Holmes v. Trout. v. Lee, Ibid. 27; Johnston v. Marshall, 4 Ibid. 134; Finlay v. Granger, 2 A. K. Marsh. 181; Moore v. Dood, 1 Ibid. 144; Theobalds v. Fowler, 3 Ibid. 579; Respuss v. Arnold, Hardin 116. The circuit court has reasoned so well on the notoriety and *identity of the entry, that it would seem a waste of time to repeat, in [*185 substance, what has been said by them. Indeed, it is believed, that before a court acquainted with the rules of decision in Kentucky, a controversy on the validity of Voss's entry would never have been raised, but for the opin ion of the court of appeals in the case of Meriwether v. Davidge, 2 Litt. 38, where the court decided, that the objects called for in Patton's entry had not been established, and that, consequently, Meriwether, who depended on Roberts, who depended on Patton, must fail against the elder patent of Davidge. But a recurrence to the evidence of that case and this, will show an entirely different state of proof. Besides, Voss and Allen call for the survey as actually made; whereas, Meriwether calls merely for the entry, without the aid of the survey. Taking it, therefore, as granted, that Voss's entry is fully established, we shall proceed to examine such parts of the controversy as we think require the revision of this court. The first point we will notice, in which we think the court erred, is that in which they decide the complainants have no equity beyond the quantity of 8500 acres, because the survey, on its face, purports to contain but that quantity. This error, has arisen, it is presumed, from an idea that the survey purported to survey a part, and not the whole entry, and that the balance. of the warrant was, or might have been, re-surveyed. Upon no other view of the case, can the decree be sustained. A reference to the survey, however, will show, that the surveyor purports to survey the entire entry, and the entry purports to locate the entire warrants. Both survey and entry recite the Nos. 8990 and 8991, and that in the same words, and neither survey nor entry expresses to appropriate a part of these warrants. The warrants do, in fact, contain 10,000 acres, and the entry purports to embrace 10,000 acres. The business of the surveyor was to survey the location, according to its locative calls, and he proceeded to do so, but according to his calculation, the entry only embraced 8500 acres of land, and he reports a survey on the entry and warrants as only containing 8500 acres, when in fact it embraces more than 10,000, for which the commonwealth made *her grant to [*186 Voss. By law, all the lands within the bounds of the grant as marked passed; and where patent-calls differ from the boundary as to quantity, in every case of the kind, from the foundation of the state, the Kentucky courts have held the grant to be good for the whole quantity embraced by the bounds, and not confined to the quantity expressed in the grant. In the old case of Beckley v. Bryan, Sneed 107, the court of appeals of Kentucky assigns unanswerable reasons why the marked boundary, and not the patent-calls, where they differ as to course of distance, sall prevail, to wit, the unevenness of grounds, and the mistakes of surveyors. This case, more than any other now remembered, illustrates and verifies what the court there assigns, as good reasons for departing from the face of the patent and adhering to actual boundary. Voss had 10,000 acres of land warrants-he made an entry on the whole warrants for 10,000 acres, and employed the surveyor to run out his entry. The surveyor does so, and reports that, owing to the course of the river, there is but 8500 acres of land Holmes v. Trout. in the entry. Such was the result of his mensuration and his calculations. Voss takes his patent, but when he has a fair circulation made, his entry holds out full 10,000 acres, as likewise does his patent. Now, all that is required, to succeed in a land contest in Kentucky, is, that the complainant show a valid entry, survey and patent, unless the defendant show an elder special entry. Voss had a valid entry (say the court) for all the land in contest. Voss's survey and patent cover his entry and all the land in contest. Well, why does he not succeed? Simply, because an ignorant surveyor, in making his estimate of the number of acres within the entry, committed the gross error of estimating his survey, containing full 10,000 acres, to contain only 8500. This mistake was not through the fault of Voss or his alienees, nor should it prejudice them. Certainly, the defendants cannot complain—their entries are good for nothing, and they surveyed on the face of Voss's special entry. They were bound to know they were in Voss's special entry, and equally bound to notice that Voss had, by actual meeting and bounding his survey, surveyed them in, by virtue of his entry. Here, we ask, had not Voss a special entry and survey for *187] the land in contest, and has not his alienee, Short, obtained, in virtue thereof, a patent? The answer must be yes! When this is granted, we hold, that Voss has manifested the best equitable right to the whole 10,000 acres in controversy. The next point to be considered, in which we think the court erred, is the manner in which they have directed Allen's land to be laid down. It is a settled principle of decision in the courts of Kentucky, that wherever the courts can, without doing violence to the other calls of the entry, they will decree it to be surveyed in a rectangular form. Hite v. Harrison, Hughes 15; Smith v. Grimes, Ibid. 18; Kennedy v. Payne, Hardin 10; Moore v. Harris, Sneed 27; Black v. Botts, 1 Bibb 96; Preeble v. Vanhoozer, 2 Ibid. 120, and numerous others. Allen calls to begin at Patton's north-west corner of his survey, and run, with his line, south, 250 poles, thence down the creek, westwardly, for quantity, &c. The definite article has reference to no creek specified either in Patton's or Allen's entry, and can be supposed to refer to Barebone