
    Johnson v. Brown.
    [Tuesday, October 19, 1802.]
    Equity — Maxim.—where equity is equal, the law must prevail.
    Same — Equitable Relief — Caveat.—If A. have such an equity as would, on a caveat prior to the errant, have entitled him to a preference, it would be no grround for a bill to set aside the patent, unless he was prevented by fraud, or accident, from prosecuting' a caveat.
    Lands — Legal Title — Entry.—The entry is not a legal title; but is only the first step towards acquiring wagte lands.
    Same — Same—Survey.—The survey is only a progressive legal step, but it is the grant only, which passes the legal title.
    Same — Presumption—Notice by Surveyor. — There are periods after which the Court will presume notice by the Surveyor, and a dereliction of the entry, by the party.
    Same — Evidence—Survey—Surveyor’s Deposition. — A, survey annexed to the record, and not excepted to in the Court below, will be considered as admissi-' ble evidence in this Court: The more especially, if accompanied by the Surveyor’s deposition.
    Same — Entry — V agueness — Quiere. — Whether the entry in this case was too vague?
    Same — Rights of Subsequent Locator. — If the lands surveyed be not within the description of the entry, a subsequent locator shall not be postponed, by the lands thus surveyed at a time future to his entry and survey, especially if he has obtained a grant.
    This was an appeal from a decree of the High Court of Chancery. The bill states, that, on the 20th of November, 1749, William Davies, for his father Robert Davies, entered with Thomas Dewis, Surveyor of Augusta county, for 300 acres of land between his father’s land and the widow Bell’s. That on the 29th of August, 1753, Robert Davies sold the entrjr to J. Phillips; from whose son and heir, the plaintiff purchased it on the 23d of May, 1789. And on the 12th of October, 1789, William Davies also assigned it to the plaintiff, for the consideration of 41. 10s. That the entry being surveyed, and the plat returned into the Band Office, a patent issued thereon June 9th, 1792. That John" Brown, in 1753, entered with the same Surveyor, 230 acres of land, comprehending *190 acres of that above mentioned; and, in 1783, a patent for the same was obtained by his heir or devisee, from whom the bill prays a conveyance. The answer says, that two surveys cannot be made on one entry; that, if the plaintiff’s survey had pursued the entry, it must have gone through patented lands: that the entry is too vague: That the plaintiff’s survey was forfeited, and could not regularly have been surveyed, when it was.
    There are several depositions with regard to the plaintiff’s purchase; and the deposition of Poage a Surveyor, stating that he had run certain lines; and annexing a plat comprehending the lands in controversy.
    The Court of Chancery decreed in favour of Brown; and thereupon, Johnson appealed to this Court.
    Randolph, for the appellant.
    The government could not have defeated Johnson’s right; because, by the act of 1748, all entries were to stand good until notice was given by the Surveyor, on two Court days. Old edit, laws 220, § 20, [c. 19, $ 8, 6 Stat. Barg. 36]. But Brown cannot be in a better situation than the government itself. The vagueness of the entry is not material. For, the officer was satisfied, and all the entries of that day were as vague. The survey agrees with the entry, for a line run from it will touch the widow Bell’s, as the plot exhibited by the appellee shews: But, the plot itself is not authentic, as it was not made under any order of Court.
    Nicholas, contra.
    Having got the first patent, we have the legal right, and the plaintiff shews no equitable title to overthrow it, as there is no charge of any fraud in obtaining it, which there must be, in order to affect the legal title. White v. Jones, 1 Wash. 116. We had no notice of any prior entry, and therefore, our conduct could not *be fraudulent. But the entry is too vague, Hunter v. Hall, 1 Call, 206; and it is not material that- it was under the old law.
    The plot is evidence; for it is proved by the Surveyor; and was not excepted to, in the Court of Chancery. Therefore, no objection to it should be allowed at this time. But, if the plot be received, then it is manifest that Johnson did not pursue the entry in his survey; and, therefore, the survey itself is void as against us. But the entry was abandoned; for the lapse of time was so great, that a relinquishment ought to be presumed. Picket v. Dowdel, 2 Wash. 106. Besides, the evidence proves, that Davies had forgot that he ever made the entry.
    Call, on the same side.
    The entry was too vague, to operate against a subsequent locator, without actual notice: And it will not be material, if no act of Assembly, at that day, required as much precision, as the present laws do. For, the act of 1779, [10 Stat. Barg. 57,] only enacted into a statute, what was a law of equity before, as far as respected a subsequent locator; because it was a principle of general justice, that a vague and indefinite entry, from which no particular portion of land could be ascertained, ought not to prevent, or disappoint, a future locator: Otherwise, every man who wished to make an entry, must have consulted every prior locator, before he could have proceeded; which would have been an intolerable hardship.
    It is under this view, therefore, that we say the entry is void; and not that it is ipso facto nullified against the public, or any other person. For, as agaist the public, the act of 1748, (old edit, law 220,) may have full operation, and yet be void against a subsequent locator, without knowledge of the particular place entered for.
    *This doctrine is attended with no inconvenience; because it was in the power of the first locator to have been more precise, or to have surveyed at an earlier day: Whereas, according to the other idea, an immense space of country might have lain unappropriated half a century, until some prior locator was satisfied.
    Hence it appears, that where there were conflicting entries, precision was as necessary before the act of 1779, as afterwards.
    Bet us examine, then, what has been held an insufficient entry since that act.
    In Hunter v. Hall, 1 Call 206, an entry of 400 acres on the south branch, adjoining Bord Fairfax’s land, at the mouth of Mill Creek, was held insufficient; and yet that entry was fully as certain, as this.
    Field v. Culbreath, 2 Call 547, was not like this: 1. Because it was for all the vacant land between certain lines ; whereas, this is only for 300 acres in an immense space. 2. Because the survey, there, had reduced the location to certainty before the caveat. 3. Because the survey was upon the land described in the entry, and two of the lines actually agreed.
    Upon the ground of precision, therefore, the entry, as against Brown, who was an innocent man, is clearly void, on account of the vagueness of it.
    But the survey does not agree with the entry:
    For, the land surveyed does not lie between those of Robert Davies and the widow Bell; but, it lies behind those of Robert Davies.
    When a man describes a tract of land, as lying between two others, he means, that the body of *it, at least, actually lies between them. A mere corner, or mathematical point, will not satisfy the description. But, in the present case, however, not even a mathematical point lies between them; for, the land surveyed is not comprehended between those described in the entry, but lies behind one, and recedes from both. So that, in the language of one of the Judges, [Byons] in Hunter v. Hall, it may be said, that Davies, when he entered, never expected to find the land he entered for, at the place which has been surveyed.
    
