
    43 *James Burnsides Appellant v. Andrew Reid, Samuel Culbertson, & Thomas Walker, Appellees.—& Andrew Reid Appellant v. James Burnsides Appellee.
    October Term. 1794.
    Land — Settlement and Pre-emption — Act of 1779 - The Act of 1779. establishes the rights of prior settlers, and (fives pre-emption when vacant lands can be found adjoining. But a right to pre-emption in the adjacent land, as a consequence of settlement, cannot prevail against a right claimed under a survey of the adjacent land made prior to 1779.
    This was an appeal from a decree of the High Court of Chancery. The case, was, —Andrew Culbertson having made a settlement on a piece of land called Culbertson’s bottom in the year 17S3, or 1754, was compelled through fear of the Indians to leave it; after which, he sold it to Samuel Culbertson, who also lived on and improved it, and he too in 1755 was compelled to leave it from the same cause.
    Although the two Culbertson’s were for many years prevented from returning to this settlement on account of the savage enemy, yet Samuel Culbertson constantly asserted his claim to this land, and made frequent attempts to return to it.
    In 1775, Thomas Earlow, having acquired the settlement right of two men by the names of Butcher and Gatliff to this land, being 355 acres, purchased the same from the Royal company, paid the consideration money, and procured the same to be surveyed on the usual terms of that company. The survey was returned to the appellee Thomas Walker, (the company’s agent,) and Earlow took a certificate thereof in order to obtain a grant so soon as one could issue. The appellant Burnsides having purchased the right of Earlow to this land, received an assignment thereof.
    In 1782, Burnsides, as assignee of Ear-low, who was assignee of Butcher and Gat-liff exhibited his claim to this land, before the commissioners appointed by the act of 1779 to adjust disputes between litigant settlers, and claimed under a survey made by Earlow in 1775, for settlement in 1772, for 355 acres. The commissioners allowed him 400 acres (including the said 355 acres) for his settlement in 1792 together with 600 acres pre-emption *adjoining. At the same session of the board of commissioners, Reid, on behalf of Culbertson exhibited his claim for the same land, asserting Culbertson’s right of settlement in 1754, which was rejected by the commissioners, who decided the right in favor of Burnsides.
    Burnsides states in his bill, that he laid his claim by survey before the commissioners ; but they refusing to allow the validity of surveys under a company, gave the preference to prior settlers, in consequence of which, he was obliged to claim as for a prior settlement, or lose his land. At the time that these claims were before the commissioners, the claims of the loyal company (amongst others) were pending in the court of appeals, and in 1783, the surveys made under the companies were established and declared valid, where legally made.
    In October 1784, Reid, as attorney for Culbertson, entered a caveat in the General Court ag’ainst a grant issuing to Burn-sides, stating in his petition, that at the trial before the commissioners, he was prevented by unavoidable accidents from producing testimony in support of his claim, which but for those causes, it was in his power to have furnished, and praying for a reconsideration of the case.
    The General Court granted a hearing, and after the examination of witnesses and of the circumstance of the cases, Culbertson’s claim was sustained, the sentence of the commissioners set aside, and 400 acres for settlement, .and 600 acres pre-emption were adjudged to him.
    To prevent a grant from issuing in consequence of this adjudication, and to compel Thomas Walker the agent of the company to yield his consent to a grant to the said James Burnsides of the land in question, Burnsides filed his bill in the High Court of Chancery. The bill amongst other grounds of equity states, that the plaintiff was precluded in the General Court, from bringing forward his claim by purchase from the company, because the determination of the commissioners had been given on a claim for prior settlement, and because the plaintiff’s survey was in possession of the defendant Walker, and could not be produced. The injunction prayed for by this bill was granted till further order.
    Pending this suit, and before answers were put in, Burnsides having in the year 1786 procured a survey to be made of 1200 acres of land including the land in controversy, and having obtained a certificate thereof, paid to the said Thomas Walker the purchase money, and procured an order to the register for a patent, which ^actually issued, founded on the judgment of the commissioners for 1000 acres, (though it had been set aside by the General Court) and 200 acres by virtue of a land office treasury warrant. To obtain a repeal of this patent, Reid filed a cross bill against Burnsides.
    Both causes coming on together, the judge of the Court of Chancery pronounced the following opinion and decree viz: “The court is of opinion that Burnsides, after obtaining an injunction to stay execution of a judgment by the General Court against him, having procured a survey to be made, and a grant to himself to pass the seal, of land, to which land the title of Samuel Culbertson was asserted by that judgment, and which according to the judgment would have been secured to him by a grant, if Burnsides had not prevented it, was guilty of a fraud, because the register of the land office, if he had known such a judgment to have been rendered, by which he was ordered to issue a grant of that land to the said Samuel Culbertson, ought not to have issued, and therefore probably would not have issued the grant to Burnsides. And the court is also of opinion that Reid, on whom the right of Samuel Culbertson hath devolved, is not barred of relief against Burnsides, by the decree and order of the Court of Appeals, on hearing the claims of Walker and .Nelson, not only because a claim under