author: Judge Burnet:

text:
    Thomas J. McArthur v. Henry Nevill and others.
    This was a bill in chancery by a junior patentee against one in possession, under an elder patent, to obtain title and possession of certain lands in Pickaway county. The case' involved many important questions connected with the construction of a series of entries. It was adjourned here for decision from the county of Pickaway, and very elaborately argued by Leonard, for the complainant, and Scott, Grimke, and Murphy, for the defendants. As the case is fully stated in the opinion of the court by Judge Bur-net, and the points decided clearly explained, no abstract of the arguments is given. It was found difficult to compress them within the space usually allotted to arguments.
   ^Opinion of the court, by

Judge Burnet:

The pleadings and exhibits present a number of questions which have been argued by counsel at considerable length, but which the court have not thought it necessary either to consider or decide. Our attention has been directed to two questions only, which seem to embrace the merits of the case.

1. The effect of the several surveys made at different times on the entry in the name of Tench, assignee.

2. The true construction of Bose’s entry, No. 441, on which all the subsequent entries, including those in dispute, connected with it on the river above, must necessarily depend.

These questions are to be decided on the following facts: In August, 1787, one Lawson made an entry, No. 439, on the Scioto river, beginning at a point on the bank, eight miles above the mouth of Paint creek. On the same day, Blair made an entry, No. 440, of one thousand acres, beginning at Lawson’s upper corner on the river, running up the river four hundred poles, when reduced to a straight line; thence at right angles from the general course of the river, and with Lawson’s line, for quantity. Bose made an entry, No. 441, of one thousand acres, on the Scioto river, beginning at the upper corner of A. Blair’s entry, No. 440, on the bank of the river, running up the river four hundred poles, when reduced to a straight line ; then at right angles from the general course of the river, and with Blair’s lino for quantity.

Caines then entered one thousand acres, beginning at the upper corner of Bose.

White entered two thousand acres, beginning at the upper corner of Caines.

Coleman entered one thousand acres, beginning at the upper corner of White.

Jordan entered one thousand acres, beginning at the upper corner of Coleman.

Galt, under whom the defendants claim, entered one thousand acres on the Scioto river, beginning at the upper corner of Jordan’s entry, No. 449, on the bank of the river, running up the river four hundred poles, when reduced to a straight Nine; thence at right angles to the general course of the river, and with Jordan’s line for quantity.

Biddle then entered one thousand acres, beginning at the upper corner of Galt.

John Tench, assignee, under whom the complainant claims, then entered twelve hundred acres, part of military warrant, 2,377, on the Scioto, beginning at tbe uppor corner of C. Biddle’s entry, No. 452, running up the river five hundred poles, when reduced to a straight line ; thence from the general course of the river at right angles, and with Biddle’s line for quantity.

These entries were all surveyed in 1793, by a deputy regularly appointed, and most of them have been settled and improved many years.

In 18Ü7, eight hundred acres ofthe entry in the name ofTench,assignee, were withdrawn and located, and surveyed on other lands.

In 1809, four hundred acres, residue of the above entry of Tench, assignee, were again surveyed by D. McArthur, an authorized deputy, in such form that the length oí the survey was five hundred and twenty-six poles and its breadth one hundred and twenty-four poles.

In 1823, the same four hundred acres were again surveyed by D. McArthur, in two separate surveys, so as to include a part of the survey of Biddle and a part of the survey oí G-alt, which now belongs to the defendants.

From a correct diagram of Blair’s entry, 440, it appears that he has three corners on the Shioto river, one at each extremity of his base, and one where his back line'intersects the river.

Rose surveyed from the uppermost or third corner on the river, and all the subsequent entries, including that of the complainants, have been surveyed in conformity with it.

The complainant now contends that the beginning cornet of Rose is the Becond corner of Blair on the river, at the upper extremity of his base.

The county surveyor has reported that the entry of Rose can not be laid down or surveyed from that corner as a beginning.

The entry in the name of Tench was made on a military warrant granted to Dr..Trezvant, who, it is said, never assigned to Tench, or authorized an entry in his name.

