
    BOSWORTH vs. MAXWELL.
    A conftruction given to an entry which contained repugnant expref-
    A call for tourfe was determined to control a call for a Une of an entry,under the particular cir-cumftances of the cafe.
    MAXWELL exhibited his bill in chancery, in the Lexington district court, against Bosworth, to adjust the merits of their two adverse interfering claims.
    Maxwell held under the following entry : “January 6th 1783, Robert Patterson enters 1000 acres of land, on a pre-emption warrant, adjóining his settlement, on the Lexington line, where the race-path crosses the same ; thence south-east with the said line, to Levi Todd’s entry of 25 acres ; thence with his line to Lex-jngton ; thence along Lexington line to the south cor-per ; from thence to the first pond on Boone’s road ; thencé alongJohnTodd’s pre-émptión south-westwardly, from the beginning, along said Patterson’s settlement, hnd from the given lines for quantity.”
    Expreffion* in narn^to^the^ge-acral intention °f.th* locaPr? wfcrplufage.6
    ,jjie following were the entries used as exhibits in tire cause, with the date each was surveyed,
    “January 18th 1/80, Robert Patterson enters 400 acres, as fry certificate, &fc. lyihg dn the Waters of thé South fork of Elkhorh, about half a mile froth Lexington i to include his improvement.”
    Surveyed 4th February 1793.
    “April 19th If80, John Todd, assignee of John May, enters 400 acres by a certifitate, &c. lying On the head waters of the south fork of Elkhorñ, Oñ M’Gon-néll’i fork, ihcluding a cabiri Built by John M’Critckih, about one mile north-west of Mansfield.”
    “December 6th If82, Jane Todd, assignee, &c> enters 400, acres upon a trfeaáury warraht, No. 5820, beginning at a pond, corner to John. Maxwell, between Lexington and Mansfield, running south 45 east, 260 poles ; thence south 30 west, to Poágue’s line ; théftCé with said line, north 60 West, 260 poles ; and front théneé to thé place of beginning.”
    Surveyed 25th July If83.
    “Decémber 28th 1782, the heirs of John Todd, deceased, who, was assignee of John May, enters 1000 acres of land, on a pre-eftlptioh warrant, No. 866, adjoining the settlement the said Todd purchased front, John May, oh the south-east, and Jane Todd’s entry on á treasury warrant for 400 acres, on the north-east, to extend the body of the tract Cástwardly for quantity.”
    Surveyed 25th July 1783.
    The deferidaht claimed undfet the pre-emption of Alexander M’Connell, which was entefed 'oii the -4 — *, day of ——-—— If80 ; but it was not attempted to bé shewn, that his survey mas made conformably to his entry.
    The following is a copy of so much of thé connected plat, as is necessary to shew the relative position of the objects called for ; and to elucidate the points discussed in argument and decided by the court.
    
      
      
    
    Explanation of the Plat.
    Figure, No. 1, in black lines, Lexington.
    ¶ — "—- 2, in black lines, Levi Todd’s 2 5 acres.
    ■ 3, in dotted lines, Patterson’s settlement to the cardinal points, with the improvement in the centre.
    ... ■ 4, in dotted lines, Patterson’s rée-emption according to the decree of the inferior court.
    --- 5, in. black lines, the land claimed by the defendant.
    The corner at P, the pond.
    R — R, the race-path.
    
      The lines A. P. and P. B. two lines of jane Todd*# entry of400 acres.
    The lines A. P. and P. C. parts of two lines of Johh Todd’s pre-emption entry.
    The notoriety of Lexington, and the boundaries thereof; the race-ground; the pond; and Patterson’s improvement ; were admitted by the parties.
    The cause was heárd in the Fdyette circuit court, arid a decree pronounced in favor of Maxwell, which was in substance—
    That lines should be extended south 45 west front where the race-path crossed the Lexington line, and from the pond so far that a line at right angles to these lines would give the quantity.
    From this decree BoswOrth took an appeal. The Cause was argued, and the decree of the inferior court affirmed, at the fall term 1805, of this court. A rehearing was however granted, and the cause again argued at the spring term 1807, and the following opinion delivered :
    By the Court. — --The appellant having the eldest legal title, the only question necessary to decide,'is, the proper construction of the following entry, by which the appellee claims the land m controversy, viz. — “ Robert Patterson enters one thousand acres of land on a preemption warrant, number 859, adjoining' his settlement on the Lexington line, where the race-path crosses the same ; thence south-east with said line to Levi Todd’s entry of 25 acres ; then with his line to the Lexington line ,• thence along Lexington line to the south corner ; from thence to the first pond on Boone's road; thence along John Todd'spre-emption, south-xvestzuardly, and from the beginning along said Patterson's settlement ; andfrom the given lines for quantity''
    