the survey for ffarlow, which Burnsides in his bill suggests to be the foundation of his title, doth not appear to have been established by the decree and order of the Court of Appeals, and could not be legally established, so as to bind the right of any who were not parties in that proceeding, but, because the grant to Burnsides, was founded, not on that survey but, on a survey certified to have been made for himself, in January 1786, by virtue partly of an entry, on a certificate from the commissioners for the district of Washington and Montgomery counties, for 400 acres, dated the 10th of September, 1782, which certificate of the commissioners, with their adjudication affirming the right of Burnsides, was annulled by the General Courts judgment aforementioned. And now the court would have pronounced such a decree as in its opinion, if what followeth had not happened, ought to be made — a decree nearly like that which was pronounced in the case between James Maze, plaintiff, and Andrew Hamilton & William Hamilton defendants ; but that decree hath been reversed by the Court of Appeals; & this court, from that reversal, supposeth, perhaps erroneously, the opinion of that honorable court to have been, that, by the order of council, granting ’"leave to the Green-brier company' to take up 100,000 acres of land, lying on Greenbrier river, northwest and west of the Cow-pasture and Newfoundland, all lands within those limits, if they must be called limits, were appropriated, so that the company or their agent had power to survey and sell any parcel, which they should chose, of such land, although another man had settled on the parcel before the surveying and selling, and although the act of General Assembly, passed in the year 1779, had declared to be just, that those who had settled on the western waters, upon waste and unappropriated lands, for which they had by several causes been prevented from suing out grants, under such circumstances, should have some reasonable allowance for the charge and risk they had incurred, and that the property so acquired should be secured to them; the honorable court seeming to have understood that, by the terms waste and unappropriated lands, to which no other person hath any legal right or claim, the act intended lands which the company had not chosen to survey, after, as well as before, they had been settled; whereas some, who have observed that the surveys made by orders of council, and confirmed by the act, are surveys of waste and unappropriated lands likewise, think the application of the term, unappropriated, in the case of lands surveyed by orders of council, to lands not settled before the surveys, would be sound criticism; especially the act having dignified the settlement with the emphatical appellation of property, property acquired, and acquired at charge and risk means of acquirement generally esteemed meritorious; and think the words lands, to which no other person hath any legal right or claim, more restrictive than the words lands unappropriated, which comprehend lands to -which no other person hath any right or claim, whether legal or equitable; and the honorable court seeming to have understood that the act, by the terms upon lands surveyed for sundry companies &c. people have settled, &c. In the seventh section, designed to include lands surveyed as well after, as before, the settlements; whereas some commentators conceive that the interpretation, which confineth the words to surveys prior to the settlement, is not inconsistent with the rules of grammar, with the intention of the legislature, or with the principles of natural justice. And this court supposeth the opinion of the honorable court to have been, that where a settler of land, surveyed after his settlement by virtue of the company’s order of council, had obtained a grant of the land, including an additional quantity in right of pre-emption, one, who was a prior settler, recovering *the settlement from the grantee on that principle, shall not recover'with it the pre-emption lands; whereas others think that he, who recovereth in right of priority, ought to be in the condition in which he would have been, and consequently ought to have the pre-emption, to which he would have been intitled, if the posterior settler had not obtained the grant. And this court also supposeth the rights of the loyal company, under whom Burnsides in the principal case claimeth, and the territorial limits of whose order of council are not more definite than those of the other company, tobe no less extensive, and not less to be preferred to the rights of setters, than the rights of that other company ; on these suppositions, this court, in order to such a final decree as at this time is believed to be congruous with the sentiments of the Court of Appeals, doth direct that a survey be made of the 400 acres of land, for the settlement by Andrew Culbertson, which may be laid down as either party shall desire, to enable the court to decide between them on the propriety or reasonableness of the location ; that the patent of James Burnsides be also surveyed and laid down, to shew how much it in-cludeth of the 400 acres; and when this shall be adjusted, the court doth adjudge, order and decree, that Burnsides do convey to Reid the inheritance of so much of the 400 acres as shall be found to lie within the bounds of the said patent, with warranty against himself, and all claiming under, him, and deliver possession thereof, upon Reid’s paying to him, at the rate of three pounds per hundred acres, for the quantity so to be conveyed, that as to those 400 acres the bill of Burnsides'be dismissed; and, as to the residue of the land contained in the patent, that the bill of Reid be dismissed; but Reid is nevertheless to be at liberty to proceed to survey the 600 acres of land for his pre-emption, if he can find land to satisfy' the same, without interfering with the said patent, or any other prior claim.”
    From this decree both parties appealed, each from so much of it as partially dismissed his bill.
    
