
    *Kendall Thomas v. W. Lee White et al.
    The possession of vendees, under a bond for deed, is a sufficient possession of the vendor to entitle him to maintain a bill quia timet.
    
    A vendee who has not acquired the legal title can not sustain a bill of peace, since no other kind of title will suffice.
    Where an entry is made in the Virginia military district, contrary to the proviso of the act of Congress of 1807, and the similar proviso in subsequent acts, not only is the entry void, but also any patent issued in pursuance of it. But this results not from the invalidity of the entry, but from the express provisions of the acts that the patent shall be void.
    But where the entry is not in contravention of said proviso, and the government issues a patent, such patent operates a transfer of the legal title to the premises described in it, no matter what objections exist to the entry or survey, and even if there were no entry or survey at all.
    A misdescription in one or more particulars in such patent is of.no consequence, if the residue of the description enables the court to correct the error and ascertain the land meant to be conveyed.
    
      Bill in chancery, reserved in the district court in Eranklin county.
    The bill, filed February 29, 1848, represents, that some time before the 14th of June, 1806, one Michael Burke was entitled to three hundred acres of land in the Yirginia military district, by virtue of three military warrants, Nos. 3,213, 3,410, and 3,490, assigned to him; and on said 14th day of June, 1806, the said' Michael made an entry in the books of the principal surveyor of said district, as ■follows:
    “ 1806, June 14.
    “No. 3,474. Michael Burke, assignee, enters three hundred acres •of land, on throe military warrants, Nos. 3,213, 3.410, 3,490, on the waters of Darby’s creek, beginning at the lower corner of John M. Gregory’s entry, No. 3,679, in Brown’s line; thence with Gregory’s line to his southeast corner; thence, at right angles, S. 38 E., for quantity.”
    The bill further represents that, on the 9th of November, 1845, complainant purchased of Francis E. Worrell, sole *heir of Burke, all the estate of the said Burke, who died intestate, and of said Worrell, as his heir at law, in said entry, and the warrants connected therewith; and on the 14th January, 1847, caused said entry to be surveyed, and, on the 30th January, 1847, to be recorded in ■said principal surveyor’s office; and that so much of the land as was claimed by the defendants, as thereafter stated in the bill, was ■convoyed to complainant by patent from the United States, August 23, 1847.
    The bill claims that, by virtue of the proceedings and patent aforesaid, complainant has a good, perfect, valid, and legal title to said lands, “mentioned and described in said patent, and located and surveyed as aforesaid, to wit: Two hundred and nineteen and a half acres, situated on the waters of Darby creek, in said county of Franklin, bounded as follows : Beginning at two sugar trees, south corner to John M. Gregory’s survey, No. 3,679, in the line of William Brown’s survey, No. 1478 ; thence with said line south 37 degrees east, 187 poles to a sugar tree and hickory, west corner to Kendall Thomas’ survey, No. 3,474, for 164 acres; thence with a lino of said Thomas’ survey, north 53 degrees east, 188 poles to a sugar tree and ash, north corner to said survey; thence north 37 degrees -west, 187 poles to a sugar tree and ash, east corner to Gregory’s said survey; thence, with a line thereof, south 53 degrees west, 188 poles to the beginningand that after obtaining the patent, and on or about October 1,1847, “complainant took possession of said premises, and hath ever since, and now holds the actual possession of the same, under the title aforesaid.”
    The bill next represents that, on September 26, 1799, the representatives of Thomas Saunders, deceased, “ made the following entry in the principal surveyor’s office of said district:
    “No. 3,751. The representatives of Thomas Saunders, deceased,. entered two hundred acres of land on a military warrant *No. 4,607, on the waters of Darby’s creek, beginning at the southwest corner of John McGregories’ survey, No. 3,161, running with his line north 53 east, 178 poles; thence at right angles south 37 east, for quantity.”
    The complainant avers that said entry, if it appropriated any land whatever, was an entry upon and appropriated land situate in the county of Logan, and adjacent to the following entry, recorded in said principal surveyor’s office, December 13, 1797:
    “ No. 3,161. George McCredie, assignee, enters 188f- acres of land, as part of a military warrant, No. 4,728, on the lower side of Darby’s creek, adjoining Philip Slaughter’s entry, No. 3,159, below, and running down the creek 200 poles in a right line; thence at right angles, and with Slaughter’s line, for quantity.”
    Complainant further avers, that John McGregory, or John M. Gregory, had not, at the time of the entry last mentioned, or at any time afterward, an entry or survey, No. 3,161, in the county of Franklin, or elsewhere in said district; nor had 'any person by the name of John McGregory, or John McGregories, any survey whatever in said district, the southwest corner of which would become the locative call of an entry, so as to cover the land entered, surveyed, and patented to complainant as aforesaid; that said entry No. 3,751 could not and can not be found in said Virginia military district, and the same was and is absolutely void; and no survey or patent founded thereon could affect or impair complainant’s entry r made prior to the act of Congress of 1807.
    Complainant represents, that the Saunders representatives, on September 30,1799, “ disregarding said entry and the call thereof,” caused a survey to be made, and caused it to be recorded October 5, 1798, in substance as follows :
    