    In the construction of entries, it is difficult to lay dowri general rules that will not necessarily admit of many exceptions. Each case must frequently depend upon its own peculiar circumstances. But it is evident that every entry itself, must be resorted to, for discovering. the locator’s intention ; in construing which; the whole entry, like all other writings, should be taken together “ ut res magis valeat quampereat." And the relative situation of other claims called for, and of particular objects to each other, ought to be considered at least so far as to effectuate the maxim “ id cerium est quod cerium rtddi potestand. what evidently, from a l air and reasonable exposition of an entry, appears to be a mistake, and repugnant to the locator’s intention, ought to be rejected, as surplusage, and not suffered to vitiate the whole entry*
    In this case, the beginning is sufficiently certain, and well described ; nor does any question of doubt or difficulty present itself, till we pursue the entry to the call for the first pond on Boone’s road ; thence along Todd’s pre-emption south-westwardly.
    It is here found that Todd’s line runs south-east-wardly. The course, or nearly the same course, which, according to the entry, leads to the pond; and the question here is, whether the appellee should be compelled to run with Todd’s line, or pursue the course he calls for. For the appellant, it has been contended, that Where a particular object is called for, the course must yield to the object. This, though a good general rule, is nevertheless subject to many exceptions or restrictions; The object called for, should not be so repugnant as to be incapable of misleading a subsequent inquirer, with Ordinary caution. It should be practicable to comply with the call, and in general, it should be a tangible object, either natural or artificial; not a mere ideal one. For the latter, in many instances, might be more difficult to ascertain ; more productive of mistake or misapprehension ; and more subject to mislead, than course and distance ; and in all such cases, the reason of the rule ceasing, the rule itself should cease.
    In this case, it does not appear that Todd’s line had been actually run ; but on the contrary, ft was only an ideal, invisible, intangible boundary ; the position of which, appears to have been mistaken by the locator. For as the course of Todd’s line corresponds with, the course which leads him to Todd’s corner, it cannot be presumed that he would have called for a course at right angles from the course he was pursuing, if he had only intended to continue the same course ; more especially, after he had given a base sufficient to include his quantity in a reasonable form, by running lines parallel to' each other, and at right angles*
    The court, therefore, are of opinion that this line *ho uld be run south-west ; not only because they con* céive the locator’s intention1 sufficiently manifest ; bilí b'écáhsé they esteemiiíá good rule, that the lines of every survey should bé as nearly páfollel to each other, and as néárly át right angle's as th'e caflS’crf the entry wiif átittíit; atiél when not corittóled by sttcli calls as evidently shew the locator’s intention to be otherwise, the court will give itScálls this construction, as being the most reasonable, and t!ie: least subjectto exception.
    Having fixed'the position of the last mentioned line, the next difficulty which preserit's itself, is, how should ■⅜⅛€ entry be surveyed from the beginning ?
    Jt -is found that the beginning of this claim interferes with' the settlement of Patterson, when that settlement is laid d'iwtñin that shape which this court has hitherto given such entries by construction ; and thus produces such añ interferéscé as is manifestly repugnant to the intention of the locutor ; for he having called to adjoin his settlement, it cannot be presumed that he intended to interfere with it. Rut having fixed his beginning tti his settlement, bemust be bound by it when it operates against 'him-; and should have the benefit of it when it operates in his favor. A mistake by which it appears, that instead of adjoining his settlement, he interferes with it, can no more control his positive and certain calls-; than a mistake by which it would appear, from the constructive position of his entry, he could not adjoin the sétdement consistently with his calls, could defeat or regulate those calls. In either case, if the calls be certain to a common intent, they ought not to be affected by such description as proves the locator to have hefen mistaken! but such mistakes should be rejected'as SUr-•{jlusage^ lor that which is uncertain shall hot destroy that which is certain, utile per inutile non vitiátúr. The appellee, therefore, may as well run this line from his beginning, without regarding the description of adjoining his settlement, as the first line called for from the beginning., For in his first call, viz. his beginning, he also calls for it as adjoining his settlement, which cannot be compli ed with, consistent with his intention ; and therefore, it is as reasonable, that if the call now under Consideration, to wit; “ From the beginning along his settlement.” is apparently as repugnant to his intention, by a comparison with the rest of the location, the mistakes in description, should, for the same reasons, bé rejected.
    
