Elmendorf v. Taylor
APPEAL from the Circuit Court of Kentucky. This was a bill in equity, brought by the appellant, Elmendorf, in the Court below, to obtain a conveyance of lands held by the respondents under a prior grant, and under entries which were all older than his entry. But the defendants below relied entirely on their patent; and the case, consequently, depended on the validity of the plaintiff's entry. This entry was made on the 19th of April, 1784, as follows: 'Walker Daniel enters 8,000 acres, beginning at the most southwestwardly corner of Duncan Rose's survey of 8,000 acres, between Floyd's Fork and Bull Skin; thence along his westwardly line to the corner; thence, the same course with Granville Smith's lower line, to John Lewis' corner; thence with Lewis' line, and from the beginning south 78 west, till a line parallel with the first will include the quantity.' This entry was afterwards explained and amended on the 1st of July, 1784, so as to read as follows: 'Walker Daniel enters 8,000 acres, beginning at the most southwestwardly corner of Duncan Rose's survey of 8,000 acres, between Floyd's Fork and Bull Skin; thence along his westwardly line to the corner; thence the same course with James Kemp's line north 2° west, 964 poles, to a survey of John Lewis for 22,000 acres; thence with Lewis' line, and from the beginning south 7° west, till a line parallel with the first line will include the quantity.'
The plaintiff's bill was dismissed by the Court below, and the cause brought by appeal to this Court. It was argued, at a former term, by Mr. Clay, and Mr. Talbot, for the appellant, and by Mr. Bibb, for the respondents, and was again argued at the present term by the same counsel. Feb. 20th.
On the part of the appellant, it was contended, that the survey referred to in the amended entry, was, at the time, an object of sufficient notoriety to give validity to the entry, which called for one of its corners as a beginning. The Land Law of Virginia prescribes, that surveys shall be returned to the office, and recorded in a record book, to be kept for that purpose by the principal surveyor, within three months from the time of their being made. This survey had thus become a matter of record: and subsequent purchasers were bound to know its position, in the same manner as they are bound to know the position of entries. The book of surveys has every quality of a record, except that the surveyor is restrained from granting copies until the time limited by law, for the return of surveys to the land office, has expired; and the notoriety attached to the record of survey, does not entirely depend on the right to demand a copy of it. The right to inspect it still exists, and this right has been considered by the legislature as giving sufficient notice, to all persons interested, to enter a caveat against the issuing of a patent. Were the question of novel impression, there could be no doubt. But it had been settled by a long series of decisions in the local tribunal, and has become a settled rule of property, which this Court would respect, in the same manner as it always respected the interpretation of local statutes by the State Courts. [a]
On the part of the respondents, it was insisted, that the prohibition in the statute to give a copy of the survey, excludes the idea of that notoriety which is ascribed to a record. Though inserted for preservation in a book, which is termed a book of record, it does not become substantially a matter of record, until it becomes public and accessible to all the world. Even if an inspection of the book was demandable as a matter of right, such an inspection would, from the nature of things, be of no avail, unless an office copy could be obtained. The notoriety of the surveys referred to in the entry, would not, therefore, be inferred from the fact, that the three months, within which they were directed by the statute to be recorded, had expired before making the entry. It was, also, insisted, that the appellant's claim did not entitle him to maintain the bill in his own name, for the land in question. He was a tenant in common with others, and could not be allowed to sue in equity without making his co-tenants parties to the bill. [b] The length of time since which the plaintiff's title had accrued, was also insisted on as an equitable bar. More than twenty years had elapsed, and the principle was well settled, that a Court of equity would adopt the analogy of the statute of limitations, applied to bar an entry, or an ejectment, as the rule to be applied to equitable rights and remedies. [c] The statute of limitations is made to protect against ancient claims, whether well or ill founded, the evidences of which may have been lost, or obscured by time. [d]March 5th.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
^a The cases cited are enumerated in the opinion of the Court.
^b Hinde. Pract. 2. 16 Ves. 325. 6 Johns. Ch. Cas. 450. 3 Bro. Ch. Rep. 229. 2 Ves. sen. 312. 4 Johns. Ch. Rep. 199.
^c Francis' Max. X. p. 38. Smith v. Clay, 3 Bro. Ch. Rep. 639. note. Jenner v. Tracy, 3 P. Wms. note (B.) 2 Equ. Cas. Abr. tit. 'Length of Time.' Cook v. Arnham, 3 P. Wms. 283. Bond v. Hopkins, 1 Scho. & Lefr. 413. Hovenden v. Lord Annesley, 2 Scho. & Lefr. 607. 1 Vern. 196. 362. 1 Ch. Rep. 105. 3 Atk. 225. 2 Ves. sen. 226. 2 Atk. 83. Cholmondeley v. Clinton, 2 Jacobs & Walker, 138.
^d Clementson v. Williams, 8 Cranch's Rep. 72. Shipp v. Miller, 2 Wheat. Rep. 324.