      “ Surveyed for the representatives of Thomas Saunders, deceased, 200 acres of land on military warrant No. 4,607, on the waters of Darby’s creek, beginning at the two sugar trees in the line of William Brown’s survey, No. 1,478, and ^southwest corner to John M. Gregory’s survey, No. 3,161, running with Gregory’s line north 53 east, 179 poles to two elms and a sugar tree, southeast corner to Gregory’s survey; thence south 37 east, 179 poles, passing the northwest corner of William Taylor’s survey, No. 3,744, to two elms; thence south 53 west, 179 poles to an ash and sugar tree in the line of said Brown’s survey ; thence with his line north 37 west, 179 poles to the beginning ;” and that on December 22, 1815, one Minor White, as assignee of William White, assignee of William T. Saunders, the legal representative of Thomas Saunders, deceased, obtained a patent from the United States for said land last described.
    Complainant avers, “ that his said entry, No. 3,474, was made in good faith, and after a reasonable examination of prior entries, and that, when made, there was no entry on the land covered by the same, and that neither the said Michael Burke nor those deriving title under him, nor complainant when he nade said survey and obtained said patent, nór at any time previous thereto, had any notice, in fact or in law, of any title or claim to said lands, covered by said entry 3,474, other than entry No. 3,474.”
    The bill then represents that Minor White has departed this life, but that complainant does not know who are his heirs; that one W. Dee White, a non-resident, claims to hold, by descent or otherwise, the title to said lands under said Minor White, and also claims that said entry, survey, and patent for entry No. 3,751 covers, and that he has legal title to, tho lands patented to complainant, which is a cloud upon complainant’s title, and impairs its value.
    The complainant insists, that said entry, survey, and patent for said entry 3,751 does not cover complainant’s lands, “ the same being uncertain, invalid, and void; or if it does cover said land, that the survey was made without any entry whatever to authorize the same; ” that said survey was made and said patent procured in fraud of complainant, and that the complainant “ has a prior, equitable, and legal title in the premises.”
    *Thc bill prays that defendants be decreed to release and convey, etc.
    The answer of W. Lee White insists that the entry, survey, and. patent of Burke and complainant were in fraud of the rights of defendant and Minor White’s vendees, and are invalid; that the •entry and survey, No. 3,751, in the name of Saunders’ representatives, and the patent thereon to Minor White, vested as well the equitable as legal title in Minor White; that entry 3,474 was not made in good faith, the locator well knowing that the land covered thereby was, or was intended to be, covered and appropriated by entry and survey No. 3,751. Respondent does not “believe that complainant, at the time he made his survey and procured his patent, had no notice, in fact or in law, of any title or claim to said lands, covered by said entry 3,474, other than entry 3,474; on the contrary he believes and avers, that long previous to his purchase of the Burke warrants and entry, he had full knowledge in fact of the entry and survey 3,751, and of the patent thereon to said'Minor White, and well knew that this defendant claimed said land, or a part of it, under said entry and survey 3,751, and the patent to said Minor White.”
    Respondent avers that said Minor White conveyed the land in question, in 1828, to his brother William D. White, who died in 1829, intestate, and seized of said land, leaving this defendant and his sister Elmira, now the wife of William S. McKay, his children and only heirs at law. The possession of complainant is not admitted.
    In an amendment to his bill, the complainant represents that prior to the filing of his original bill, he had sold the premises in thrqe several parcels to A. Harris, J. O. S. Langton, and P. Fuller, respectively, who were actually in possession under title bonds as complainant’s vendees when the original bill was filed, and still are in such possession, except Fuller, who has assigned to Daniel Rice, the latter being in possession. In the same amended bill, the Mc-Kays are made parties.
    *The answer of the McKays exhibits a certified- copy of the Saunders entry, showing the words, “ John M. Gregory’s survey,” instead of “John McGregories” -as given in the bill. The copy of the survey also differs from the version in the bill, beginning : “ Surveyed for the representative or representatives of Thomas Saunders, deceased.” The answer says, that when respondent, Elmira, and her brother, inherited the land, they were quite young, and wholly ignorant of their ownership of said land, “ and so continued ignorant until about the year 1846. That the taxes upon said land were regularly paid by the said William D. White, and those under whom he claimed, until the 1829, when they ceased to be paid in consequence of tbe ignorance of tbe said heirs of the •said William D., of their rights thereto. That in the year 1846, the ■said W. Lee White, having ascertained that he with defendant Elmira, were entitled to this land, visited the State of Ohio for the purpose of looking after it, and having found it, he found Annanias Harris, Jas. O. S. Langton, and Philo Puller in possession thereof, ■claiming title thereto under a sale thereof for taxes; he attempted to make a compromise with them, but was unable to do so, and he left the matter in the hands of M. J. Gilbert, Esq., of Columbus, to be attended to.” Eespondents further say, that the complainant well knew when he purchased, of this actual possession by Harris and the others, claiming as aforesaid; that H. and the others, or those claiming under them, have ever since been in possession, “ and that complainant is not now nor ever was, in the possession of said premises, otherwise or in any other manner than as follows: that is to say, very shortly after the issuing of his said patent, he exhibited the same to said Harris, Langton, and Puller, and claimed to be the •owner of said land, under and by virtue thereof; that the said H., L., and F., finding complainant had a patent for said land, and fearing their tax title would not be sufficient to hold the land, agreed to compromise with defendant and buy in his title,” etc.
    The deposition of Langton, taken by complainants, shows the facts stated in the amended bill as to the sale to Langton, *Harris, and Fuller, and also shows the facts stated in the answer of the McKays as to the possession of M, L., and F., and their claim under tax title.
    The deposition of John Graham, taken by defendants, referring to a plat of the surveys of Charles Sims, No. 1,187; John M. Gregory, No. 3,679; Wm. Taylor, No. 3,744; Wm. Brown, No. 1,478; and Saunders, says, that survey No. 3,751 covers the land, as shown by the connected plat; that there could be no difficulty in locating it from its calls; that the call for survey No. 3,161, is evidently an error in the locator, as clearly shown by the other calls of the survey; that the witness has no. doubt the call should have been for John M. Gregory’s survey, No. 3,679, as said Gregory has a survey of that number, located as represented by the connected plat referred to ; that the witness finds from an examination of the Book of Entries in the state auditor’s office, that entry No. 3,161 stands next above No. 3,679 ; that the witness does not well see how any one could be misled by the call for survey No. 3,161; that survey 3,161- is not Gregory’s survey; it is a survey for George McCredie, and is on the waters of Beaver’s Run; that the course, distances, and timber, called for in survey 3,161, do not correspond with the calls of survey No. 3,751; that the calls in the last-named survey for Brown’s back line and for the corner an'd line of Taylor, No. 3744, would show at once the error in the call for the number of Gregory’s survey. The witness says he is a surveyor; that he is familiar with the manner of keeping the entry and survey books of the Yirginia Military District; that the figures and letter, “233 B,” which appear in the margin of the entry book opposite entry No. 3,751, indicate that the record of survey of entry No. 3,751, will be found in book B, page 233; that that kind of reference is made on the entry-book to all entries that are surveyed, except where omitted through neglect. On cross-examination, the witness says, that from the calls of the Saunders entry, he should not have known where to locate it; that there is no entry or survey 3,161, in the name of JohnM. Gregory; entry and survey *No. 3,161 are in the name of George McCredie, and situated, the witness thinks, in Logan county. The witness does not think he could have located the entry at all. The witness further states, that the books in the state auditor’s office, which he understands to be copies of the original, show that survey No. 3,751 is founded upon this entry. The witness thinks there are as many as seven or eight entries and surveys in the name of Gregory, of which but throe were prior to the Saunders survey; and that there was one at the time of entry 3,751 on the waters of Darby’s creek; that entry, the witness believes, was made in the name of “ John Munford Gregory.”
    