      No doubt: tjmttbe lpcfttpr tfcaf-the §r$'eb\P* tion would adjoin his settlement as described ; -and tbe ⅞⅛⅛⅛⅜,,⅛ the posttipfi of the ee^leRier^t, especially where'ther^ tyere no lilies actually run.and marked ; pud this position, only'giyej).to his'.settlement by cptistnic-tiqn, should not be construed, to defeat or niter the evident intention of the location, upon the pre-jempti^n warrant ; especially, where jt has description spificieht, independent of such mistakes..
    It is certainly correct, that; where a locator calls tp adjoin entries, without clearly sheydng how he intended to adjoin them, he should adjoin them'as, they ought tp.l^e surveyed ; and this is a rdle of construction, adopted by the .court, tO supply the defect of better description., ’ it is resorted tp ,e?e necessitate, where ña. other córréqt .m-. djeatipn ofthp locator’s intention is given,. It its. respr-ted to, to support entries, arid should not, .in general, be Used to defeat or control those, which,otherwise, upon, a fair expositionpf them, shew what the locator’s inten-. u v
    
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      to c o 3 c tí o ^5, a* 0⅞ p .3-•tí o ü i> •K> ‘tí-John Todd’s pre-emption, although ⅛ may be complied p-ith.”
    
      April 13th.
    
    “3d. The court have predicated their decriie upon, the principle that the pre-emption entry, which wás subsequent tq the settlement entry, can give boundary to the settlement ; or at least, such is the consequence of their decree..,:' .
    “4th, Tite court have misconstrued the pre-emption entry,.
    The cause came again for argument this term.
    
      Clay, tor the appellant.
    — -The decisions of this court have said that surplusage will not vitiate an entrv ; but they hold out the idea that repugnance will. Whenever an entry has two calls that oppose, and cannot be both complied with, and does not in itself shew something that will give a preference to one, it must destroy the entry. In the case of Pmuling vs. Merrhvether’s heirs 
      
      , the call for the improvement was the govern^ ing call, and saved the entry ; for the claim was confined to the improvement, In the case of Morrison vs. Cog-hill’s legatees 
      , the court decided there was a sufficiency in the patent to shew th® intention of the survey- or, without the call for course ; and they gave efficacy to the intention thus ascertained.
    Patterson’s settlement entry must be surveyed in ,a square to the cardinal points, and will cross the Lexington line at a place different from the race-path, Here, the locator calls for both, as if they were at one place, He is rnistaken in this. What is there here, to decide which of these points he intended for his beginning ? There is nothing.
    At the other end of the base line, there is equal uncertainty, The call to run with John Todd’s pre-emption line south-westwardly, cannot be complied with.
    There is not enough in this cause to shew how John Todd’s pre-emption should be surveyed. And the ap-pellee having failed to shew what would be its figure, must destroy his own entry. Otherwise, a party by proving some of the objects called for in an entry, and pmitting others, might give it different figures as it might suit his interest, This will never be permitted. Wherever a call is rejected as surplusage, it must be when the objects are all shewn, and it is apparent th% cajl could not mislead,
    
      If there be enough to shew how John Todd’s preemption is to be surveyed in this cause, his line will run south-east from the pond, instead of south-west. Which of these calls shall have the preference — to run with John Todd’s pre-emption line, or south-westward-]y? If either is to have the preference, it must be the call for Todd’s line. This court has decided, in the case of Morrison vs. CoghilPs legatees, and in Patter-so^s devisees vs. Bradford 
      , that course should give place to a line called for.
    Or perhaps you may consider this as two calls ; first, with John Todd’s line, and south-westwardly : by supplying the word and, as the word fork was supplied in the case of Gaither vs. Tilford 
      
      . If you do this, you can give effect to every word in this part of the entry ; but it will materially change the shape and position of the appellee’s entry, and shew that the court have erred in that respect.
    If, however, you do not do this, you are reduced to the dilemma of deciding between two equal calls ; and you must arbitrarily adhere to one, and reject the other. This will be making, not expounding an entry.
    Each end of the base line of this claim is unfixed and indeterminate : the entry cannot therefore he good. But if the entry must be supported, the call to adjoin his settlement on the Lexington line, must surely haye the preference over the call for the race-path. The pre-emption was appendant to, and connected with the settlement; and it never could be intended by the locator that they should clash : nor should you give it such a construction. The claim should be surveyed by beginning where the settlement crosses the Lexington line, and running with the settlementline, and the course thereof,untilthe quantity isobtained; oruntilit intersects another line of the entry. If this should not give the quantity, it is the locator’s fault, and not ours. If you go with the settlement round one corner, you "may as -well keep round all: I see no other point af which to stop.
    Edwards, Ch. J. — The figure of a square given to entries, is a construction of necessity,-and must be adopted, unless something in the entry manifest a contrary intention. From this pre-emption entry it is plain Patterson did not intend to run his settlement as the court Construes the entry to mean. And though this cannot affect his settlement entry, ought not his pre-emption entry to be run as it is apparent he intended it ?
    
