34 Ky. 403 | Ky. Ct. App. | 1836
delivered the following Opinion of the Court in this case, on the 4th of June last. A petition for a rehearing was afterwards presented, by which the decision was suspended till this date, when the petition was overruled,
On the 22d of Janury, 1776, a warrant for two thousand acres of land, which had been procured by James Allen, under the proclamation of “63,” was surveyed “in the “ (then) county of Fincastle, on the waters of Salt Riv- “ er—beginning on a fork where the north branch is “ about ten yards wide, at two buckeyes, two sugar “ trees and a hickory, running north eight hundred poles, “ &c. &c.”
On the 8th of March, 1781, a pre-emption warrant for one thousand acres, was surveyed for Squire Boone, calling to adjoin his settlement, and to lie on both sides of Clear Creek; and a patent was issued March 10th, 1786.
On the 25th of January, 1783, a survey was made in-the name of Joseph Helm, as assignee of William Helm, on an entry on a Treasury warrant, on both sides of Clear Creek &c. &c.
On the 3d of February, 1783, Joseph Helm entered* on a military warrant, fifteen hundred acres “on the wa- “ ters of Clear Creek, adjoining Allen’s survey on the “ west, running north with his line,, th.en.ce west, then “ south, to Boone’s pre-emption, then with Helm’s line- “ north, then east to the beginning.”' On the 22d of September, 1798, a survey was made conformably with the enti’y, and a grant was issued on the 13th of May, 1799.
Helm’s survey for fifteen hundred acres interfering, to a considerable extent, with the. boundary of a patent which had been issued to Boone, on a Treasury warrant, he filed a bill in chancery, on the 2d of October,. 1819,
After the return of the. cause to the Circuit Court, Boone and Talbot moved for leave to file a supplemental answer, relying on the defence already suggested as having been asserted during the pendency of the appeal in this Court, apd also, on the additional ground of an alleged adversary possession of an inconsiderable portion of the land, for more than twenty years antecedently to the institution of this suit. But the Circuit Court overruled the motion; and having rendered a final decree in favor, of Helm, for all the land common to the two conflicting surveys—Boope and Talbot now complain, and insist on a reversal, for several reasons, which we will proceed, briefly and successively, .to consider.
First. The appellants insist that, the Circuit Court erred in refusing to permit the supplemental answer to be filed.
Although \ye are disposed to consider the decree of
But, waiving this matter, we are, on other grounds, of the opinion that the Court below did not err in overruling the motion for leave to file the supplemental answer.
By permitting, as that Court did, the patent of Squire Boone to be filed, one of the points proposed by the supplement—that is, whether the Legislature of Kentucky had, consistently with the compact between Virginia and Kentucky, authority to extend the time prescribed by the laws of Virginia for surveying entries, so as to affect private rights to land which had accrued under the laws of the latter state prior to the separation— was judicially presented, and as availably as it could have been by the rejected answer. And, as to the only remaining point which the appellants attempted to raise by the rejected answer, that is, the alleged bar claimed as resulting from lapse of time and adverse occupancy— we do not doubt that, conceding to the Circuit Court plenary discretion when the supplemental answer was offered, the record is insufficient to show that there was any such abuse of sound judicial discretion, in rejecting the answer, as would authorize a reversal. The appellants did not show, or even suggest, why they had not sooner pleaded the lapse of time. They only stated that, they had recently discovered a witness by whom they could prove certain facts tending, in their opinion, to sustain such a defence. Did they not, when they filed their original answer, or before the decree of 1821 was pronounced, know whether they were entitled to,
We are, therefore, of the opinion that there was no error in the rejection of the supplemental answer.
Second. The next objection which has been made to the decree, is that, so far as the title of Squire Boone was concerned, Helm’s survey, in 1798, was void, and the claim founded upon it, therefore, invalid; because, as argued, to that extent, the attempt, by the Legislature of Kentucky, to extend the time for making surveys of Virginia, entries, was inconsistent with that portion of the compact between the two states, which stipulated that, “all the private rights and interests of “ land within the said district (Kentucky) derived from “ the laws of Virginia prior to such separation, shall re- “ main valid and secure, under the laws of the proposed state, and shall be determined by the laws now existing in “ this; state” (Virginia.)
