
    *Johnson v. Buffington.
    October Term, 1795.
    Land — Quantity —Variance between Warrant and Survcy.-- it is no objection to the title, that the survey contains- more land than the quantity specified in the warrant.
    Construction of Statute — Northern Neck. — The Act of 1785, c. 47, relates merely to the unappropriated lands within the Northern Neck, and therefore it does not authorize the granting' of lands for which warrants were issued by the Proprietor, although they were liable to forfeiture by the rules of the office, unless the Proprietor had shown an intention to take advantage of the forfeiture. Such titles were confirmed by the Act of 1786, c. 3. But this law does not authorise the Register to make grants in cases where warrants had been previously issued by lord Fairfax to other persons.
    This was an appeal from the High Court of Chancery, affirming a decree of the County Court of Hampshire, wherein the appellee was plaintiff. The case was as follows: Peter Peters in the year 1753, obtained from the Lord Proprietor of the Northern Neck, a warrant to survey a tract of land within that District, which by his direction was surveyed for a certain Frederick Unrod, an indented servant of the said Peters’s; but by the mistake of said surveyor, (as the bill charges,) he was called Vinegard instead of Onrod. No patent was obtained from the Proprietor in the lifetime of Unrod, who died many years ago, leaving a son Jacob, then an infant, who was by his mother sent into Pennsylvania, and there bound out an apprentice; he resided in that state always afterwards, and sold his right to Buffington in 1770.
    Johnson made an entry with the surveyor, for 219 acres, part of this land, under the act of 1783, and having obtained a patent from the Register’s office in 1789, brought an ejectment against Buffington, and recovered a judgment. The prayer of the bill was for an injunction, and for a conveyance, both of which were decreed by the County Court, from which an appeal was granted to the High Court of Chancery. That court being of opinion, that the equitable right of the appellee to the land in controversy, derived'to him from the heir at law of the person for whom the land had been surveyed, was preserved by the acts of 1786, 1788, and 1790, and consequently was not subject to the entry and location of the appellant which was posterior to the survey, affirmed the decree of the County Court from which an appeal was prayed to this court.
    Lee for the appellant.
    Whether in a case like the present, a Court of Equity will interfere, and take from Johnson his legal title is an important question. The decree seems bottomed upon an opinion, that the equitable right of Buffington was revived and preserved by the act of Assembly passed in 1786, Ch. 3, and the subsequent act continuing the operation of that law. But before I consider the operation of those laws, X will premise some objections against the interference of the Court of ^Chancery. In the first place, the warrant has not been so complied with as to entitle the party to claim a grant. The warrant was to survey 300 acres of land, instead of which, a plat for 450 acres was returned. Though this objection would have been done away, had lord Fairfax made a grant, it is now in full force where an application is made to this court to compel a conveyance. The warrant was not pursued in another instance; the length and breadth of the tract as delineated in the plat, do not bear that proportion to each other, which the warrant required. Neither are the names of the chain carriers inserted, in the survey. . These objections, when considered together with the neglect of Unrod and Buffington, in not perfecting-this dormant title, are sufficient to deprive the appellee of the aid of a Court of Equity. It may also be seriously questioned, whether Vinegard in whose name the survey -was. made, is the same person as Unrod, and if’ so, there is an outstanding title in Unrod which Vinegard could not transfer to-Buffington.
    I come now to consider the acts of Assembly. The first which passed upon this subject was in 1785, Ch. 47. The 4th section, after reciting, that since the death of the Proprietor of the Northern Neck, no mode-had been adopted to enable persons having-made entries before or since his death to obtain titles for the same, declares, “that where any surveys have been heretofore-made, or hereafter shall be made under entries made in the life of the said Proprietor, or under entries made with the survey or of any county, under the act of Assembly aforesaid, and which have been returned to the said Proprietary office, or shall hereafter be-returned to the Register’s office, the Register shall make out grants therefor, to bear teste under the hand of the Governor and the seal of this Commonwealth, in the same manner as is by law directed in cases of other unappropriated lands; and the surveyors with whom such entries have been made, are hereby directed and empowered, to proceed to survey and record the same, and to make return of such surveys to the Register’s office, in the same manner, and within the same time as is or shall be directed in cases of warrants issued for other unappropriated lands within this Commonwealth, and thereupon grants shall issue in the manner herein before directed.”
    This law is to be construed either in a general or in a restrained sense. I contend for the latter, because of the inconvenience which *would arise, if it were considered as intended to set up obsolete claims not carried into’ grant, and which were forfeited by the rules of the Proprietor’s office; but more especially, in cases, where such claims would by relation, destroy posterior grants. The inconvenience, which the preamble of that law states, is, that by the death of lord Fairfax, many, persons who had’ made surveys upon warrants issued from the Proprietor’s office, could not obtain’ grants. The intention of the legislature was to provide a remedy, not for those who had forfeited their titles by a non-compliance with the rules of the office, but for those, who by the death of lord Fairfax, had been prevented from obtaining grants, upon entries made with the surveyors, under the act of 1782, Ch. 33, § 3, which enacts, ‘ ‘that all entries made with the surveyors of the counties within the Northern Neck, and returned to the office, formerly kept by the said Thomas Lord Fairfax, shall be held, deemed and taken as good and valid in law as those heretofore made under the direction of the said Thomas Lord Fairfax, until some mode shall be taken up and adopted by the General Assembly concerning the territory of the Northern Neck.” The act of 1786, Ch. 3, relates entirely to surveys thereafter to be returned. The words of the law are, ‘that the owners of entries for lands within the District of the Northern Neck regularly made before the 17th day of October in the year of our lord 1785, shall proceed to survey the same, which surveys, together with those airead}’- made upon like entries, shall be returned into the register’s office, on or before the 1st day of October 1788, and on failure, such entries are hereby declared void, and the lands liable to be located in the same manner, as other unappropriated lands within the said District.”
    If the legislature intended to give validity to claims which had been forfeited and entirely gone, so as to do away posterior rights fairly and legally acquired, I should question very much the validity of such a law. But the legislature is not to be presumed to have intended an act so fraught with iniquity, and therefore, to avoid such a conclusion, the court will give to the law the limited construction for which I contend.
    Williams for the appellee.
    -Whatever exposition the court may incline to give to the different acts of Assembly, yet I contend that Johnson can derive no right under them. The question is between Johnson, whose title is acquired under the legislature of Virginia, and Buffington claiming under the Proprietor. ^Though lord Fairfax should be admitted to
    have possessed a right of availing himself of the supposed forfeiture cocasioned by Buffington’s not complying with the rules of the office, yet as he never did any act evincing such an intention, (as by making a grant to some other person,) the argument respecting the forfeiture cannot avail the appellant. The legislature could not by any law dispose of the rights of lord Fairfax, any more than they could dispose of the rights of other individuals, and consequently, Johnson, not claiming under lord Fairfax, cannot set up a title to destroy one derived under him, and still subsisting. Again, admitting a right in the legislature to dispose of the property of lord Fairfax, the act of 1782, which is the source, from which the in-ceptive right of Johnson flows, does not warrant the title which he now sets up. That act, provides a mode by which a right to the unappropriated lands in the Northern Neck might be acquired. But the land in question had been previously appropriated by lord Fairfax, who, had a right to wave the forfeiture if he pleased. Indeed I do not think he could have availed himself of it, since Unrod was an infant at the death of his father, and always afterwards resided out of this state.
    I admit that where the equity is equal, and one of the parties has also the law in his favor, he shall prevail. But if the legal title has been obtained by fraud, or, as in this case, by taking an advantage of one labouring under a legal disability, he will not have the benefit of this advantage.
    As to the identity of Unrod, I consider it to be fully established by the evidence. The objection to the variance between the-warrant and the survey could only be a question between lord Fairfax and Unrod, not between the appellant, who claims under the commonwealth, and the appellee claiming under lord Fairfax.
    The construction given to the act of 1785 by Mr. Lee, seems to me to be a very unreasonable one. For if the legislature considered entries not surveyed as worthy of being saved from forfeiture, a fortiori, they would save title still nearer a state of perfection, namely, entries then actually surveyed.
    Lee in reply. If it be true, that the appellant could derive no title under the legislature of Virginia, the application to a Court of Equity was unnecessary, since he might have effectually defended himself at law; and therefore the court should have dismissed the bill.
    *The possession of Buffington, is by no means a continuation of Un-rod’s possession. He was an unauthorised occupant of the land, and being there he purchased up this obsolete claim of Unrod’s, in order to bolster up a right founded merely in possession.
    