*The complainant claims by assignment from Wallace and Woodbridge, who claimed as assignees of Trezvant, and deny the right of Tench.

Without stopping to examine the validity of the assignments on either side, I shall take it for granted they are regular, and that the complainant has acquired a valid right to the entry in the name of Tench, assignee.

1. The first inquiry then is, what is the effect of the different surveys that have been made on the entry in the name of Tench, assignee?

The complainant alleges that Tench, having made the entry in his own name without authority, must be considered as a trustee for him. He therefore affirms the entry and claims the benefit of it, but contends that the first and second surveys were made without authority, and that the only authorized survey is the one made by his direction in 1823. It is difficult to account for the fact that this entry was permitted by the principal surveyor without evidence of an assignment. But taking it for granted that the entry was obtained by the practice of a fraud on the officer, or in consequence of his negligence and inattention; yet, as the complainant has sanctioned it after it was surveyed and recorded in the name and as the property of Tench, it would seem that he has recognized the power by which both the entry and the survey were made.

In addition to this, it is in proof that the surveys of 1793 and 1809 wore made by regular and authorized deputies; it is, therefore, to be presumed that they were made legally and on proper authority. The officers were acting under the obligation of an oath, and on their personal and official responsibility. In the absence of all proof, therefore, we are to take it for granted that the person having the control of the warrant directed the survey, and that it was executed in conformity with such direction.

The objection to these surveys seems to rest on the supposition that Tench ordered them. But there is no evidence of that fact. If Tench had not the control of the location, as is contended, the survey may have beon directed by Trezvant, or some other person who had an interest in the land, or a power to manage it. On any other supposition it would bo impossible to sustain half the surveys that have been *made in the district; and when it is remembered that the fiiot survey was made many years before the existence of the complainant’s right, and before the alleged assignment by Trezvant to Wallace, we can readily understand why it is that this complainant has no knowledge of the transaction. His want of information, however, does not change its character. Trezvant has never disavowed it, nor is there any proof that it was made without his authority. Wallace certainly knew the situation of the location before ho purchased, and that he was bound by all the steps that had been legally taken toward the completion of the title, and yet he has shown no disavowal either by Trezvant or Tench. The inference from this fact, in connection with the credit which must be given to the official acts of a sworn deputy, is irresistible. As the case is presented, I can not discover any difference between the validity of the entry and that of the survey. They rest on the same ground, depend on the same evidence, and must stand or fall together. If the absence of testimony be sufficient to condemn the survey, the entry must share the same fate, for they must be presumed to have been made by the same person, or at least under the same authority. The distinction between them, which counsel have endeavored to make, does not appear to me to have any foundation to support it. The whole process of consummating a-title, from the emanation of the warrant to the granting of the patent, is one transaction, though consisting of different parts; and the assignee of a warrant takes it in the state of progress toward a complete title in which it is found at the time of his purchase, but with the same right of the original holder to disavow any step that may have been taken illegally or without authority. Such illegality, or want of authority, however, is not to be presumed, nor is it to be admitted on the bare assertion of the assignee, who must have been a stranger to the transaction at the time it took place. The law presumes that to be legally done, which is done by an officer vested with competent authority, and on the supposition that the first survey was made by such an officer, the assignee is bound by it, though by a fair construction of the entry it might have justified a different survey. This survey of 1793-does not conflict with the survey of the defendants, wThieb includes *the land now in dispute, and being the survey by which tho complainant is bound, he can not take anything by his patent which is founded on the survey of 1823.

2. The second question is, what is the correct construction of Hose’s entry, No. 341, on which the position of Tench’s entry must depend ?

Rose calls for the upper corner of Blair’s entry, on the river, as his beginning. It is necessary, therefore, to ascertain that corner.