      But the entry was abandoned:
    It was made in 1749, and no survey of the land took place until 1790, upwards of forty years. Therefore, according to Picket v. Dowdel, 2 Wash. 106, it was utterly void against a subsequent locator. For, the rules there laid down, expressly apply to the present case: Because, the warrant of Ivord Fairfax, was like that of the government, and he was as much bound by it. Of course, if the new grant could supersede the old entry and survey there, much more will it supersede a mere entry here.
    But our case is stronger; because there is actual evidence here of the abandonment. For, Perry says that Davies appeared to have no recollection of it; which is a clear proof of his having long since relinquished it; and Moffet says, that Phillips offered to give it for nothing, into a bargain which they were treating about: A clear proof, that he also had abandoned it.
    But, by analogy to the three years after the patent before seating and planting,.the failure to survey, patent, and improve, ought to be held a dereliction: Rise, other locators might have been put to inconvenience, and the public defrauded of the taxes.
    *But, for another reason, the defendant must succeed : For, he has got the legal estate, without any fraud; and his equity is at least equal. Therefore, a Court of Equity will not interpose between two innocent men, but will let the law prevail.
    The survey is evidence; for, the correctness of it has never been impeached before; and an order for a survey is never made without the request of the parties. But Poage swears that it is correct; and as he might have described the situation in words only, without the assistance of. lines, it can never be an objection, that he used lines to make himself better understood. Besides, this is a mere plat, composed of copies from his office; and if the copies could be read, so may the connected plat of them also.
    But, the plaintiff shews no title.
    He does not shew any assignment of the entry from Robert Davies to Phillips, or from William Davies to himself. Neither does he produce any patent, or authority for making the entry.
    Randolph, in reply.
    The record is probably defective. At all events there is reason to presume the assignment and patent to Johnson; and the Court will institute an enquiry to ascertain it. William Davies is stated to have assigned himself, with a knowledge that his father had previously done so. The entry is as certain as most of that day; indeed, it would be precise enough at this. Field v. Culbreath, 2 Call 547. As to the lapse of time, it is no objection, as the act of 1748 preserves the entry, until the Surveyor gives the required notice. In this respect it differs from Picket v. Dowdel; because there was no such law, or private regulation, for the government of Ford Fairfax’s office. But, the doctrine in Johnston v. Buffington, 2 Wash. 116, is in our favor. There was no necessity that the whole land should lie between *the tracts of Davies and Bell; and lines might be so run, as to throw part between them. The analogy contended for, between this and the three years after the patent, cannot be maintained; such a position has never been laid down by the Court in any case. The objections to the evidence of the survey, cannot be obviated; and, upon the whole, the decree is erroneous, and ought to be reversed.
    Cur. adv. vult.
    