The important question thus presented, has never been settled by this Court, or by any other authoritative tribunal, so far as we know or believe.
In Hoy’s Heirs v. McMurry et al. 1 Litt. Rep. 365, this Court expressed an opinion coincident with the argument now made by the appellants. But, on re-considerqtion, the case being decided on another point, that opin
In McCracken's Heirs v. Beall and Bowman, (3 Mar. 209,) this Court decided that an entry, survey and patent in the name of a dead man, prior to the separation of this state from Virginia, were void; and that the statute of 1792$ of this state, for vesting the title, in such a case, in the heirs of the grantee, should not be construed as retro-acting, consistently with the Compact, so as to affect an adversary right to the same land which had been perfected prior to the separation, and which, therefore, at that time, was, according to the laws then in force, unaffected by the claim in the name of the dead man.
And in Beard v. Smith (6 Mon. 430,) although the point, we are now about to consider, was extensively discus* sed by the only two Judges who adjudicated in that case, yet it was not decided—Chief Justice Bibb arguing, most elaborately, to prove that the legislative prolonga* tion, by Kentucky, of the time of'surveying Virginia entries, was not, in any respect, incompatible- with the compact; and Judge Mills reasoning, in extenso, to show? chiefly, that the question was not raised, and that, therefore, a decision of it would be premature and extraju* dicial.
These are the only cases, now recollected, in which the vexed question, now to be decided, has been directly and judicially considered by this Court.
It seems to us that, whether the letter or the spirit of* the foregoing stipulation in the compact, or the language or the motives of the parties to it, be properly consider* ed, the more rational, just, and consistent conclusion must be, that, so far as claimants to land, within the lim* its of the state about to be established, who had acquired rights, whether perfect or imperfect, under the laws of Virginia, and with confidence in the stability and integrity of those laws, might be concerned, Kentucky should, in good faith, acknowledge all rights thus acquired, and, representing Virginia in maintaining and effectuating the legal system which had been adopted by that parent state, should not, of course, destroy or invalidate,
We are not able to perceive any sufficient ground for any such discrimination. By saving the right of A, Kentucky does not invalidate' that of B-. If B’s right were good, no indulgence extended to A, can have made it bad; and if it were not valid, he cannot complain of any injustice to himself in the legislative-indulgence to A; because, if A’s inceptive fight had become void, his own title could not thereby have been made good, and Kentucky would have an undoubted power to appropriate the land to her own use. Nor, if B’s right, though good. Were posterior ill its origin, or inferior in merit; to that of A, and would, therefore, hold the land in the event of A’s becoming afterwards void, would lie have any just cause to complain of Kentucky, for not permitting the law to expire which would save A’s right from forfeiture; for, still, B’s right would “remain” as “secure” and “valid” as it was at the date of the compact, and its validity must still be tested by the laws in force at that time, or at the time of the separation; and he would have no more reason for excepting to the act of indulgence to A, than he would have had to an act extending the time which, at the date of the separation—he then being in the adverse possession of the land—was ■prescribed by the laws of Virginia for bringing suits for land; because, if he had aright to expect that his
But this interpretation of the compact is fortified by a proper consideration of the policy and objects of the parties to it.
