Hunt v. Wickliffe

THIS was an appeal from the circuit court of Kentucky, in which court the appellants had filed a bill against the appellee, claiming from him a conveyance of the legal title to certain lands in the state of Kentucky, to which the appellee had the legal title; but by the appellants it was alleged, that they had a prior equitable title, derived under certain entries made in the land office of that state. The bill was dismissed by the circuit without costs, and from the decree of dismissal an appeal was entered to this Court.

The defendant, Robert Wickliffe, claimed the land under patents to John Craig for 2000 acres, dated 2d of December 1785, and to A. Fox and John Craig for 2000 acres, dated on the same day. He also asserted a possession, protected by the statute of limitations. The title under these patents interferes with the entries under which the appellants claimed; and the appellants in the circuit court sought to obtain a conveyance of all the interference, and also other portions of the grants to Floyd, not included within the boundaries of Craig's, and Craig and Fox's patents.

The entries under which the heirs of John Floyd and those who hold under them claim the land, were as follows:

'1779, October 29. John Floyd this day appeared and claimed a right to a settlement and pre-emption to a tract of land, lying on Four Mile creek, eight miles north west from Boonsboro, including a plantation, claimed by the said Floyd, called Woodstock, raising corn on the premises-1776, satisfactory proof being made to the court, that said Floyd has a right to a settlement of 400 acres, including said improvement, and a pre-emption of 1,000 acres adjoining, and that a certificate issue, &c.'

Under this certificate for a settlement and pre-emption the entries were made.

'November 3d, 1779. John Floyd enters 400 acres of land by virtue of a certificate, &c., on Four Mile creek, about eight miles north west from Boonsboro, including a plantation called Woodstock.'

'1780, April 28. John Floyd, assignee of James Taylor, assignee of George Muse, enters 800 acres; as assignee of Lance, 200 acres, upon military warrants, between the lines of David Robinson and John Carter, Andrew Boyd, Thomas Barns and Jonathan Martin, on Four Mile creek.'

This entry appears to have been located in two surveys, and is designated on the plat 245 acres and 240 acres. The latter interferes with the land held by the appellee.

'April 19, 1778. John Floyd, assignee, enters 1,600 acres upon a military warrant, on Boon's creek, adjoining David Robinson's west line, extending along said line, and westwardly for quantity. A part of this appears to be surveyed in a survey of 246 acres, as represented on the plat.'

'May 31, 1783. John Floyd's heirs enter 1000 acres on a pre-emption warrant No. 1054, joining the settlement at Woodstock on the north east and north sides thereof, so as not to run into the old military surveys which are legal.'

These surveys all adjoin, and were patented in January 1789 to Mourning, George, John Floyd, and Jane Breckenridge, wife of Alexander Breckenridge, formerly Jane Floyd, widow of said John Floyd.

The appellants had, under a decree of the Fayette circuit court of Kentucky, obtained a conveyance from the patentee of 694 acres, part of the land embraced in these surveys.

The appellee had made no effort to establish the entries under which he claimed, relying upon his elder legal title, and an asserted possession.

Mr Buckner, for the appellants, insisted: 1. That the entries of Floyd were valid, as supported by the testimony in the cause.

2. That by the deposition of J. W. Hunt, a witness in the cause, it was proved that they and those from whom they derive title have had the possession of the land since 1800.

3. The greater part of the survey of 200 acres of the defendant, made in the name of Craig and Fox, is within the claim of the appellants.

4. The bill of the complainants ought not to have been dismissed, but if all who are interested in the claim were not before the court leave should have been given to make new parties.

He argued that the objects called for in the entries of Floyd, were notorious at the time they were respectively made; and he referred to the evidence contained in the depositions of the witnesses to support the position. To show that the call to exclude 'old military surveys which are legal,' did not vitiate the entry, he cited the following cases. Drake vs. Ramsey & Logan, Hardin's Rep. 34. 383. 386. 2 Marshall's Rep. 395. Jackson vs. Johnson's Heirs, 1 Bibb, 61. Overton & Reed vs. Roberts, 4 Bibb, 156.

As to the question of possession, relied upon by the appellee; it was insisted that the deposition of Hunt, in relation to the possession of the appellants, was contradicted but by one witness, and was entitled to belief. There was no satisfactory evidence of any possession in the appellee. He also urged, that to enable a party to protect himself under the statute of limitations, upon which the appellee relied, proof of a continued, uninterrupted possession for twenty years should be established, by clear and satisfactory testimony, and this had not been done.

A right of entry is not taken away by a possession without claim of title; and therefore if the possession of the appellee existed before the date of his patents, it will not avail. The time intended by the statute, never commences until the possession is adverse.

