THIS was an appeal from the decree of the Circuit Court for
the district of Kentucky, in a suit in chancery, brought by Finley to compel Williams and others, who had the elder patent, to convey certain lands to the Complainant which he claimed by virtue of a prior settlement.
The cause was argued by POPE, for the Appellants, and CLAY, for the Appellees, on the 22d of February, 1813, in the absence of the reporter.
February 28th, 1815. Absent. TODD, J.
MARSHALL, Ch. J. delivered the opinion of the Court as follows:
This cause depends on the land law of Virginia, which is also the land law of Kentucky, that state having formed a part of Virginia when the act was passed in which the titles of both Plaintiff and Defendant originated. Both parties claim the land in controversy by virtue of improvements made previous to the first day of January, 1778, which improvements were recognized by the act generally termed 'the previous title law,' and gave the persons making them a pre-emption of one thousand acres of land, to include the improvement, on paying therefor the price at which the state sold its vacant lands, 'provided they respectively demand and prove their right to such pre-emption before the commissioners for the county to be appointed by virtue of this act, within eight months.'
In the year 1781 an act passed which, after reciting that, by the discontinuance of the commissioners in the district of Kentucky, many good people of the commonwealth were prevented from proving their rights of settlement and pre-emption in due time, owing to their being engaged in the public service of this country, enacts that the county Courts in which such lands may lie be empowered and required to hear and determine such disputes, and that the register of the land office be empowered and directed to grant titles on the determinations of such Courts, in the same manner as if the commissioners had determined the same.
It appears that, in the year 1773, John Finley, the Plaintiff in the cause, marked and improved the land in controversy. He entered into the continental service in the year 1776, and continued therein throughout the war. His claim was not made before the commissioners, but was made to the Court of the county in which the lands lie, by which Court his claim was allowed, and the following certificate was granted: 'At a Court held for the county of Fayette, March 12th, 1782, application and satisfactory proof being made, this Court doth certify that John Finley is entitled to the pre-emption of 1000 acres of land, sitnate the on main branch of Licking Creek, to include an improvement made in the year 1773, by said Finley, and to be bounded by a survey made, at the time, for him, which includes the Upper Blue Lick, by virtue of such marking out and improving, and his being in public service when the commissioners sat in the district, and thereby prevented applying for the same.'
A pre-emption warrant was obtained, and, on the 14th day of November, in the year 1783, an entry was made with the proper surveyor in the following words: 'John Finley enters 1000 acres of land on a pre-emption warrant, No. 2526, on Licking, to include the Upper Blue Lick, and bounded on three sides by the line of an old survey made in the year 1773, beginning,' &c. This entry was surveyed, and a patent issued thereon.
William Lynn, under whom the Defendants claim, made an improvement on the same ground, in the year 1775, and laid his claim before the commissioners, who allowed the same, and granted a certificate therefor, dated the 20th day of November, in the year 1779, in the following words: 'William Lynn this day claimed a pre-emption of one thousand acres of land at the state price, lying on the south side of Licking Creek, known by the name of the Big Blue Lick, to include the said lick, lying in a short bent of the said creek, by improving the same in the year 1775, &c.' On the 22d of June, 1780, Lynn, having obtained a pre-emption warrant, entered the same with the proper surveyor, in these words: 'William Lynn, James Barbour and John Williams enter 1000 acres of land upon a pre-emption warrant, beginning a quarter of a mile below the Big Blue Lick on Licking, on the south side thereof, running on both sides of the said creek, and east and south for quantity.' This entry was so surveyed as to include the lands in dispute, and a patent was obtained thereon of an earlier date than that of Finley. Upon this patent an ejectment was brought, and judgment obtained by Lynn, Barbour and Williams. Finley has brought this suit to compel a conveyance of that part of the land held by Lynn and others, which is included in his patent. On a hearing, it was the opinion of the Circuit Court that Lynn and others held the better title; in conformity with which a decree was made. From that decree Findley has appealed to this Court.
The peculiar state of titles to land in Kentucky, a senior patent being, in many cases, issued on a junior title, and it being a rule in their Courts of law not to look beyond the patent, have settled the principle that Courts of equity will sustain a bill brought for the purpose of establishing the prior title by entry, and of obtaining a conveyance from the person holding under a senior patent issued on a junior entry. The Courts of the United States have conformed to this practice, and adopted the principle.
It is also settled in Kentucky that, between pre-emption rights, the prior improvement will hold the land, although the certificate of the commissioners, the entry, the survey and the patent, be all posterior, in point of time, to those obtained by the person who has made an improvement of a later date.
It follows, from these established principles, that Findley must prevail, unless he has lost the right acquired in consequence of his improvement.
The Circuit judge was of opinion that this right was lost by the form of his entry with the surveyor. Not having, in that entry, called, in terms, for his improvement, that judge was of opinion that, although his entry does, in fact, comprehend his improvement, yet he has surrandered the preference which his pre-emption warrant gave him, and sunk his claim to the level of a common treasury warrant. This Court can perceive no reason for that opinion. The law requires that the entry shall, in fact, include the improvement, but does not make it essential to the dignity of the entry that the improvement shall, in terms, be called for. The certificate expressly states that the land granted ...