The complainant contends, that it must be the upper corner of Blair’s base line; but according to my apprehension, it is the upper corner of his entry without reference to any particular line. In most cases, whore both ends of a base line terminate at points on a watercourse, and the call is to look back for quantity, the upper corner on the base will be the upper corner of the entry, on the river; but it may happen, that by a sudden bend in the course of' the stream, the third corner of the entry is the upper corner on the river. The base line alone does not constitute an entry. It must be taken in connection with the other calls. An entry is neither more nor less 'than a location, and when we speak of an entry we mean a tract of land, with defined though unsurveyed boundaries, that must necessarily have more than two corners.The calls of Blair’s entry places two of his corners on the river, with certainty, but it necessarily includes two other corners, which may or may not be on the river. A valid entry must be certain and precise, and must contain the means of ascertaining its boundaries in order that others may locate the adjoining land with safety. , This entry is admitted to be good. It must, therefore, contain the means of ascertaining all its corners with certainty. This being the case, it is a natural conclusion that Rose, in making his entry, ascertained the situation of Blair’s entry, without which he must have located at random, and might have called for the same land which Blair had previously entered. In ascertaining the situationmf that entry, he certainly knew that no part of it could lie, or be 'intended to lie, on the east side of the river; and that although the second line, as called for, might cross the river, yet the entry could not include land, or have a boundary or a corner on the east side; but the river would become its boundary, from *the point where the line should cross, and, consequently, that its uppermost corner, on the river, would be the point where that line or the next called for should cross for the last time. A protraction of this entry shows that the second line crosses the river and terminates out of the military district, and that the third line recrosses and continues a considerable distance within the district before it terminates. On examining this diagram, if the question be asked, what is the real entry or location of Blair, the answer must be : so much of the land within its lines as is on the west side of the river; or, in other words, the land bounded by the river, from the beginning to the termination of the base, and from the termination of the base to the point whore the back line intersects the river, and by that lino and the line called for in Lawson’s entry. The boundaries of the location being ascertained, another question arises. How many corners has it, and where are they situated ? The eye discovers at once that it has four corners: one at the commencement, and one at the termination of the base; one at the point where the back line intersects the river, and one at the point where that line intersects the line of Lawson. If this exposition be correct, the upper, by which I understand the uppermost corner of Blair’s entry on the river, is his third corner, and is found at the point where his back line intersects the river. Assuming that corner as the beginning of Rose, it will be found that Tench’s entry does not interfere with Galt, and that the survey, by which Tench now claims, does not include any part of the land now covered by his entry.

In construing entries, the intention of the locator should not be disregarded when it can be ascertained. Although it may be in-artificially expressed, it should be made the rule' of construction as far as possible. The evident intention of Rose was to begin on the river, at the point where the boundary of Blair should leave it for the last time. On this supposition he has appropriated the vacant lands contiguous to Blair; but on the complainant’s construction, he has attempted to appropriate the land covered by him. As the complainant has surveyed for him, at least nine hundred and fifty of his thousand acres are within the lines of Blair; and this result must have been evident to the eye of the ^locator when he made his entry. From the termination of Blair’s base the Scioto changes its course. Its bed then became about parallel with his second line, so that a person on the ground would naturally conclude that the third corner of Blair would be on the river, and he would perceive, at once, that by calling for the termination of his base line for a beginning, and thence up the river for the base of his own entry, he would unavoidably cover the principal part, if not the whole of that.entry, instead of making it a boundary as he intended. Here, then, we have the reason why the county surveyor could not lay down, or survey the entry of Rose from Blair’s second corner. It was because Rose’s base would be precisely the second line of Blair, and he would run back for quantity directly through Blair’s entry and include almost the whole o it. In addition to this, it should be remembered that the whole chain of entries, from Lawson to Tench, which seem to have been made on the same day, have been surveyed about thirty years; that they have been occupied and- improved fifteen or twenty years, and some of them more; that Rose’s survey cornmenced at tbe third corner of Blair; and that the whole chain of subsequent entries, including Tench’s, were surveyed in conformity with it. These facts show, not only the intention of Rose, but the construction which has been put upon his entry as to its beginning corner by all the locators above him. Tench’s location, claimed by the complainant, stood on a survey made by an authorized deputy, in conformity with the construction now given, from 1793 till 1823, when the complainant ordered a new survey, by which Tench’s location is moved down the river about eight hundred poles, and made to interfere with the surveys of Biddle and Galt, as they were executed in 1793. If this construction prevails the whole chaim of surveys must be removed from the ground on which they were made, and the occupants must lose their improvements, notwithstanding the construction given by Rose to his entry is in conformity with the established rules, consistent with its own terms, and in accordance with the common understanding of those whose locations are connected with it.

