Holmes v. Trout.

ticable to include the mouth of this creek in the survey, it is insisted by the complainants' counsel, that this survey of the entry is incorrectly made; and that the court should have directed it to be made, by running at right angles from the base line for quantity.

In support of this position, several authorities have been cited. In the case of Preeble v. Vanhoozer, 2 Bibb 120, the court says, "that the call to run eastwardly is an indefinite expression, signifying on which side of the base line the land is to lie; and that a rectangular figure is not to be departed from, unless the calls of the entry are incompatible with that figure." But in the same case, the entry called to include an improvement, and the court decided, that the length of the given base and the call to include the improvement being incompatible, the former must yield, so far as necessary, to comply with the latter. In Hardin 208, the construction of an entry is given by the court of appeals of Kentucky. They say, that in the construction of entries, it is difficult to lay down general rules that will not necessarily admit of many exceptions. Each case must frequently depend upon its own peculiar circumstances; but it is evident, that every entry itself must be resorted to, for discovering the locator's intention, in construing which, the whole entry, like other writings, should be taken together. "But if, from a fair and reasonable exposition of the entry, a call appears to have been made through mistake, and is repugnant to the locator's intention, it ought to be rejected, the court say, as surplusage ; and not suffered to vitiate the whole entry. Therefore, they say, the object called for should not be so repugnant, as to be incapable of misleading a subsequent inquirer with ordinary caution." "It should be practicable to comply with the call; and, in general, it should be a tangible object, either natural or artificial, not a mere ideal one." The court also say, that a certain line should be run south-west, "not only because they conceive the locator's intention sufficiently manifest, but because they esteem it a *good rule, that the lines of every survey should be as nearly parallel

to each other, and as nearly at right angles, as the calls of the entry [*218

will admit; and when not controlled by such calls as evidently show the locator's intention to be otherwise, the court will give its calls this construction, as being the most reasonable, and the least subject to exception." These views contain the general principles which have been established in Kentucky, and by which entries in that state must be governed.

It will be observed, that in giving a construction to an entry, the intention of the locator is to be chiefly regarded, the same as the intention of the parties in giving a construction to a contract. If a call be impracticable, it is rejected as surplusage, on the ground, that it was made through mistake; but if a call be made for a natural or artificial object, it shall always contro mere course and distance. Where there is no object called for, to contro a rectangular figure, that form shall be given to the survey. These principles must now be applied to the call for the creek in Allen's entry.

It is objected, that this creek is not called by any particular name, and the reason no doubt was, that, at the time, Allen's entry was made, no name had been given to it. Nor was any name given to the creek on which Patton's entry was made. Subsequently to that entry, it was called Patton's creek, from the fact of his entry having been made on its bank. Barebone creek seems to be a stream of some magnitude; and it does not appear that

Holmes v. Trout.

there is any other creek which answers the call in Allen's entry. This creek is a natural object, and is crossed by the base line of the entry; and could any one doubt the intention of the locator, under such circumstances, to include the land on both sides of the creek, by his call "to run down the creek on both sides, westwardly, for quantity? It is true, the mouth of this creek is not included in the survey which was directed by the circuit court, but the mouth of the creek is not called for specifically; and it does not appear, but that if the exact quantity of land called for in the entry had been surveyed, that the creek would have passed through the whole length of the tract. The call is not to run *to the Ohio river, but "down *219] the creek, on both sides, for quantity."

It would be difficult to make a call more specific than this, or one which would be less likely to mislead any subsequent locator. Is the fact that the creek, by an unusual deviation from its general course, near its junction with the Ohio, passes out of the boundaries designated, calculated to mislead any one? Suppose, it passed out of the limits of the survey, five or ten poles before the lines closed; would this, by the principles laid down, require the call to be rejected? Could that fact lead any one into error? And unless such a deviation would require the court to reject the call, it cannot be rejected, on the ground alleged. The creek, by the survey executed, runs through the tract, about seven-eighths of the entire length of the line, and the extraordinary bend which carries it out of the survey, cannot vitiate the call nor render it substantially repugnant.

The question which aries out of these facts is, whether this call shall not control the survey, so as substantially to conform to it. The call to run westwardly, having nothing else to control it, would, according to the established rule of construction, require the lines to be run at right angles from the base. But the court are clearly of opinion, that the call to run down the creek, on both sides, for quantity, must control the survey; and that the construction given to the entry by the circuit court was correct.

This line of Allen's entry being established, it forms the lower boundary of Voss's survey; and it remains only to say, that, agreeable to the calls of his entry, the survey must be extended up the river and along Roberts's line, so as to include 8500 acres. The survey cannot be extended beyond this limit, so as to interfere with valid entries which were made before the original survey of Voss. This was the construction given to the rights of the complainants under their entry and survey, and this court sustain that construction. The decree of the circuit court must be affirmed, with costs.

