definite defcnpti.
    j,re™ Í ⅛,* called í>y a par-ncular name^'5 "tu^V& r"C"áiie<l in -.782,
    tee
    This court will not decree a conveyance of the land Improperly included in the defendant’s survey, without also decreeing to the defendant, the land which would have been included, had the survey of the defendant been made as above directed. The complainant, by his counsel, refusing to take a decree for the land impr.o-perly surveyed for the defendant,,as aforesaid, upon the terms aforesaid,” his bill was dismissed with costs; From which decree, he appealed. , , .
    The arguments on the other parts of the cause, reía-ted to the sufficiency of the proof. On this poiht, they were as follow : .... .
    
      Allen, for the appellant ().
    If the court should be of opinion, that the proofs sufficiently establish the calk of both entries, the question on which the inferior court decided, will arise. , , .
    , , . The parties each claim under the statutes relating to land titles. ÍS very one who claims under ¿ statute, must bring himself within its provisions; By the provisions of our land law, a survey must conform to the entry, if it do not, it can derive no aid from the entry. But jLewis has not made his survey conformably to his entry ; and therefore, he has not brought himself within the provisions of those laws; He can,, therefore, derive no aid from his entry, but must hold by his patent only. And Speed’s entry, being elder than Lewis’s patent, must take the land. . . .
    . That the rights to conflicting land tides áre governed by this rule, and not by analogy to private contracts, has been, in substance, decided in the case of Craig and 0-ihers vs. Pelham (). Special entries áre required by law, for the purpose of giving notice to subsequent lp-cators, of the land intended to be secured. But in the above case, where the subsequent locator had notice,. in fact, of the land intended to be secured, it was held insufficient ; and that if the entry was not special in itself; the proprietor could nó¡t hold land under it. The possibility of bringing the decisions of the court into a .circle, in three cases, for the same latid, tyhich is. mentioned in that casé, might exist Here-. l| you say Lewis shall prevail in this suit, because we hold the land their entry covers, a special entry, yottoger than either, which will only cover the land surveyedby Lewis, wilLtake the land from him, because of his erroneous survey: after which, We can recover the land from the latter claimant, because we have the elder entry for it. We will then be where we started, and the right to the land undecided.
    