If it was the intention of Rose to call for the entry of Blair as a boundary, without interfering with it, his object *eould not be attained in any other way than by taking his uppermost or third corner on the river as a beginning.

In Evans v. Manson, 1 Bibb, 5, the court say, that a locator, calling to join a claim, shall not be intended to interfere with it. In Lipscum v. Grubbs, 3 Bibb, 400, the same rule is given. The court there, rejected a call to run north, because it produced a repugnance by making the entry interfere with a location called for. They decided that the locator meant to say south, but, by mistake, said north; that the idea could not be entertained that he intended to lose four hundred acres by including the claim he had called for, and which he had thereby admitted to be superior to his own; that the whole entry should be taken together, to ascertain the most probable, fair;, and rational meaning of the locator, and that subsequent locators, from a just construction of the entry, might understand the mistake. Now, in the case before us, by assuming the corner, on Blair’s base line, as a beginning, Rose not only interferes with the entry which he calls for as a boundary, but includes at least nine hundred and fifty acres of it, and will not cover more than forty or fifty acres of vacant land, when he intended to locate one thousand acres; but according to the construction by which he has surveyed, he saves his call for Blair as a boundary, prevents all interference, and obtains his quantity of land. No person can mistake his meaning for a moment. The locator next above him clearly understood it, and surveyed his entry accordingly, and those adjoining, for an indefinite extent, have understood and surveyed in the same way. The complainant himself, or those under whom ho holds, have also surveyed on the same principle, and acquiesced in it for nineteen years.

.From the loose manner in which entries have been made in this district, as well as in Kentucky, great latitude has been taken to make the language used, conform to the intention of the locator. In the case of Massie v. Watts, 6 Cranch, 857, the Supreme Court admit the necessity of establishing rules, to save locations that would otherwise be defective for want of that degree of certainty which is required for the safety of subsequent locators, and they decided the case on the principle that they were bound to support the entry, if, by any reasonable construction, it could *be supported. In speaking of the possible result of Massie’s construction, the chief justice says : “ Powell’s back line would probably terminate on the river, in which event that would be his upper corner on the Scioto, which is called for as the beginning of O’Neal’s entry.” Now, the diagram of Blair’s entry and survey returned by the county surveyor, shows that his back line does terminate on the Scioto, above his base, consequently that must be his upper corner on the river, which is called for by Rose.

From this view of the case, it follows that whether the complainant was bound by the survey of 1793 or not, a proper construction of the entries, on which his own depends, will place his location entirely above the limits of G-alt’s survey, as it is now claimed by the defendants. The bill, therefore, must be dismissed.


source: Caselaw Access Project

author: Judge Sherman: Judge Burnet :

license: Public Domain

text:
    Lessee of T. C. Allen v. Orris Parish.
    Lands mortgaged since Jane, 1805, must be sold upon execution, in manner prescribed by execution law at the time of the sale.
    Where lands sold upon execution are not valued, and the objection was not made at the return of the execution, the purchaser, if a stranger, is not affected.

      This cause, came before the court upon a motion for a new trial, made by the plaintiff in an action of ejectment, and was adjourned from Eranklin county.
    The plaintiff claimed title as heir at law, under his father, G-. W. Allen, who deduced title from John Allen. The defendant, to protect his possession, gave in evidence a deed of mortgage from the executor of Gr. W. Allen to John Langdon, dated September 18, 1805, and offered also in evidence certain judicial proceedings had in the county of Franklin, where the lands lie, upon the mortgage, under which the lands were sold by the sheriff on execution, and conveyed to Line Starling. He also offered in evidence a deed of quitclaim from Langdon, the mortgagee, to Line Starling, dated since the commencement of this suit. The plaintiff’s counsel objected to the evidence of sheriff’s sale, because the defendant did not show that the lands were valued by appraisers according to law, as adjudged to be necessary in the case of Patrick v. Ousterout, 1 Ohio, and he objected to the deed from Langdon, upon'the ground, that a judgment having *been rendered against Allen on the mortgage, the estate of Langdon was at an end, and the judgment and legal process under it, to soli the land, the mortgagee’s proper remedy. But the court received all the evidence objected to. The motion for a new trial was grounded upon the alleged error in admitting this evidence.
    Hammond and Wilcox, for plaintiff.
    Baldwin and Ewing, for defendant.
   Opinion of the court, by

