Marine Insurance Company of Alexandria v. Young. 5 C. After the jury had retired to consider of their *verdict, [*188 ] they sent a written paper to the judges, requesting to be instructed by the court, whether the above answer of David Young would admit of any other reasonable or legal construction, than that the 13th of December, 1800, was the first information given by him to the plaintiff below of the storm of the 2d of November. But the court refused to give any opinion to the jury upon the construction of the answer of David Young, unless with the assent of both parties; and the counsel for the plaintiffs in error refused to assent, and took a bill of exceptions to the refusal of the court to instruct the jury, without the consent of both parties. The jury found a verdict for the defendant in error; and before judgment, the plaintiffs in error moved the court for a new trial, upon the ground that the verdict was contrary to evidence. The court refused to grant a new trial. C Lee and E. J. Lee, for the plaintiffs in error. Swann, for the defendant. CUSHING, J., delivered the opinion of the court, as fol- [* 190] lows: This court is of opinion that the inferior court *was not [*191 ] bound to give a construction of the answer of Captain David Young to the second interrogatory of the plaintiff below, as requested by the jury; and that it would be improper in this court to determine whether the inferior court ought or ought not to have granted the motion of the defendants below for a new trial, upon the ground that the verdict was contrary to the evidence. JOHNSON, J. "My object in expressing my opinion in this case, is to avoid having an ambiguous decision hereafter imputed to me, or an opinion which I would not wish to be understood to have given. "I decide against the appellant on the first point, because an examination of a witness, taken under commission, cannot possibly be considered written evidence, as the counsel have contended it is; nor is the meaning of a witness, words for the court to determine; but strictly within the province of the jury. "I decide against the appellant on the second ground, because I am of opinion that no appeal lies to this court from the decision of a circuit court on a motion for a new trial." The judgment below is to be affirmed, with costs. 5 H. 215; 7 H. 185. Bodley v. Taylor. 5 C. BODLEY and others v. TAYLOR. 5 C. 191. Though the land law of Kentucky furnishes a remedy for trying, at law, rights under entries, previous to the emanation of a patent, yet a court of equity has jurisdiction, upon the ground that an entry is notice, and a legal title afterwards acquired is subject to the equitable right. This jurisdiction is to be exerted, in conformity with the principles of equity, and not merely upon the rules which would govern a court of law. In Kentucky, if a natural object is called for, as about a certain distance from a fixed monument, and the object cannot be found, the call for it is rejected, and the distance mentioned taken as the precise distance. If an entry be placed on a road, at a certain distance from a given point, by which the road passes, the distance is to be computed by the meanders of the road, and not by a straight line, unless there is something to show another intent. If only the quantity and one line are described the location is to be made in a square. A call for the settlement and preëmption of J. before a location of the preëmption right of J. has been made, is substantially a call for the land of J. In Kentucky, an entry is sufficient if it has that reasonable certainty which would enable a subsequent locator, by the exercise of a due degree of judgment and diligence, to locate his own land on the adjacent residuum. If a subsequent locator has embraced in his patent, land included in a prior entry, he must convey the legal title thereof to such prior locator, without a conveyance from the latter, of lands held by him, not within his entry, but within that of the subsequent locator, but not surveyed as part thereof. ERROR to the district court of the United States for the District of Kentucky, in a suit in equity. The nature of the case and the material facts, appear in the opinion of the court. The cause was three times argued. At the February term, 1806, by Taylor and P. B. Key, for the respondent; and Hughes, for the complainants; and at the February term, 1807, by Hughes and H. Marshall, for the complainants, and H. Clay and P. B. Key, for the respondents; and at this term by Pope, for the complainants, and P. B. Key, for the respondent. [* 220 ] * February 27, 1807- MARSHALL, C. J. The court has been able to form an opinion as to a part only of this case. That the court as a court of chancery has jurisdiction of such cases, is a point established by a long course of practice in Virginia and Kentucky; but in the exercise of that jurisdiction, it will proceed according to the principles of equity. In such case, a prior [* 221] entry will be considered as notice to him *who has the legal title, if such entry be sufficiently certain. And the legal title will be considered, as holden for him who has the prior equity. Bodley v. Taylor. 5 C. March 14, 1809— MARSHALL, C. J., delivered the opinion of the court, as follows: This is an appeal from a decree of the court for the district of Kentucky, by which Taylor was directed to convey to Bodley and others a part of a tract of land to which he held an elder patent, but to which Bodley and others claim the better right under a junior patent. The judge of the district court having directed such part of the land held by Taylor to be conveyed to Bodley and others, as appeared by certain rules, which he has applied to the case, to be within their claim, and not within Taylor's location, and having dismissed their bill as to the residue, each party has appealed from his decree. Previous to. any discussion of the rights of the parties, it has be come necessary to dispose of a preliminary question. The defendant in the court below objects to the jurisdiction of a court of equity, and contends not only that the present case furnishes no ground of jurisdiction, upon general principles, but that the land law under which both titles originate, in giving a remedy by which rights under entries might be decided previous to the emanation of a patent, has prohibited an examination of the same question after a patent shall have issued. Had this been a case of the first impression, some contrariety of opinion would perhaps have existed on this point. But it has been sufficiently shown that the practice of resorting to a