      
       Land — Quantity — Variance between Warrant and Survey . — The principal case is cited with approval in Taylor v. Brown. 5 Cranch 252. 254, 256.
      Entry — When Notice to Subsequent Locator.— In M’Ciung v. Hughes, 5 Rand. 47Í), the court said: “Upon examining all the cases decided in the court of appeals which are reported, and which touch these questions, 1 do not think that the proposition said in Bodley v. Taylor, to have been decided in Virginia, whilst Kentucky was apart of the state, that an entry was a notice to a subsequent locator, which tainted his legal title founded upon a prior patent, with fraud, was ever so decided in this court. The only case, which seems at first view to have established that proposition, is that of Johnson r. Bui Jtnqton, 2 Wash, 116. which, as reported, seems lo justify the proposition above stated. But. upon an examination of the original record, it will be found, that this report is entirely erroneous; and that the subsequent locator, who procured the iirst patent, had actual notice, and was guilty of gross fraud.”
      Equity Jurisdiction- Issuance oi Patent —Actual Fraud. — Equity has jurisdiction, after the issuing of the patent, in a case of actual fraud, although no caveat was filed, and no reason assigned for the failure. M’Clung v. Hughes, 5 Rand. 489, citing the principal case: White v. Jones, 1 Wash. 116.
      The principal case is cited in Noland v. Cromwell, 4 Munf. 169, 172: M’Clung v. Hughes, 5 Rand. 481. See foot-note to Burnsides v. Reid, 2 Wash. 43.
      Northern Neck — Title of Lord Fairfax. — The principal caséis cited in foot-note to Picket v. Dowdall, 2 Wash. 106.
      Same — Equitable Title to Land in. — The principal case is cited in foot-note to Picket v. Dowdall, 2 Wash. 106.
    