Decree affirmed.

138

*WILLIAM YEATON and others, Appellants, v. DAVID LENOX

and others.
Practice.

A decree was pronounced by the district court of the United States for the district of Alexandria, in December 1829, from which the defendants appealed, but did not bring up the record; at January term 1832, the appellees, in pursuance of the rule of court, brought up the record and filed it; and on motion of their counsel, the appeal was dismissed. On the 9th of March 1832, a citation was signed by the chief justice of the court for the district of Columbia, citing the plaintiffs in the original action to appear before the supreme court, then in session, and show cause why the decree of the circuit court should not be corrected; a copy of the record was returned with the citation, "executed," and filed with the clerk. The record is brought up irregularly, and the case must be dismissed.

The act of March 1803, which gives the appeal from decrees in chancery, subjects it to the rules and regulations which govern writs of error; under this act, it has been always held, that an appeal may be prayed in court, when the decree is pronounced; but if the appeal be prayed, after the court has risen, the party must proceed in the same manner as had been previously directed in writs of error.

1

The judiciary act directs, that a writ of error must be allowed by a judge, and that a citation shall be returned with the record; the adverse party to have at least twenty days' notice; this notice, the court understands, is twenty days before the return-day of the writ.

APPEAL from the Circuit Court of the district of Columbia, and county of Alexandria.

Coxe, for the appellees, moved to dismiss this appeal; an appeal in the same having been dismissed at January term 1832, and this appeal not having been taken and filed, according to the provisions of the judiciary act and the rules of this court.

Neale, contrà, cited the following cases, Reily v. Lamar, 2 Cranch 344; Wood v. Lide, 4 Ibid. 180; The San Pedro, 2 Wheat. 132; Johnson v. Johnson's Administrators, 2 Munf. 304.

MARSHALL, Ch. J., delivered the opinion of the court.-*In this case, a decree was pronounced by the court of the United States for [*221 the county of Alexandria, in December 1829, from which the defendants in that court appealed, but did not bring up the record. At January term 1832, the appellees, in pursuance of a rule of this court, brought in the record, filed it, and moved that the suit should be dismissed. The court ordered a dismissal. On the 9th day of March 1832, a citation was signed by the chief justice of the court for the district of Columbia, citing the plaintiffs in the original action to appear before the supreme court, then in session, and show cause why the decree of the circuit court should not be corrected. A copy of the record was returned with this citation "executed," and filed with the clerk. The appellees move to dismiss the suit, because the record has been irregularly brought up.

The act of March 1803, which gives the appeal from decrees in chancery, subjects it to the rules and regulations which govern writs of error. Under this act, it has been always held, that a decree may be prayed in court, when the decree is pronounced; but if the appeal be prayed, after the court has risen, the party must proceed in the same manner as had been previously directed in writs of error. The judiciary act directs, that a writ of error must be allowed by a judge, and that a citation shall be returned with the

Sampeyreac v. United States.

record; the adverse party having at least twenty days' notice. This notice, we understand, is twenty days before the return-day of the writ of error. In this case, the appeal is not allowed by the judge, and the citation is to appear before the court then sitting. The record is brought up irregularly, and the cause must be dismissed.

ON consideration of the rule granted in this cause, and of the arguments of counsel, as well for the appellants as for the appellees, thereupon had, after mature deliberation, it is the opinion of this court, that the record is brought up irregularly, and that this appeal should be dismissed: whereupon, it is ordered and decreed by this court, that the appeal be and the same is hereby dismissed, with costs.1

*222] *BERNARDO SAMPEYREAC and JOSEPH STEWART, Appellants, v. UNITED STATES, Appellees.

Fraudulent land-claims.

Construction of the act of congress, passed the 5th of May 1880, entitled "an act for the further extending the powers of the judges of the superior court of the territory of Arkansas, under the act of the 26th May 1824, and for other purposes.”