Judge Sherman:

This case depends upon the title of the defendants to the premises in controversy, and that title upon the sufficiency of certain proceedings had upon a mortgage from G-. W. Allen, the ancestor of the lessor of the plaintiff, and from whom both parties derive title, to J. Langdon, dated September 18, 1805. At the February term, 1809, of the courtof common pleas for the county of Franklin, a judgment was obtained upon sci. fa. upon this mortgage, and execution sued out againát the mortgaged premises, a sale made thereof by the sheriff, who conveyed to the purchaser, L. Starling, by deed, dated July 11, 1809. There was no appraisement of the value of the mortgaged premises recited in the sheriff’s deed, or produced upon the trial. There were a number of questions made by the-counsel, on the motion for a new trial, but the court have deemed it necessary to consider but two. Did the statutes in force at the-time these proceedings took place require an appraisement of the mortgaged premises; and if so, was such appraisement essential to the validity of the sale ?

The act for the recovery of money, secured by mortgage, of February 12, 1805, which was in force at the time the mortgage from G. W. Allen to Langdon was executed, and at the time al>. the proceedings thereon were had, provided, that upon final judgment being entered upon the mortgage, “ a writ of levari facias might issue, by virtue of which the mortgaged premises should be taken in execution, and disposed of in the same manner and under the same regulations, that lands or tenements are, or may be, by law, disposed of *for the satisfaction of judgments.” It is contended that this provision of' the law requires the sale of mortgaged premises to be conducted in the same manner, and under the same regulations prescribed by law, for the sale of lands in satisfaction of judgments in force at the time of executing the mortgage, or suing out the writ of scire facias. But this is a construction which neither the words of the law nor the intent of the legislature will warrant. The expression, “the mortgaged premises shall be disposed of,” as lands are or may be by law,” refers to-the time of the disposition by sale of such mortgaged premises. It is the disposition of the mortgaged lands under the writ of levari facias, that the legislature is providing for, and they direct the-manner of that disposition to conform to the laws that may happen to be in force for the sale of lands in satisfaction of judgments, at the time of such disposition.

It has been repeatedly held, that the law in force at the time of a sale of lands upon execution must control the manner of proceeding, by the officer in conducting such sale, and not the law in force at the time of the rendition of the judgment, except those cases specially provided for by statute. It has been the uniform policy of our mortgage laws to require all lands mortgaged since June 1, 1805, to be sold in the manner prescribed by law, for the disposition of real estate by execution, in satisfaction of judgmen s in force at the time of such sale. Mortgages executed prior to June 1,1805, are, by another statutory jwovision, to be proceeded on, and the money secured thereby recovered in the manner directed by th© -laws in force at the time of the execution of such mortgage. But in 1805, the legislature, for all mortgages thereafter executed, instead of specifically directing the manner of proceeding to sell the mortgaged premises, after judgment upon scire facias, providetherefor by adopting as the course of proceeding the laws “that are or may be” in-force, for the disposition of lands in satisfaction of judgments; and this provision has since remained unchanged. The object was to prescribe a uniform mode of selling lands upon execution, whether the lands were mortgaged, levied on by the officer, or delivered up by the judgment debtor, and was intended as well for the safety of the officer as the benefit of both judgment debtor and creditor. *The execution law subjected the officer to a very severe penalty for any neglect or omission of duty, and prescribed a summary and rigorous manner of enforcing that penalty, upon the supposition that his duty was so plainly marked out, he could not in any case with ordinary care mistake it. The levari facias does not recite the date of the mortgage, and the officer has no means of ascertaining that fact, but by the examination of the record in court (a duty never imposed on him), yet, in all cases, he must ascertain it in order to execute the writ, if the sale must, as is contended by the defendant, be conducted under the execution law in force at the time of giving the mortgage. The true construe, tion of the mortgage act of 1805 is that the sale of the mortgaged premises, by virtue of the levari facias, shall be conducted in the same manner, and under the same regulations required by the law for the sale of lands upon judgments, in force at the time of such sale; and not under the law in force at the time the mortgage was executed, or any proceedings had thereon anterior to the sale; and it is understood that the practice in most parts of the state has conformed to this construction.