Virginia, about to yield her sovereign dominion over a portion of her territory in which many persons had, for a valuable consideration received by her,- acquired interests according to her laws, thought fit to exact from her successor a pledge, that those rights should con* tinue to be regarded according to those laws, and that, taking the territory, as the ceding sovereign held it, subject to all just private claims, Kentucky should not appropriated*) her own use, or convert to her own profit, any land which had been appropriated conformably with the laws then existing, and that those private interests should be adjudged according to the laws which vested them. The stipulation, made to effect that ob* ject, was precautionary and just, and was intendedonly to guaranty, by treaty, that "which, in the nature of things, was morally and politically right; and that is, that the new sovereign should take the territory, voluntarily ceded, just as the ceding, sovereign held it, and
Thus it is evident that Virginia had not deemed the time of surveying to be essential, and was not disposed to limit it immutably. And it is equally evident, not only from her own practice, but from the nature and object of such a limitation, that she could have had no motive for exacting from Kentucky a pledge, that she would allow no further time for perfecting the very titles, the security of which was one of the objects of the compact. Jls Vim ginia had not considered such, indulgences incompatible with the rights of conflicting claimants, it should not be presumed that she was unwilling that her own policy should b§ observed by Kentucky in the continued grant o.f similar
Kentucky, taking the place of Virginia, succeeded to all the. same rights and sovereign power, and was free under the compact to do, in a spirit of justice, what Virginia, in the like spirit, had done and might, without
Whilst surrendering her sovereignty to Kentucky, Virginia did not intend to maim or curtail it farther than by exacting a pledge that it should, as far as Virginia land’ titles might be concerned, be subjected to the paramount obligations of public faith and of justice to private rights. Any other interpretation of the compact would not only be inconsistent with its ends and motives, but would tend to the gratuitous disfranchisement and degradation of Kentucky.
And, what is a private right to land? and, what is justice to such a private right? The right is that which had been acquired under the sanction of law, and which, therefore, is entitled to the protection of law. But, surely, it is no part of that right, or of the security which it may demand, as essential to its existence or validity, that a time which had been prescribed for perfecting all imperfect rights, should never be extended. And it is perfect justice to the right itself,-to permit it to be enjoyed according to its nature, and to sustain its validity. No statute for prolonging the time for surveying entines, ever, in the slightest degree, impaired any right or title to land; and notwithstanding such indulgences, every claim to land is, in itself, as valid as it would have been had there been no indulgence;- and its validity will be tested by the laws under the authority of which it was acquired. Whether a rival claim be valid, or invalid, superior or inferior, is another question altogether. If a. good elder entry become void or be forfeited, a junior qntry might then become available; and the value of the latter entry would depend, prior to the extinguishment of its superior, on the possibility that the holder of it might, negligently or otherwise, permit it to be extinguished. Such a contingency can vest no right until after it shall have occurred; and without its occurrence, the inferior claim can give no right against the only true owner of the land. If the true owner should forfeit his right, another claimant may thereby acquire an available interest; so may amy other person, if the land should be.com.e vacant.
Although the Supreme Court of the United States has not conclusively settled this question, yet it has given very strong intimations of what its opinion is. In. Miller's Heirs v. McIntire, 11 Wheat. 442, the Chief Justice observed, that some of the Judges were of the opinion that there could be but one appropriation of the same land, and that a “second entry” was unauthorized, and that a patent founded on it would be_ void; but that others" of the Court were of the opinion that, “a subsequent entry was hot absolutely-void;” but that they thought, also, that the “possibility” of its becoming good, “ could not attach itself absolutely to the land, until it “ became vacant;” that—“till such vacancy actually oc- “ curred, the power remained with the state to give fur- “ ther time for perfecting titles; and that, the state, “ therefore, might grant indulgences in this respect, with- “ out giving just cause of complaint to a person whose “ interest, if he had any, was potential, not vested, was “ rather a preemption, to the exclusion of others sub* “ sequent to himself, than a positive acquisition which “ could in any manner interfere with the rights of the “ person who had made a previous appropriation.’-’
And this may, we think, be fairly,inferred to have been the opinion of all the Judges, in that case; And is it not plainly reasonable?
, What right has any one “to inier/ere” with the rights of the first or best appropriator, as long as those rights remain? and who, but the Slate, can say when, or whether at all, they shall be forfeited?
In Kendall v. Slaughter, (1 Marshall, 378,) this Court expressed, arguendo, the same opinion as that intimated from the National Bench. But neither of these appellate tribunals having expressly decided the question, we have referred to these cases as argument, not as author-
Had a forfeiture ever bééri permitted to Occur, their holders of unforfeited claims would have had vested rights by operation of law, and, so far as they might have been concerned, a subsequent prolongation of the time of surveying might have been ineffectual; and this is the only principle of the doctrine which has been referred to as having been settled in the case of Me Crack-en's Heirs v. Beal fyc. 3 Marshall.