Under the provisions of an act of congress, passed on the 26th May 1824, proceedings were instituted in the superior court of the territory of Arkansas, by which a confirmation was claimed of a grant of land alleged to have been made to the petitioner, Sampeyreac, by the Spanish government, prior to the session of Louisiana to the United States, by the treaty of April 3d, 1803; this claim was opposed by the district-attorney of the United States; and the court, after hearing evidence, decreed that the petitioner recover the land from the United States. Afterwards, the district-attorney of the United States, proceeding on the authority of the act of 8th May 1830, filed a bill of review, founded on the allegation that the original decree was obtained by fraud and surprise, that the documents produced in support of the claim of Sampeyreac were forged, and that the witnesses who had been examined to sustain the same were perjured; at a subsequent term, Stewart was allowed to become a defendant to the bill of review, and filed an answer, in which the fraud and forgery are denied, and in which he asserted, that if the same were committed, he was ignorant thereof, and alleged that he was a bond fide purchaser of the land for a valuable consideration, from one John J. Bowie, who conveyed to him the claim of Sampeyreac by deed, dated about the 22d October 1828. On a final hearing, the court, being satisfied of the forgery, perjury and fraud, reversed the original decree: Held, that these proceedings were legal, and were authorized by the act of the 5th of May 1830.

Almost every law providing a new remedy, affects and operates upon causes of action existing at the time the law is passed; the act of 1830 is in no respect the exercise of judicial powers; it only organizes a tribunal with the power to entertain judicial proceedings; the act, in terms, applies to bills filed, or to be filed; such retrospective effect is no unusual course, in laws providing new remedies.

The act of 1830 does not require that all the technical rules, in the ordinary course of chancery proceedings, on a bill of review, shall be pursued in proceedings instituted under the law.

In the case of Polk's Lessee v. Wendell, 5 Wheat. 308, it is said by this court, that, on general principles, it is incontestable, that a grantee can convey no more than he possesses; hence those, who come in under a void grant, can acquire nothing. United States v. Sampeyreac, Hempst. 118, affirmed.

*223]

*APPEAL from the Supreme Court of Arkansas. The appellant, Sampeyreac, under the act of congress of the 26th of May 1824, entitled "an act enabling the claimants to lands within the limits of the state of

For a decision upon the merits, on a further appeal, see 8 Pet. 123.

Sampeyreac v. United States.

Missouri, and territory of Arkansas, to institute proceedings to try the validity of their claims," exhibited the bill against the United States, which was filed in the clerk's office of the superior court in the territory of Arkansas, in chancery sitting, on the 21st day of November 1827, stating that, being an inhabitant of Louisiana, he did, on the 6th day of October 1789, address a letter to the governor of the then Spanish province of Louisiana, asking for ten arpens of land in front, with the usual depth, on Strawberry river, within the district of Arkansas, to be granted to him in full property; and that the said governor did, on the 11th day of October 1789, make an order of survey upon said petition, which the appellant alleged, was such a claim as might have been perfected into a complete title, under and in conformity to the laws, usages and customs of the government of Spain, under which the same originated, had not the sovereignty of the country been transferred to the United States; and was, therefore, provided for by the treaty between the United States and the French republic, made the 30th April 1803. The bill prayed that this claim might be confirmed, according to the provisions of the act of congress before mentioned.

Upon this petition, the clerk of the court issued a subpoena against the district-attorney of the United States, which was executed on the 24th of November 1827. To this bill, the district-attorney of the United States filed an answer, at the December term of said court 1827, denying, generally, the facts and allegations in said bill, and alleging that Sampeyreac was a fictitious person, or was a foreigner, and then dead. On the 19th day of December 1827, the district-attorney of the United States moved to postpone the final adjudication of the case until the following term, for the following reasons: 1. The petition and subpoena in this case were served on the United States, within one month of the present term of this court, but more than fifteen days allowed by law; and in consequence of this short notice, the United States attorney has not answered this bill until the present term. 2. *Has not had a sufficient length of time to take counter-depositions,

if counter-evidence does exist. 3. There are many more cases pending [*224

in this court on the same principles, and similarly situated in all respects; and the attorney for the United States asks this continuance, for the purpose of procuring such evidence as may exist on the part of the government.

The court proceeded to hear the cause; and upon the deposition of one John Heberard, entered, on that day, a decree against the United States, in favor of said Sampeyreac, for four hundred arpens of land.

On the 14th day of February 1828, a deed, purporting to be a deed executed by Sampeyreac, transferring his claim to the clerk's certificate of the existence of this decree, and of all his right, title and interest in said decree, to John J. Bowie, was proved, and admitted to record on the 22d day of October 1828, in the office of the circuit court of Hempstead county, in the territory of Arkansas, and which title was transferred by Bowie to Joseph Stewart, in December 1828; by virtue of which transfer, the said Stewart filed with the register of the land-office at Little Rock, an application for the N. E. 17, 11 S, 26 W; and E., S. E. 17, 11 S, 26 W; and W. N. E. 13, 11 S. 27 W. which application was admitted by the register, on the 13th of December 1828.

At the April term 1830 of the court, the United States attorney, upon leave granted, filed a bill charging that the decree entered by the court, at