      Swan & Andrews, for complainant.
    
      E. Backus, for defendants.
   Thurman J.

We are of opinion that the complainant shows a sufficient possession to entitle him to maintain a bill quia timet. In Clark v. Hubbard, 8 Ohio, 385, the court, speaking of the statute relating to such bills, said: “ By this section of the law, a complainant, in order to sustain his bill, must show, not only that ho is vested with a legal title, but with the actual possession of the land in controversy.” By this it was not intended to assert that the complainant must himself occupy the land ; for, in considering the cross-bill of Hubbard n. Clark, the court held that Hubbard had the actual possession required by the statute, although the fact was, that the land, or at least some part of it, was in the actual occupancy of his tenants. In the language of the court, “ Hubbard, by himself or tenants,” was in possession.

How is it in the present case ? Thomas does not himself occupy the land, but his vendees, or their assigns, to whom as yet no conveyance has been made, do occupy it. They are in possession claiming title under Thomas, and not adversely to him. Under such circumstances, their possession is his posssssion, so far as the present question is concerned. To- hold otherwise, would to some extent defeat the object of the statute, and might produce serious mischief. Eor a vendee *whohas not acquired the legal title, can not sustain a bill of peace, since no other kind of title will suffice; and if his vendor, who holds that title, can. not have the-bill, because the vendee is in possession, then no one can have it.