creek only because that is found to be crossed by his line of 250 poles along Patton's north and south line. The question then arises, is the call to run down the creek, on both sides, a call of general description or special location? Certainly, not the latter. Suppose, no other call to have been made than down the creek, where would you attach the entry? Why, to no creek or place whatsoever. And shall a call of general description, which cannot fix any entry, without a special call, govern or control such special call? We say not, and we believe it to be the invariable rule of decision in Kentucky. See Swearingen v. Smith, 1 Bibb 92; Black v. Botts, 1 Ibid. 96; Burk v. Todd, 1 Ibid. 64; Shannon v. Buford, 2 Ibid. 117, and numberless others. Where the entry calls to begin at the mouth, head or other point on a stream, and to embrace such stream, there, we admit such stream becomes locative, and no longer merely descriptive; but here, Allen made his entry and has but two locative calls: first, Patton's line, and to run south 250 poles. Had he stopped here, his entry, according to the case of Lancaster v. Pope, and the case of *Meriwether v. *188] Phillips, 5 Litt. 182, would have been void for uncertainty, because he did not state whether he would angle up or down, east or west. He bad Holmes v. Trout. fixed his base, and then says, he will run down the creek on both sides. Had he stopped, he might have been supposed to have made the call for the creek locative, but he could but perceive the probability of running north, south, east or west on such a stream, and to explain what he meant, and to gevorn his call for the creek, he added, "westwardly for quantity." The courts of Kentucky uniformly make calls for westwardly or southwardly, mean west or south. Bradford v. McClelland, Hughes 104; Craig v. Hawkins, 1 Bibb 33; Calk v. Stribling, Ibid. 122. In this entry, west gives right angles to the base line, and every call in the entry locative or descriptive, will be complied with. The land will lie between parallel lines, and embrace a rectangular form, and lie on both sides of the creek. We think, therefore, the court erred in not adopting the line I. B. as the base of Voss's entry, instead of the line I. A. Indeed, the experimental survey returned in the cause shows, that to make Barebone a locative call, would be to give Allen the most ludicrous figure imaginable-that from the course of the stream, it is impossible to hypothecate lines parallel to each other, which will embrace the stream. The court itself has abandoned its own decree, in giving directions how to lay down Allen's survey. As they have at last fixed it, the south boundary cuts the creek, and the creek runs from thence nearly south. Now, it is impossible to conceive, how the court can arbitrarily depart from both the creek and west point, and fix on the point 60° W., except that they found the call to embrace the creek in equal lines, impossible, and that the entry, pursuing the idea that the creek was to be in the centre, would exhibit and absurd figure with serpentine lines, to correspond to the serpentine windings of the stream. In attempting to do which, part of the survey would be west, and a part run south. Supposing it, then, to be a locative call, to run on both sides of the creek from the base of 250 poles, what did the uniform current of decisions in Kentucky declare should be done? Why, that the court should reject the absurd calls, impossible to be [*189 *complied with, and survey the entry as if they were not in it. See Bosworth v. Maxwell, Hardin 209; Pawling v. Meriwether's Heirs, Hughes 14; Consilla v. Briscoe, Ibid. 45; Kenton v. Mc Connell, Ibid. 162; Preeble v. Vanhoozer, 2 Bibb 121, &c. And that would be to run Allen 250 poles south, and at right angles west for quantity. Whether, therefore, we consider the call for "down the creek" as descriptive or locative, the result will be the same, and a plain practicable mode of surveying both Allen and Voss, presents itself to the mind of every one. These errors examined, another presents itself, which we hope will appear equally obvious. It is so much of the decree as gives a moiety, instead of the whole land covered by the complainant's survey and patent. The court have proceeded on the idea, that, to enable a party to maintain a bill in equity against an adverse title, the complainant should have a complete legal title. This has been repeatedly overruled by the appellate court of Kentucky. All they have required is, that the complainant shall have the entire title, either before suit, or before final decree. In numerous cases, the persons holding the equity have been allowed to sue, on an executory contract, their vendors and the adverse claimant. All the courts have required is, that the complainant shall show a clear equity to the thing, by grant, or bringing his trustee into court. In the old cases of Thompson Holmes v. Trout. and Blair, where the complainant showed no patent, the court of appeals allowed the inferior court to give time to complainant to obtain a grant, and decided, that if he did, to decree him the land, and if he did not obtain the patent, to dismiss his bill. As to a legal title, there can be but one, and defendants had that one. The commonwealth had granted the land to the grantors of the defendants, and the grant to Short conveyed no title whatever. It was, according to the opinion of this court, in the case of Elmendorf v. Taylor, 10 Wheat. 