    
      
       October 1782, C. 33.
    
   FLEMING, J.

After stating the case proceeded ; the first objection made by the counsel for the appellant, was, that the survey did not pursue the warrant. But I think there is no weight in this, as the variance is only in the quantity. If the land had been imperfectly described, it might have been fatal.

The second objection was, that the act of 1785 only respected cases where surveys had not been made. I am clearly of opinion, that this act, notwithstanding the title of it, relates as well to entries as surveys, and comprehends the present case. Unrod (who I am satisfied is the same person as Vine-gard) most certainly forfeited his right to a grant, if lord Fairfax had evinced an intention of availing himself of it, but not having done so, the land is to be considered as appropriated, and therefore, could not be regranted by the Commonwealth under the act of 1785.

CARRINGTON, J.

I have no doubt but that Unrod and Vinegard are the same persons, nor do I consider the variance between the warrant and survey, as to the quantity as being of any consequence. The title of Unrod was prior to that of Johnson, and since it was not defeated by any act of lord Fairfax in taking advantage of the forfeiture, the land could not be considered as unappropriated, and as such subject to be granted under the act of 1785.

The PRESIDENT. — I feel no difficulty about the variance in the name of Unrod, nor in the quantity of land. According to the decision in the case of Pickec and Dowdall, it follows, that the right of Unrod was liable to forfeiture by the failure to apply for a grant within the time limited by the rules of the office, and by the nonpayment of the composition and office fees. But as lord Fairfax did no act manifesting

an intention to avail himself of the forfeiture, the title of Unrod rested upon his survey until 1786, and was confirmed by that act, which limited no time for the payment of the composition and fees. The act of 1786 relates, 1st, to entries ; 2dly, to surveys not returned ; and 3dly, to surveys returned, and ungrauted. The act of 1788, Ch. 20, continues that of 1786, as to entries and surveys, and comprehends the three branches of the latter law.

*Mr. Lee contended that the construction of the act of 1786 might be either extended or narrowed, and supposed that the latter was most consistent with the justice of the case, and the intention of the legislature. My opinion is directly otherwise; and in this particular case, I should feel very little disposed to narrow the construction, when I consider that Unrod was an infant for many years after the death of his ancestor, and that he resided during that time and afterwards, out of this state. It is immaterial to decide whether the commonwealth did, or did not succeed to the rights of the Proprietor, in cases of un-granted lands. If she did, yet no advantage has been taken of the forfeiture by her. If she did not succeed to them, then, the land was legally appropriated by lord Fairfax, and consequently could not under the act of 1785 be granted to any other person.

Decree affirmed.  