      Clay, for the appellee.
    This branch of the cause depends Upon the question, whether the courts of chancery hold cognizance of suits in relation to land titles, as a legal, or ás án equitable jurisdiction. Whether it is to be governed by legal principles only, or by the principles of general equity, which are applicable to trusts generally. An elder patentee must be considered a trustee, where there is a superior equity. But where there is not a superior equity, or where he can rebut that equity, lie can conscientiously hold the land.
    This trust must be governed by the same rules that would govern cases where two men contract with a third land-holder, for land. If the one making the youngest purchase, obtains a conveyance of the land which he knew the other had theretofore contracted for, it is'against conscience, and he must convey to the first purchaser. The entry books ate the places where this knowledge Of these contracts is to be acquired. If in such a casé, the first purchaser were fairly, but through mistake, to procure a conveyance for land different from that which he had contracted for, the proprietor could not take it from him, without conveying that which he contracted for; because it would be iniquitous that he should hold both. But if a third person, who had purchased the land thus conveyed, and no more, between the contract and Conveyance, were to contest the right of the grantee, he would prevail, without making any remuneration ; because he had done no wrong, and received no more than what he had fairly contracted and paid lor. But if this younger purchaser, kno wing of the contract Of the former, Were to contract for the sártie land, and so much more as to include die land subsequently conveyed ; and then come into equity, and ask a conveyance from the first grantee, when he held the land the grantee had contracted for ; equity would say to him, **■ Ton must do equity before you can receive it; as you hold the land the first grántee contracted for, you ought not to complain that he did not take a conveyance of the same land he contracted for; if he had done so, it Would have equally taken land out of yó'ür purchase, and hjfe being the prior purchaser roust prevail. You cannot ask from him, laud, because you made the first contract for it, while you held land which he made the first contract for ; or if you, do claim it, you cannot succeed, unless you will convey to him the Japd which he first con. tracted for.”
    Such is the language of equity, applied to individual contracts, And the acquisition of land titles from the state, ought not to he governed by different rules. If I could not succeed, in equity, against a person, when we had made conflicting purchases from an individual, it cannot alter, the case, that those purchases were made from the state.
    Making an entry, is the completion of a contract for a particular spot ; if the entry be a good one, it is notice to all the world ; if it is not good, it is not notice.
    Speed cannot say, that his ,entry was for 14,000.acres, and that, therefore, he is entitled to that quantity. By-making an. entry which, covered 1000 acres, theretofore entered by Lewis, Speed could only acquire an equitable claim to 13,000 ; he could not thus acquire any equity to land then appropriated.
    An erroneous, survey never is intended in fact, and never ought in law, to be consideredan.abandonment of a claim to the land. It is the mistaken method taken tp perfect a right to the land, and is oftener the mistake of the surveyor than of the party ; for it is the duty of the surveyor, to make the survey in conformity to the entry. Fraud cannot ip these eases, generally, nor in this, in particular, be suspected. The party had no inducement to surrender the ground coyered by his entry, for other land.
    It is also to b,e recollected, that Speed was the complainant below, and that equity frequently seizes this situation to compel a party to do that complete justice,, which she would not otherwise attempt to enforce. The principle I contend for, if once established, will favor the old settlements and pre-emptions, the most meritorious claims in our country ; which, haying been in part erroneously surveyed, have been swallowed up by thp young, but large, sweeping entries of the speculators.
    I know of no case decided against this doctrine. Th/e case of Craig and others vs. Pelham, turned on another point; and as much as a person may be amused by the ingenuity displayed in the imaginary circle of decisions there put, he must see its fallacy, when he recollects that a conveyance follows an adjudication, on conflicting titles ; and that the successful party holds the two titles United', to contend against a third. This ⅛ also a complete answer to Mr. Allen’s imaginary cases.
    The case of Ward vs. Fox’s heirs, Hughes 214, shews, that general principles of equity, and not those only, derived under the land law, may and will govern conflicting land titles.
    
    Allen, in reply,
    was stopped by the court, when he came to this point in the argument.
    
      
      
        (a) May 23rd.
      
    
    
      
      (b) Pr. Dec. 285.
    
    
      
       See obiervations made in this part of the caufe, repotted in a note to cafe of Craig and Mofby vs. Cogar, ante 388.
    
   The Chief Justice, after consulting the other judges, stated that it was unnecessary for him to say any thing further on that point.

The opinion of the .court, delivered by.him a few days afterwards, was as follows This is a contest for land, óf the usual kind, each party claiming under a distinct title, derived from the commonwealth of Virginia. It is proper, first, to examine into the validity of Speed’s entry, he béing complainant in the original suit. It is in these words :

“December 23d 1782, James Speed enters 14,000 acres of land, on seven treasury warrants, lying on thé N. E. side of Gist’s creek, beginning at the lower corner of Al. Lithgrow’s pre-emption on the N. E. on the N. E. side of said creek, and running upwards with Lith-grow’s line, to the line of Charles Morgan’s pre-emption ; thence upwards with Morgan’s line, to his upper cornér on said creek ; thence continuing up said creek, and binding thereon, to the mouth of Turkey run, which j-un falls into Gist’s creek, about two miles above Morgan’s cabin, on the opposite side ; then funning up Turkey run, taking in its waters to the head thereof; then extending from the head of said run, and from the beginning, ánorth-westwardly course for quantity.”

Speed’s entry calling for Al. Lithgrow’s and Charles Morgan’s pre-emptions, their entries must also be considered as component parts of his entry. They are as follow : ....

“ October 10th 1780, Al. Lithgrow enters a pre-emption warrant of Í0ÓÓ acres, on the west fork of Licking, below an improvement, adjoining a pre-emption warrant of John Morgan’s on the same, running down both sides of the same for quantity, including his improvement.”

May 11th 1780, “ Charles Morgan, heir, &c. enters 1000 aeres upon a pre-emption warrant, on the most east-wardly branch of Stoner’s fork of Licking, near the head thereof, including a spring known by the name of Morgan’s spring, and his cabin.”