      Clay .
    
    — The ambiguity occasioned by this mistake', is a radical defect ip this entry. Patterson was bound to know, and is presumed to know, how the law construed hiseptry. The call for the race-path was? used to exclude the other corner ipade by the settlement and the Lexipgton line.
    Judge Thimble. — -The difficulty in this part of the entry, may be accounted for by a mistake in fact, ps well as by a mistake in law. Patterson might have supposed that from his improvement to the race-path, wa,s so far as to bring his line, when his survey was made in legal form, to that place, apd have been mistaken in the distance.
    Monroe, on the same side.
    — Whenever the equity of the parties before the court, is equal, the law must prevail. The entry of M’Connell, under which the appellant claims, is dated in 1780, and was the prior equity. You should not aid-dre appeljee to set aside the elder patent, founded op the elder incipient equity, to. let in Patterson’s younger equity ; unless actual fraud or peal accident prevented Patterson from getting relief. For the general doctrine I have alluded to, see White vs. yones, 1 Wash. 116 — Hunter vs. TIal,l, 1 Call 206 — J ohnson vs. Brown, 3 Call 259 — I lag gin vs._ Wood's heirs, Pr. t)ec. 3⅝4 — JQlgoee.vs. Kelly, ibid 30*.
    Where the locator of the younger entry had, or might have had notice of the elder entry, he shall not prevail. So if he has such an equity as would have succeeded on the trial on a caveat, he shall not come into, chancery, unless actual fraud, or real accident prevented his proceeding in that way — See 1 Wash. 116 — 3 Call 266 ; the latter of which cases is in point, and was decided by one of the ablest judges who ever sat in a court, and one who was intimately acquainted with the history and progress of the land law.
    It is also founded in principles of sound equity and good policy. Here there is no allegation of fraud, accident or mistake. The appellee is therefore not entitled to relief.
    
      Hughes, for the appellee.:
    — The question argued by Mr. Monroe, was made at an early day in this country, in the case of Harrod vs. Givens, and decided by thq old supreme district court, in March 1789, iri favor of the jurisdiction of a court of chancery, in cases like the present. The same question was decided in February 1807, in the same way, by the supreihe court of the United States, in the case of Taylor vs. Hughes fcf Bodley. I do not consider the point as open in this cause, as it is not assigned for error, and shall therefore not argue it.
    
    It is objected to our right to relief in this cause, that we have not shewn how John Todd’s pre-emption is to be surveyed. It will be found that Jane Todd’s entry calls to begin at the pond our entry calls for; and to run south-east, and then towards the south-west; and that JdhnTodd’s pre-emption calls to adjoin Jane Todd’s em try on the north-east, and to extend eastwardly for quantity. This shews thatthelineofTodd’s pre-emption, nearest to the course called for, runs south-east, and is also a line of Jane Todd’s entry ; so that it is totally immaterial in this cause, what shape the entry may assume, or what courses the other lines may run. We shew the true situation of the only line that can have any bearing in this cause ; nothing more can be required of us.
    On the main question, the validity of this entry — if there be enough in the entry to give notice what land ■was intended to be appropriated, it is sufficient; though absurd or inconsistent terms be used. That Patterson supposed his settlement line would cross or corner on the Lexington line at the race-path, is evident. He has been mistaken, but that cannot destroy his entry ; he has called for his beginning to be at a visible and tangible object, the race-path ; than which,no object would be more notorious. You should give such a construction to this entry, as the unlearned locators would do. They would never think of measuring or running the lines of tlie settlement, to find a beginning. They would unhesitatingly point to the race-path as the spot.
    There is no foundation for the argument, that a preemption, calling for the settlement of its owner, is to be differently construed from what it would if it called for the claim of another. The owner can mould his entries as he pléases ; and may lay them, as has often been done, so that the pre-emption may swailow up the settlement.
    