      
       Equity — Equitable' Relief — Caveat. — Although a party may be let into a court of equity, on grounds which he could not have used on the trial of a caveat, and which in fact make another case; (in reference to that which he might have availed himself of on such trial) or upon a case suggesting and proving that he. was prevented by fraud or accident from prosecuting his caveat; he is not to be sustained in the court of equity, on such grounds as were, or might have been brought forward on the trial of the caveat. Noland v. Cromwell, 4 Munf. 177, 178, citing the principal case. In this connection the principal case is cited and approved in McClung v. Hughes, 5 Rand. 462, 485; Ross v. Keewood, 2 Munf. 148; Depew v. Howard, 1 Munf. 300; Noland v. Cromwell, 4 Munf. 174, 180; French v. Loyal Co., 5 Leigh 666. But see the principal case cited in Noland v. Cromwell, 4 Munf. 168, 169, et seq., in which Judge Coalter declares the principal case dictum.
      
      See Christian v. Christians, 6 Munf. 534; Lyne v. Jackson, 1 Rand. 114; Whittington v. Christian, 2 Rand. 353.
      In Noland v. Cromwell, 4 Munf. 171, Judge Cabell said; “I have examined, with great attention, all the cases which are supposed to have any bearing on the point, and I conceive it to have been clearly, repeatedly, and solemnly settled, that the legislature having established legal tribunals for deciding disputes prior to the patent, a court of equity cannot interfere but under circumstances making such interposition just and proper. This point presented itself, and was expressly and solemnly decided in the cases of Johnson v. Brown, 3 Call 259, and Depew v. Howard, 1 Munf. 293.”
      See the principal case cited in this connection in Lewis v. Billips,1 Leigh 363; Hardman v. Boardman, 4 Leigh 388.
      Same — Same—Actual Fraud. — After a grant issued, any one claiming a prior equity against the grantee, can, in no case, have relief in equity, unless upon the ground of actual fraud in the acquisition of the legal title; or, unless the party was prevented from prosecuting a caveat, by fraud, accident or mistake. M’Clung v. Hughes, 5 Rand. 453. On page 489 of M’Clung v. Hughes, the court said; “The cases of White v. Jones, (1 Wash. 116) and Johnson v. Brown, assert the doctrine, that equity will not relieve but upon the ground of actual fraud, against the pat-entee, unless the party has been deprived of the benefit of a caveat, by fraud, accident or mistake. The cases of Johnson v. Brown; Depew v. Howard, and Noland v. Cromwell, whilst they declare in general terms that a party cannot resort to a court of equity, upon any ground which would have' availed him in a caveat, unless he was prevented, from prosecuting a caveat by fraud or accident, (and it might have been said by mistake, for that is a species of accident,') do not advert directly and in terms, to the case of actual fraud in procuring the legal title.”
      And in French v. Loyal Co., 5 Leigh 668, the court said that the decision in M’Clung v. Hughes, 5 Rand. 453, that actual fraud practised by the patentee is a ground for equity, though no sufficient excuse is alleged for failing to file a caveat, does not overrule the principal case and Noland v. Cromwell.
    
    
      
       Lands — Legal Title — How Acquired. — The principal case is cited in French v. Loyal Co., 5 Leigh 673, for the proposition that, a warrant, entry and survey, like contracts to sell and convey, give but an equitable right. The warrant is the first step towards procuring a grant; but before an entry with the surveyor, there is not even an incipient right to any .particular parcel of land; the entry Is the first legal step towards the acquisition of title to any specific tract. The survey is the next progressive legal step towards the acquisition; but it is the grant only .which confers the legal title.
    
    
      
      Same — Evidence—Survey—Surveyor’s Deposition.— The principal case is cited in Jones v. Carter, 4 Hen. & M. 194.
    
    
      
       Same — Two Entries — Rights of Second Locator.— The principal case is cited in Jackson v. McGavock, 5 Rand. 527, for the proposition that, when there are two entries on the same land, and the first locator proceeds to survey. If he does not take all, the second locator is entitled to the residue.
    
   PENDEETON, President,

(after observing that as all the Judges who sat in the cause were unanimous; those present thought there would be no impropriety in proceeding to judgment in the absence of Judge Roane,) delivered the resolution of the Court as follows:

Upon the 20th of November, 1749, William Davies entered with the Surveyor of Augusta county, for 300 acres of land, between Robert Davies’s laud, and the land of the widow Bell. It is stated, that Phillips purchased the entry of Robert Davies in 1753, and sold it to Johnson in 1789. Of this, however, no proof is exhibited; but let it for the present be admitted, without making it a precedent. It is proved, that in October, 1789, Johnson purchased of William Davies his right to this entry, and be it also admitted, as stated, that he surveyed the land in dispute, under that entry, in 1790, and obtained a grant in 1792. In January, 1753, a survey appears to have been made, for John Brown, grand-father of the appellee, of 230 acres, including the lands in dispute, on which it is said a patent issued in 1788, but it does not appear. Upon the 10th of June, 1770, Thomas Brown, father of the appellee, entered 400 acres, adjoining Phillips, his father’s old tract, and his own land. March 1st, 1775, he surveyed the 190 acres in dispute, correctly answering the description of his entry ; and February 1st, 1781, obtained *a grant for it. The present suit in Chancery was brought by Johnson, stating his equitable title to be prior and superior to Brown’s; and praying a decree that he may convey the legal title. The bill was dismissed in Chancery, and from that dismission the appeal comes.