The fact, that Boone had obtained a grant prior to thé separation, is not deemed material; for nevertheless, Helm, still being the true owner in equity, had a right to have his title perfected by Kentucky after-the sepa¿ ration; and Kentucky had a right to continué the unexpired indulgence as to the time of surveying the entry.
It is, therefore, our opinion that, lio hdlder of a claim, inferior in either equity Or law, has any right to object to the legislative extension of the time for surveying all Virginia entries, or to insist that there was any guarantee that a limitation, once prescribed, should never be enlarged; If Kentucky had no power to continue the limitation, she would have had no power to prescribe &nv limitation, in all time, had there been none at the time of the separation: and the absurdity of such a conclusion.must be universally felt and acknowledged; Public policy alone dictated, and such policy alone should control, all such limitations.
Wherefore, we are of the opinion that Helm’s entry was not forfeited.
Third. The only remaining principal objection to the decree is, that the entry is uncertain, vague and invalid; This Court, in the case of Withers et ux. vs. Helm (1 Mar. 145,) decided, that this same entry was valid; and the evidence in that case, and in this, was substantially the same. In each case, the notoriety of Allen’s survey, and of Boone’s pre-emption, at Boone’s station, on his settlement adjoining his pre-emption, and at the date of Helm’s entry, is established by several witnesses. In this case, however, a fact appears which was not shown
But,as the occupants of Boone’s station, in 1781, took refuge in the neighboring forts, we should presume that a subsequent locator, by enquiring at any of those places, in 1783, after the date of Helm’s entry, might have ascertained the position and identity of Allen’s survey and of Boone’s settlement, on the waters of Clear creek. mi r , , , • • i i i ,,i , ,, ihe very iact that the station had been “broken up, would tend to give it notoriety, and that alone would - . , , , . , , V . I I II • iurmsh a clue which, when applied to the other calls m the entry, would have identified it.
Boone’s settlement and Allen’s survey having béeñ, or being presumed to have been, notorious, and subsequent locators being sufficiently notified, by the calls in Helm’s entry, that his fifteen hundred acres must lie between Allen, on the east, and Boone, on the south, and was also bounded by W. Helm’s survey on two lines succeeding that which terminated in Boone’s north line, the apparent -I . . . , ,1 . lie vagueness of the entry, m its indefinite calls lor courses and general objects, without specification as to precise locality or distance, will be found, upon proper scrutiny^ not to exist, except as to a comparatively small portion of the land in controversy in this suit. The only difficulty which might have perplexed a subsequent locator,
But, as to the residue of the survey, not embraced by the entry, as established by the concurrent opinions of Pur predecessors and ourselves, we feel unable, after the most anxious and scrutinizing deliberation, to sustain it as conformable with an entry certain and intelligible in any reasonable degree.
Before a subsequent locator could be expected, by ordinary diligence, to identify any one line or corner of the appellee’s boundary, it would have been indispensable for him to find and identify William Helm’s survey; this be might easily have done, without any other informa, tion than that furnished by the calls of the appellee’s entry, and by the marks made by the surveyor. He would have rightly inferred, from the appellee’s entry, that William Heim’s survey adjoined Boone’s survey on the north, and was west of Allen’s survey. Then, with this clue, he would have traced Boone’s line, until he came to one of William Helm’s corners, upon or near it, and one
■ It is our opinion, then, that the entry should be deemed certain and valid, to the extent of a survey beginning where the appellee’s survey begins, in Allen’s line, and running with that line, so far north, as to include fifteen hundred acres, in a rectangular figure, approximating as nearly a square as may be consistent with the. call for Boone and William Helm; and that so far as the survey of the appellee- has departed from the figure thus described, it is variant from the entry—having one more line and course, and being, so far as these modify its shape, altogether unlike any kind of quadrangular figure.
Consequently, the decree of the Circuit Court is deemed erroneous, only so far as it directs a relinquishment pf the, legal title to such of the land in contest, as will not be embraced by a line running south to W. Helm’s-northwestern corner.
The only conceivable reason why the locator called to run south to Boone’s line, and then north with William Helm, without any other call, is, either that he did not know the exact relative position of those surveys, or that he omitted, thi-ough mistake, one of the calls which he contemplated.