court of chancery in order to set up an equitable against the legal title, receiv ed, in its origin, the sanction of the court of * appeals, while [* 222 ] Kentucky remained a part of Virginia, and has been so confirmed by an uninterrupted series of decisions as to be incorporated into their system, and to be taken into view in the consideration of every title to lands in that country. Such a principle cannot now be shaken. But it is an inquiry of vast importance whether, in deciding claims of this description, a court of equity acts upon its known, established and general principles, or is merely substituted for a court of law, with power to decide questions respecting rights under the statute, as they existed previous to the consummation of those rights by patent. It has been argued that the right acquired by an entry is a legal right, because it is given by a statute; that it is the statutory inception of a legal title which gives to the person making it a right, against every person not having a prior entry, to obtain a patent and to hold the land. The inference drawn from this is, that as the law affords no remedy against a person who has defeated this right by improperly obtaining a prior patent, a court of chancery, which can 20 VOL. II. Bodley v. Taylor. 5 C. afford it, ought to consider itself as sitting in the character of a court of law, and ought to decide those questions as a court of law would decide them, if capable of looking beyond the patent. This reasoning would perhaps be conclusive if a court of chancery was, by statute, substituted in the place of a court of law, with an express grant of jurisdiction in the case. But the jurisdiction exercised by a court of chancery is not granted by statute; it is assumed by itself: and what can justify that assumption but the opinion that cases of this description come within the sphere of its general action? In all cases in which a court of equity takes jurisdiction, it will exercise that jurisdiction upon its own principles. It is believed that no exception to this rule is to be found in the books, and the state of The land titles in Kentucky is not believed to furnish one. [* 223] true ground of the jurisdiction of a court of equity is, that an entry is considered as a record of which a subsequent locator may have notice, and therefore must be presumed to have it; consequently, although he may obtain the first patent, he is liable, in equity, to the rules which apply to a subsequent purchaser with notice of a prior equitable right. This certainly brings the validity of the entries before the court, but it also brings with that question every other which defeats the equity of the plaintiff. The court, therefore, will entertain jurisdiction of the cause, but will exercise that jurisdiction in conformity with the settled principles of a court of chancery. It will afford a remedy which a court of law cannot afford, but since that remedy is not given by statute, it will be applied by this court as the principles of equity require its application. Neither is the compact between Virginia and Kentucky considered as affecting this case. If the same measure of justice be meted to the citizens of each State, if laws be neither made nor expounded for the purpose of depriving those who are protected by that compact of their rights, no violation of that compact is perceived. The court will proceed, then, to inquire into the rights of the parties, and, in making this inquiry, will pay great respect to all those principles which appear to be well established in the State in which the lands in controversy lie. Taylor holding the eldest patent, it is necessary that the complainants below should found their title on a good entry. The validity of their entry, therefore, is the first subject of examination. It was made on the 17th of October, 1783, and is in these words: "Henry Crutcher and John Tibbs enter 10,000 acres of land on a treasury warrant, beginning at a large black ash and small buck Bodley v. Taylor. 5 C. road [224 ] eye marked thus, I. T., on the side of a buffalo The only objection to this entry is, that the beginning is uncertain. Were the validity of this objection to be admitted, it would shake almost every title in Kentucky. If it be recollected that almost every acre of good land in that State was located at a time when only a few individuals, collected in scattered forts or villages, encroached on the rights of the savages and wild beasts of the country; that neither these sparse settlers, nor those hardy adventurers who travelled thither in quest of lands, could venture out to explore the country, without exposing their lives to imminent hazard; that many of those who had thus explored the country, and who made locations, were unlettered men, not only incapable of expounding the laws, but some of them incapable of reading; it is not wonderful that the courts of Kentucky should have relaxed, in some degree, the rigor of the rule requiring an impracticable precision in making entries, should have laid hold of every circumstance which might afford that certainty which the law has required, and should be content with that reasonable certainty which would enable a subsequent locator, by the exercise of a due degree of judgment and diligence, to locate his own lands on the adjacent residuum. The entry of Crutcher and Tibbs possesses this reasonable certainty. The Blue Licks was a place of general notoriety, and there appears to have been no difficulty in ascertaining the point from which the mensuration should commence. There being only one of the three roads leading from that point, which ran nearly a N. E. course, no subsequent locator could doubt on which road this land was placed. The entry having called for visible objects on the road about seven miles from the Licks, those visible ob- [*225 ] jects might be discovered without any extraordinary exertion; and if they could not be discovered, then that call, according to the course of decisions in Kentucky, would be discarded, and about seven miles would be considered as seven miles. But those objects remained, and it appears that no difficulty has arisen, or ought to arise, on this point. The jury have found it to be the beginning called for in the entry. The entry, therefore, of Crutcher and Tibbs is sufficiently certain and the court will proceed to examine the entry and survey of Taylor. This entry being the last link of a chain commencing with Jacob Johnson, it is necessary to fix Jacob Johnson, in order to ascertain the position of Taylor. Jacob Johnson's title is a settlement and preëmption; a certificate |