      As to the other end of the line, Patterson never could intend to interfere with June Todd's 400 acres ; and for him to run past the pond, south-east with John Todd's pre-emption, he would do so. A locator must always be presumed to have in view all the entries that are called for by the claims he calls to adjoin, and to intend avoiding them.
    The expressions of this entry preclude the idea that the locator intended continuing from the pond southeast ; for the course from the south corner of Lexington to the pond, is nearly, if not precisely, south-east; but the entry uses the words “ thence along John Todd’s pre-emption south-westwardly,’’ &c. which shews, he mea&’t the pond to terminate a line, and then to corner and run a different course* As John Todd’s pre-emption entry was not then surveyed, the line of it was as much an idealline, as the course south-westwardly Would be, and cannot have any preference on account of its being called for as aline. The cases Mr. Clay refers to, are cases where the line called for, has been a known, marked line ; and the course has been considered by the court as mentioned barely for the purpose of finding the line. The reason of those cases, do not apply to this case, and therefore, they cannot be authority against the doctrine I contended for.
    Any man who would take this entry, would at first blush, say it meant to appropriate the land adjoining Lexington, between the race-path and the pond, and to run south-west for quantity. This is notice sufficient to subsequent locators- The call to run with his settlement line, cannot be complied with ; because his line does not run where he supposed ; or rather because the construction of the courts has given it a different shape from what he intended. As you cannot run with the settlement line, you have a base, and a side line ; and you must run at right angles from the base, unless the entry necessarily leads you a different course. If, therefore, this call is uncertain, it must give way to the general rule, and the right angled figure be preserved.
    Allen, in reply.
    — Where an entire legal right is attacked by an equitable one, the equity must be clear to entitle it to succeed. Some decisions may seem to be contrary to this rule ; but the court have taken the rule for granted ; and where they have erred, it has been by a misapplication of the rule ; not by denying it. The case in 3 Call, cited by Mr. Monroe, goes upon this rule ; and if the doctrine it contains had been adopted at an early period, it would have been fortunate for us. It is, perhaps, now too late to re-trace our steps on that point;
    But the entry in question, is one which is vagué, for its repugnance.
    Judge Trimble. — Repugnance in an instrument of writing, is where one provision is clearly inconsistent with another, hot where one word or sentence is repugnant to another, provided the general intention can be collected from the whole taken together. If that be the case, that part which is variant from the general intention, múst give Way, and the general intention be carried into effect.
    Allen
    -I Will not controvert the correctness of the idea suggested. Whenever a locator has made an entry, but has omitted to give his location precise shape and bohhdary, you should only require of a subsequent locator, that he should give the former entry a reasonable construction. Here we have done so, and appropriated land out of the entry, when thus construed. If the appellee’s entry is doubtful, and finally you put the construction on it contended for by him, will you take land from us, when another construction as plausible,' will take him off, though this latter construction does not quite so well please you l As to the land which Would be covered by one construction, and left out by another, the entry is, in truth, vague and uncertain.’ As to such part, the former locator cannot havé a clear equity. It is Occasioned by his ambiguity ; ánd he? should loose by it, if any person must.
    The Call for the race-path and the settlement line, is a repugnance in provision as well as in expression. But the call to run with the settlement line, is a strong reason for adhering to the call for the settlement in preference to the call for the race-path. You must either disregard the Call for the race-path, Or destroy the entry.
    The call to run with John Todd’s pre-emption line south-westwardly, is to bé taken either as One or as two calls. If it be taken as one call, shew me the case that takes course, and gives up the object called for ? But there are several cases that give up the course and ad-^ere to the object ; some of which, were cited by Mr. Clay. Mr. Hughes has fixed Todd’s pre-emption line. When he got to the pond, why did he not follow the pre-emption line ? He calls for it. Patterson’s preemption was of superior dignity to Jane Todd’s treasury warrant claim, and would hold the land, if properly entered against her, though his entry be the youngest. He might have intended so to do. So if these expressions be taken as two calls, you must then run with Todd’s pre-emption the whole length of his line, and then south-westwardly for quantity.
    
      April 16th.
    The idea of running south-west from the beginning, is not warranted by the entry. The call is with the set-tlementline. You should therefore run with the settlement line, and a continuance of its course south, and then extend the other lines so far as to give the quantity.
    
      
      
         Hughes 14.
    
    
      
      ¿) Pr. Dec, 382,
    
    
      
      
        Antt 107,.
    
    
      
      ¿) Pr, Dew, 284.
    
    
      
       See Muter’s MSS. Rep.
    
    
      
       See the declfidii óf this court, ón this cjüeftíon, in the cafe of Crow's heirs vs. Harrod's heir, poft.
      
    
   Edwards, Ch. J.

now delivered the opinion of the court. — That the former decree be confirmed, and remain unaltered.  