152, void, the commonwealth having previously granted all the title held to the first patentee. All the reason ever assigned in Kentucky for the production of the patent, was, that the complainant may thereby show he complied with the law, paid the fees, &c., that his *190] equity was permanently fixed to the thing, not *withdrawn, nor liable to be withdrawn, as is the case after survey and patent. The whole reasoning resolves itself into this, that the equitable claimant is he who ought to have the title held by another. Now, O'Mealy claims to be such; but the defendants allege the deed of Short to Breckenridge-not that it conveyed a legal title, for that was in themselves; but as evidence, the equitable title, as to a moiety, was not in complainants. To this complainants reply, Breckenridge's title is an inequitable one. He bought from us, but has failed to pay the consideration. Now, in such a case, what more could the defendants or the court require of complainants, than to show they held the entire equity as they alleged. This they could do in various ways: 1. By making Breckenridge's heirs parties. 2. By a separate suit (as they have done), get back the deed of the heirs of Breckenridge before trial. Equity considers that as done, which ought to have been done. The record clearly shows that John Breckenridge had no equitable claim to the land in contest, and that he or his heirs should have released it. Considering that as done which ought to have been done, how stands the case? The complainants, who allege themselves to be the entire owners of the equity growing out of Voss's entry, sue the defendants for the whole, and not a moiety, and on the trial, not only show that they were purchasers of the equity, from Short, and that Breckenridge was their mere agent, to be rewarded with part of the land, but also produce the release of Breckenridge's heirs. Suppose, Breckenridge's heirs had been made parties, and no release by them executed, until the final decree, surely, no doubt could exist, as to the complainants' claim to a decree against defendants. Can equity make a distinction between such a case, and the one before the court? Should the court, however, consider the complainants as only acquiring an equity, on the 25th day of May 1826, when the deed of release was executed to them by Breckenridge's heirs, then, according to no principle, can the complainants be barred by time. Those claiming under Hite and Daniel did not settle until 1808; Howard did not settle until 1804, and when Howard entered, the complainants resided out of the state. Of course, according to a well-settled principle of law, *the statute did not begin to *191] run, until they all came into this state. See 2 Digest of the Statutes of Kentucky 861; and Graves v. Graves, 2 Bibb 207. John Breckenridge is admitted to have died in 1806 or 1807, leaving his children all minors except one, and that a feme covert, and one of them, William Breckenridge, only three years old. As the seven years' act could not run against their Holmes v. Trout. equity, until all became of age, and William did not, until 1824; this time, by the direction of this act, must be deducted. See 2 Digest of the Statutes of Kentucky 806; May's Heirs v. Bennett, 4 Litt. 311; Kennedy's Heirs v. Duncan, Hardin 365. This act went into operation in 1816, and has no relation to the possession before John Breckenridge's death. As the complainants acquired the deed in 1826, and filed their amended bill in 1829, alleging that fact, the seven years' act must be thrown out of the question. Our suit for the whole land was depending, and the entire title set up, in the year 1815. Now, suppose the papers that relate to the controversy with Breckenridge, not to manifest the complainants' equity, prior to the decree in their favor. That decree was made in 1822, within eighteen years after Howard's entry on the land, and within fourteen years after the entry of Trout, under Daniel and Hite. As we alleged an entire equity, surely, all the court can require of us is, to show, before the twenty years had run, the evidency of that equity. The papers filed as exhibits were read without objection, as was the deposition of Moreton. The papers and letters show the original nature of our claim, and Moreton's deposition shows, that it was taken in the suit of complainants against Breckenridge's heirs, in the year 1816, and the decree is entered in 1822, settling the equity in the property to be in the complainants, and a release is produced before the hearing of the cause. It is, therefore, contended, that the honorable the circuit court erred: 1. In limiting the recovery to 8500 acres of land. 2. In the manner in which they directed Allen's entry to be surveyed. 3. In deciding that as to a moiety of complainants' equity, they were barred by the statute of limitation of twenty years. *Loughborough, for the apellees.-This is a case of conflicting [*192 land-claims. The bill of Holmes and others, filed November 23d, 1815, sets up title as follows, viz: Edward Voss's entry for 10,000 acres, October 11th, 1783. Survey of 8500 acres of said entry, February 16th, 1789. Assignment of certificate of survey to P. Short, and patent to him of March 16th, 1795. Conveyance by Short to Holmes, December 10th, 1796, alleged to be for the benefit of the other complainants. The bill alleges that the defendants are in possession of the land under illegal entries, surveys and patents, and prays that they may be compelled to surrender the land, and release their claims. The defendants, Daniel and Jeremiah Trout, Jacob Overpeck and William Buchannan, severally answer, and show title under a grant older than complainants' survey and patent, issued to Daniel and Hite for six hundred acres. The defendants, the Morelands, jointly answering, show title under a grant to Christopher Clarke for 450 acres, also older than the survey and patent upon which the complainants rely. The defendants also say, that although the boundaries of complainants' survey of 8500 acres as made, do include their possessions, yet that it was illegally made to include too much land; and that a survey made to begin at the beginning corner of Voss's entry, will give complainants the quantity of 8500 acres named in their patent, without interfering with the defendants. In May 1827, the complainants filed an amended bill, setting forth, that having engaged John Breckenridge to investigate their claims in Kentuck |