      
      Patent for hand Fraud in Procurement — Legal Title. —In French v. Loyal Company. 5 Leigh 654. the court said that the principal case proves that a patent, although fraudulently obtained, and founded partly on a land office treasury warrant, conveys the legal title, even against a person having a valid claim, under settlement and pre-emption rights, established by the first statute of May, 1779.
      The principal case is cited in J ackson v. M’G avock, 5 Rand. 534. See Hamilton v. Maze. 4 Gall 196, note.
      
      Same — Actual Fraud — Equity Jurisdiction. — In M’Clung y. Hughes, 5 Rand. 489, the court said: “The jurisdiction of equity, after the issuing- of the patent, in a case of actual fraud, is affirmed in the cases of Wilcox v. Calloway (1 Wash. 88); Beta ®. Burnsides (3 Wash. 43) (in which cases the patents were issued pending a caveat by the other party); in Johnson v. Buifinston (3 Wash. 116), and White v, Jones (1 Wash. 116) (in which cases the jurisdiction was affirmed, although no caveat was filed, and no reason assigned for the failure): and such were the cases of Preston v. M’Kinney (not reported); Christian v. Christian (6 Munf. 541).” See the principal case cited on page 481 of M’Clung v. Hughes. See Burnsides v. Reid, Wythe 150.
      Same — Location —Land Office Treasury Warrants.— The principal case is cited in French v. Loyal Company, 5 Leigh 653, as authority for the proposition that lands covered by claims declared valid by the statute for settling claims to unpatented lands, are not less liable to location on land office treasury warrants, than lands covered by valid claims acquired under the general land law.
    
   CARRINGTOK J.

delivered the opinion of the court.

The act of 1779 gives a preference to original settlers, and so did the loyal company. The act grants to such settlers 400 acres including their settlement, and a preemption of 600 acres adjoining, if such lands can be found, to which no other person has-a legal right. The Chancellor is mistaken when fie likens this to the case of Mane and Hamilton. If the cases were alike, as he-states them to be, this court would have established the present decree without a dissenting voice; and notwithstanding the criticisms *that have been passed upon that decision, this court upon a revision of that case consider it to-have been determined in strict conformity with the law, and agreeably to the principles of equity. But how was the case of Maze and Hamilton? Maze’s settlement was in 1764; Hamilton’s not until 1770. Maze constantly asserted his claim of settlement right. In June 177S, Hamilton surveyed 1100 acres including Maze’s settlement, and pending the dispute got out his patent. The act of 1779 established the right of prior settlers, and give preemption when vacant lands are to be found adjoining. Though in that case the settlement was Maze’s, yet the adjoining lands which would otherwise have been for preemption, were not vacant, having been surveyed by Hamilton under the authority of the Greenbrier company, anterior to the act of 1779. This court therefore considered that Maze had a right to his settlement, & Hamilton, having a right prior to that, under the law of 1779, was entitled to the remainder of his patent, and so determined it, with liberty to Maze to survey his pre-emption wheresoever else he could hnd vacant land, and reversed the decree. What is this case? Culbertson proves his prior settlement incontestably, in which is included Farlow’s survey'. Burnsides, not till 1786, (long after the determination in favor of Reid in the General Court,) made his survey, and fraudulently obtained his patent for the settlement, and for preemption in the vacant lands adjoining. Until then, we hear of no title in the adjoining lands in any body. Therefore his patent was founded upon a rotten foundation, (so far as it included the settlement and pre-emption,) it being upon the judgment of the commissioners,, which was declared void by the General Court. An attention to dates will point out the distinction between the two cases. In the case at bar, the pre-emption of Samuel Culbertson is made to yield to the patent of Burnsides, altho’ the lands adjacent to Culbertson’s prior settlement were vacant at the time of the judgment of the General Court in 1784, establishing Culbertson’s settlement and pre-emption. Burnside’s survey was not made, nor his patent obtained till 1786, and that by fraud, imposing on the agent of the loyal company' the commissioners certificate in 1781, which had been vacated by the General Court.

The decree of the High Court of Chancery is therefore erroneous in this, that after setting aside Burnside’s patent for fraud, so far as it comprehended the lands adjudged by the General Court in 1784 to Samuel Culbertson for his settlement right, it makes the pre-emption claim of the said Culbertson, founded on *the said judgment, yield to the patent of the said Burnsides, which was not obtained until 1786, upon a survey made in that year.

The decree is to be reversed, and it is now decreed that a survey be made of 400 acres for Culbertson’s settlement right, and 600 acres adjoining, which may be laid down as either party may require, to enable the Cpurt of Chancery to determine as to the reasonableness of the location ; that the patent to Burnsides be also surveyed and laid down to shew how much it includes of the 1000 acres. And when this shall be adjusted, the court doth adjudge &c. that Burnsides do convey to the said A. Reid the inheritance of so much of the 1000 acres as shall be found to lie within the bounds of Burnside’s patent, with warranty against himself and all claiming under him, and deliver possession thereof upon his paying to the said Burnsides at the rate of £3 per hundred acres, for the quantity so to be conveyed: That as to those 1000 acres, the bill of Burnsides be dismissed, and as to the residue of the lands contained in the patent, that the bill of Reid be dismissed, and that Burnsides pay costs in each suit in the High Court of Chancery. 
      
      See Appendix.
     