If, however, it were conceded that the evidence of the witness examined on the part of the appellee, proved that he took possession of any part of the land in controversy prior to the possession of the appellants, no benefit could result to the appellee for the same, beyond the boundary of the portion of the land which the person taking possession of the land intended to adopt. The quo animo in which an entry on lands is made, will determine the extent of the possession acquired by the entry. He cited Clark vs. Lynn's Heirs, 1 Marshall's Rep. 347.

Admitting the proof of the appellee to be conclusive as to such portion of the land as is within the boundary intended, when the possession was taken; there remained for the appellants a considerable part to which the statute of limitations could not apply.

While he freely conceded that all who should have been made parties to the complainant's bill were not before the circuit court, yet, as the entries under which the complainants in the bill claimed were valid, and their title had been sanctioned by the decree of the Fayette circuit court; and as it was manifest that the appellants had the superior equity; he contended that this Court would reverse the decision of the court below, and remand the cause, with leave to amend the bill, and make all persons parties who were required by the rules of chancery; in order for a final decision upon the real merits of the case.

Mr C. A. Wickliffe, for the appellee, contended:

1. That the presumptive entry of 1000 acres of Floyd was void, upon the principle well settled by the courts of Kentucky, that every call of an entry which might give it shape or locality, and which are, in the adjudications of those courts, denominated 'locative calls,' must be proven; and the objects called for should have been notorious at the date of the entry.

2. The entry is bad on the face of it. It is vague in the call to adjoin the settlement on the north and south sides, 'so as not to run into the old military surveys which are legal.'

3. The location, or presumptive entry is void upon the ground that the land law of Virginia and Kentucky never did authorise an entry to be made in any other way, than by the proper names of the person locating.

He argued, that the requisition 'to adjoin the settlement on the north and south sides, so as not to run into the old military surveys,' was indefinite. The land might adjoin on all sides with equal propriety. A subsequent locator would in vain look for the precise position of such lands. The injunction 'so as not to run into old surveys,' would give no information of any certain character. What surveys were they? How could any one know, without the particular survey had been stated, which of the old surveys were good, and which were bad? and yet, this knowledge was essential. He cited in support of his arguments on these points, 1 Bibb, 10. Williams vs. Taylor, 1 Bibb, 41. 6. 1 Bibb, 35. 127. 135, 6. 138. 29, 30. Cox vs. Smith, Hardin's Rep. 411. Grubbs vs. Rice, 2 Bibb, 110. Walker vs. Montgomery, 2 Bibb, 259. Kincard vs. Blythe, 2 Bibb, 479. 476. Thomas vs. Bowman, 3 Bibb, 128. 132. Also 3 Bibb, 162. 543. 4 Bibb, 132. Howard vs. Todd and others, in 1 Marshall's Reports.

He also urged that the entry in the name of 'the heirs of John Floyd' was indefinite, and therefore void; as those terms did not designate the persons to take, the same having been made in 1783, before the law abolishing primogeniture. The land therefore descended to the heirs at law, and it is not shown who is such heir. The complainants in the circuit court did not show any title to the land claimed by them, derived from the persons who are alleged to have been the proprietors, as heirs of John Floyd.

The appellants must not only show an equitable title out of the appellees, but they must connect themselves with it. Upon the evidence on the record, there are parties who have or had an interest in the land as heirs or under the heirs of John Floyd; and those persons were not before the court, or the proper course pursued to authorize a decree against them in their absence. Breckenridge's heirs were not legally called upon, and the circuit court rightfully dismissed the bill.

It was also contended, that the appellants are not entitled to relief upon the further grounds, that the patents to Craig, and to Fox and Craig, were more than thirty years old, before the commencement of the suit. That there is proved an actual adverse possession of more than twenty years before the commencement of the suit by the appellee, and those under whom he claims; and that the evidence upon the record fully established these positions; and the counsel to prove the same went fully into an examination of the depositions of the witnesses.

He also said, that the appellee had the first legal possession within the interference. And although that possession was by a tenant and purchaser, it extended itself to the limits of the elder title of the appellee, unless it can be shown to have been restricted by limits. Kendall et al. vs. Slaughter, 1 Marshall, 376.

In Miller vs. Humphries, 2 Marshall, 448, it was held that if there was an entry of an elder patentee, on an interference before the entry of his adversary, the elder patentee is in possession to the extent of the claim, and the subsequent entry of the junior patentee, is an ouster only to the extent of the claim of the junior grantee. Also cited Green vs. Liter et al. 8 Cranch, 229. 2 Wheaton, 229.

Mr Chief Justice MARSHALL delivered the opinion of the Court.