These entries were all made before either of them appears to have been surveyed. Morgan’s pre-emption is called for in both of the other entries, and therefore his entry shall be attended to in the first place.

It is believed, that Stoner’s fork of Licking was commonly known by that name, at, and before the date of Morgan’s entry ; and the water course exhibited on the connected plat, is also believed to be the most eastwardly branch of Stoner’s fork. The expression, “ near the head thereof,” is too general to help the entry, unless it is aided by the expressions, “ including a spring known by the name of Morgan’s spring, and his cabin.” The proof, as to the spring, is not very particular; but a cabin is shewn, and proven to have been generally known and called Morgan’s cabin, or John Morgan’s cabin, at the date of tips éntry.

But it must be remarked, that the words of the entry are, “ Charles Morgan’s cabin, heir, &c.” which implies, that he derived his claim to the cabin intended, from some deceased relative ; and it may be presumed, that-the name of this relative was Morgan; but certainly it would be extending the presumption too far, to admit it as sufficient evidence that the given name of the person was J ohn. Indeed this relative might have purchased a right to the cabin, and a pre-emption for making it, from a person pot of the name of Morgan.

Therefore, it seems to this court, that the cabin meant by the entry, is not satisfactorily identified; and that the testimony in the cause, which very amply establishes the notoriety of John Morgan’s cabin, cannot safely be applied to the cabin in question ; or, in other words, it does not prove that John Morgan’s cabin is the one meant in this entry. The consequence is, that Morgan’s entry, which at first view appeared to be the main §Upport of Speed’s entry, is not itself supported.

As to Lithgrpw’s entry, it seems to be unintelligible j at least, it is very vague and indefinite in itself, and is rendered still more so, by the defects in Morgaños entry. It may be true, that this pre-emption is on the westward’ ly fork of Licking ; but, to say the most, the cad for the west fork of Licking, can only be taken as general description ; and the entry only particularly expresses, that it is “below an improvement, adjoining a pre-emption warrant of John Morgan’s which, taken the most favorably, does not point opt what improvement it was to lie below ; nor does it point out which side of John, Morgan’s pre-emption was intended.

The expressions. “ running down both sides of the same (foe west fork) including his improvement,” might have been effectual, had the identity and notoriety gf John Morgan’s pre-emption and Lithgrow’s improvement, been proven. Rut this has not been done.. It is not even shewn that John Morgan ever obtained a pre-. emption ; it is. only proven, that in the year 1776, he built a cabin, which, by the land law of 1779, entitled him to claim,a pre-emption.

After having thus examined Morgan’s and Lith-grow’s entries, and found them insufficient to support Speed’s entry, which, is connected with them, there are only two other calls in Speed’s entry deserving of particular notice, to wit : “ Gist’s creek and Turkey run, which run falls into Gist’s creek about two miles above Morgan’s cabin, on the opposite side.” If Morgan’s cabin called for in this entry, had been ascertained, it might aid both of these calls ; and, on the other hand, these calls may aid in ascertaining the cabin intended.

It is proven that what is now generally known by the name of Stoner, was formerly, sometimes, called Sto-ner’s fork, and sometimes Gist’s creek. The expression “ Gist’s creek,” therefore, might be considered as, a good general description, if the proof had gone as far with respect to Turkey run ; but at most, it only appears, from the surveyor’s report, that there is ⅜ run emptying into Stoner’s fork, which is now called Turkey run but there is no proof that it was generally known by that name, at the time Speed’s entry was made. This being the last hope of identifying Charles Morgan’s cabin, in- . tended in Speed’s entry, the conclusion must be, that his entry cannot be sustained ; and consequently, that tile circuit court for the county of Fayette, waá correct ■ili dismissing his bill. '

But this court is not prepared, nor is it necessary, to decide, (further than what is implied in the foregoing Opinion) that the reasons on which the dismissal was founded, áre correct : there may be sufficient reasons for a decree, which are not stated ; dnd those only maybe stated, w hich are not sufficient.

Wheréforé, it is decreed and ordered, that the said decree of the circuit court aforesaid, as to the dismission of the bill, with costs, be affirmed ; and that the appellant do pay unto the appellee, his costs in this behalf expended. Which is ordered to be certified to said court.  