We first consider the case, oh general principles, as a claim to set up an equitable interest in opposition to a legal title; in which case, the plaintiff, to succeed, must shew a superiority of equity to the defendant, for, if it be equal only, the law must prevail.

We then contrast the equity of the parties:

Brown appears to have proceeded regularly, fairly and legally, to acquire a title to vacant lands, and has, without fraud, obtained a patent. Johnson, on the other hand, appears to be a man searching for defects in his neighbors’ land titles; hunting up, and purchasing a stale, dormant claim, in order to disturb that title; and would rather seem to merit the penalty of the act against buying pretensed titles, than to be considered as a fair claimant in a Court of Equity. In this view then, here is no equity, set up against law and equity, and cannot prevail.

But, let us Suppose Johnson had such an equity, as would, on a caveat prior to the grant, have entitled him to a preference; it would be no ground for a bill to set aside the patent, unless it had been suggested and proved, that he was prevented by fraud or accident from prosecuting a caveat. On those grounds, this Court has sustained bills of this sort, and enquired into the equitable preference, as if on a caveat; but to admit such bills in all cases, without even suggesting an excuse for not having entered a caveat, would be to transfer the whole caveating- business from the Courts of Law, where the Legislature have placed it, into the “'Chancery; which this Court cannot give sanction to. It was foreseen by the Legislature, that there would be interfering entries and surveys; and the caveat was the remedy for settling all those disputes prior to the patent, to avoid the inconvenience of that solemn instrument being involved in contests of that kind.

But, we will gratify the plaintiff, as far as to suppose for the moment, that we were sitting in judgment on a caveat, entered by Johnson against Brown, to prevent the patent on his survey of 1775. Here Mr. Randolph insisted, that the entry gave a legal title to the land. If so, why come into a Court of Equity? But, it is not correct to say, the entry gave a legal title. An entry is the first legal step towards acquiring waste lands, and gives the person making it, if properly pursued, a preference to a grant, the true definition of an equitable interest. The survey is a progressive legal step; but, it is the grant, only, which passes the legal title. However, the counsel insisted that the title, whether legal or equitable, was to stand good, at all times, until notice given by the Surveyor, and a neglect on the part of the person making the entry: Which does not appear to have occurred in the present case. But, is there no period after which such notice, and a dereliction of the entry, shall be presumed? The law books abound with instances of similar presumptions, and we believe, that not a precedent, or reason, can be found, to induce a Court of Equity to give its aid to resuscitate an entry, which has slept for forty years, in order to disturb intervening legal titles, fairly obtained.

Again: To close the climax of defect in the plaintiff’s claim, the entry gave no title, at any time, to the land in dispute: Which will appear by recurring to the survey annexed to the record. That survey, the Court think admissible, not only as it comes to us, as a part of the record, without exception, but because it is authenticated by the Surveyor’s *deposition. Without enquiry, whether the entry was too vague, between Davies and Bell, or whether two distinct surveys could be made upon one entry; it is most obvious, that the land in dispute is not within the description of the entry, since it does not lie between Davies and Bell. The counsel supposed, that if a line were drawn, from Davies’s corner at B. to Bell’s at K. it would throw part of the land in dispute between the extreme points of that line, and satisfy the entry. This was ingenious, but not rational; since, as Bell’s land lay to the north-west of Davies’s, the entry must have the same position from Davies; and, therefore, it cannot be justifiable to go to the south-eastern corner of Davies’s land, in order to discover the space between that and Bell’s, which would throw Davies’s land between the entry and Bell’s, instead of the entry lying between the other two. Surely, to draw lines from the extreme corners and lines of Davies to those of Bell, in the parts where they approach each other, is the way to discover the space between them. Eor instance, the lines D. E. and E. E. of Davies, and the lines J. K. of Bell, are the approximating lines. Then draw a line from D. or E. to K. and from E. to J. those lines will shew the space between those lands, and be the limits of the entry, which will not include a foot of the land in dispute. On every point, therefore, and every view of the case, the Court are unanimously, and without difficulty, of opinion, that the decree is right, and ought to be affirmed, with costs.  