It is contended, however, that Thomas’ vendees are not in possession under him. It is said that they were in possession, claiming by tax title, when he sold to them, and that they yet may repudiate their purchases and hold possession adversely to him. To this it is a sufficient answer, that they do not seek to avoid their contracts or to hold adversely. According to the evidence, the contracts are in full force, and they claim under Thomas. "Whether they would be permitted to set up an adverse title, it is unnecessary for us to decide. Nor is it necessary to say whether, strictly speaking, the relation of landlord and tenant exists between him and them. It is sufficient that, under the circumstances, their possession as his vendees, is his possession within the meaning of the statute authorizing bills of peace to be filed.

The next inquiry is, has the complainant the legal title to the land? For he must have both legal title and possession, to main-a bill guia timet. His patent bears date, August 23, 1847. The-patent under which the defendants claim, was issued December 12, 1815. If, therefore, this latter patent covers the land in controversy, and is not void, it is clear that the legal title is not in the-complainant. That it covers the land, there can be no doubt. True, in one particular of the description, there is an error, but the other-particulars are amply sufficient to correct the mistake and identify the land. A misdescription in one or more particulars, is of no consequence, if the residue of the description enables us to correct the error and ascertain the land meant to be conveyed.

Is it void? It is argued that it is, because, as is said, the entry ■upon which it was founded, was void for uncertainty, and hence the patent is also void. But this inference is clearly a non sequitur. Where an entry is made contrary to the proviso in the act of 1807, .and the similar provisos in subsequent acts, not only is the entry void, but also any patent ^issued in pursuance of it. But this results, not from the invalidity of the entry, but from the express provision of these acts that the patent shall be void. But •the case before us is altogether different. The entry under which "the defendants claim, was made in 1799, long before the act of 1807 was passed, and the land in controversy was then vacant. And the only survey of it that had been made prior to the emanation ■of the defendant’s patent, was that upon which that patent issued.

Let it be supposed, then, that the entry was void, does that fact invalidate the patent ? The authorities all answer this question in the negative. No matter what objections exist to an entry or survey other than those specified in the provisos before mentioned; nay, let there be no entry or survey at all, yet if the government issue a patent it operates a transfer of the legal title to the premises described in it. Thus, in Hoofnagle v. Anderson, 7 Wheat. 212, the Supreme Court of the United States decided that a patent appropriated the land it covered, notwithstanding it was issued upon an entry and survey made upon an erroneous warrant; which warrant, the same court had previously decided, in Miller v. Kerr, 7 Wheat. 1, would not sustain an unpatented entry and survey. “ It is not doubted,” said the court, “that a patent appropriates land. Any defects in the preliminary steps, which are required by law, are •cured by the patent. It is a title from its date, and has always been held conclusive against all those whose rights did not commence previous to its emanation. Courts of equity have considered •an entry as the commencement of title, and have sustained a valid entry against a patent founded on a prior defective entry, if issued after such valid entry was made. But they have gone no further. They have never sustained an entry after the date of the patent. They have always rejected such claims. The reason is obvious. A patent appropriates the land it covers; and that land being no longer vacant, is no longer subject to location. If the patent has been issued irregularly, the government may provide means for repealing it; but no individual has a right to *annul it, to consider the land as still vacant, and to appropriate it to himself.”

From this ease, it is obvious that the legal title passed by the-patent under which the defendants claim, and that if the complainant, Thomas, has any rights, they are merely equitable. But an equitable title will not sustain a bill of peace.

The- courts in this state have always followed the decision in Hoofnagle v. Anderson. Thus, in Porter v. Robb, 7 Ohio, 209, the court said : “ After a patent issues, the power of the party over his warrant or location is gone. The entry or location has been made under his direction; he has returned to the government his survey and warrant, and asked for and received a grant vesting in him the-fee of the land granted, whether it was in his entry or not; whether his entry was good or not.”

To tho same effect are Price v. Johnston, 1 Ohio St. 390, and Stubblefield v. Boggs, decided at the present term of this court.

As then, the complainant is not seized of a legal estate, he is not. entitled to an injunction.

We would consider whether he has an equity, entitling him to a release of the legal title, wore it not that the counsel on both sides-have treated the bill as a bill of peace merely, and have argued the case in no other point of view. We may remark, however, lest what we have said might lead to misapprehension, that, as at preseni^advised, we are by'no means prepared to say that the.entry under which the defendants claim was void. That there is an error-in one of its calls is undeniable; but it is quite possible that the other particulars of description contained in it are sufficient to-correct the mistake and identify the land.

Bill dismissed.  