The judgment and execution law, in force at the time the sale of these mortgaged premises was made by the sheriff, under the levari facias, required that all real estate levied on by an execution, should be appraised and not sold for less than two-thirds, or one-half of such .appraised value, as it might happen to be improved or unimproved.

The next, and most material question is, whether a sale of lands upon execution, is valid without an appraisement. This is the first time this question has been brought before the whole court for argument and determination, and had it not been for the decision in the ■case of lessee of Patrick v. Ousterout, 1 Ohio 27, I should have felt no difficulty in coming to the conclusion, that the want of an appraisement of real estate would not render the sale by the sheriff void, so as to vest no title in the purchaser. It having been held in that ease by two of the judges of this court, that the appraisement constitutes an essential part of the proceedings in the sale of lands under an execution, our respect for that opinion, as well as the importance of the question, has induced us to examine with great care the point, and a majority of the *court have found themselves under the necessity of saying that in their opinion the sheriff’s deed will vest in the purchaser, not being a party to the judgment, a good and valid title to the lands levied on by, and sold under the execution, although no appraisement of the premises had been made.

The general principle by which the validity of sales upon execution is to be tested, is laid down by the Supreme Court of the United States, in Wheaton v. Sexton, 4 Wheat. 503. It is there said the purchaser depends upon the judgment, the levy, and the deed ; all other questions are between the parties to the judgment and the marshal. Whether the marshal sells before or after the return, whether he makes a correct return, or no return at all to the writ, is immaterial to the purchaser provided, the writ was duly issued, and the levy made before the return. Substantially the same doctrine has been recognized in the courts of most of the states, when lands are sold upon execution to satisfy judgments. 2 Bibb, 402; 3 Bibb, 217; 8 Johns. 366; 16 Johns. 357 ; 2 Bin. 40.

It is the well-settled doetrine-of the English courts, that the irregularity of the sheriff’s proceedings, in sales, will not vitiate the right of the purchaser, provided he had an execution authorizing him to, and he did in fact levy and sell. The purchaser must look to see there is a judgment, upon which to found an execution j that an execution has been issued, and a levy made, but is not bound to inquire into the regularity of all the ministerial acts of the sheriff, before or after the sale.

It is certainly true that the legislature might make an appraisement of the land, essential to the validity of the sheriff’s deed, as they can impose any condition or restriction upon those alienations of estates that derive all their efficacy from statutory regulations. But as the legislature, when the}*- subjected real estate to be levied on and sold,in satisfaction of judgments, were acquainted with the principles of the common law, applicable to sales by sheriffs under execution, it must be presumed they intended those principles to apply to the sale of lands, unless a different intent is clearly expressed or necessarily results from the provisions of the statute.

*In order to ascertain whether that intent has been manifested by the legislature, the court have not confined their attention to the act regulating-judgments and executions in force at the time this sale took place, but have examined all the subsequent statutes thereon, as they all, much as they differ in other particulars, contain the provision for the appraisement of lands, and direct that no sale thereof shall take place for less than a certain proportion of the appraised value. A clear expression of the intent of the legislature, that such appraisement was essential to the validity of the purchaser’s title, found in any one of the numerous acts made upon the same subject matter, would greatly assist in giving, if not entirely controlling the construction of the same provision in the other acts. This examination has shown, that from 1808 the provisions of the different acts regulating the appraisal, sale, and conveyance of land, by virtue of an execution, have been very uniform, especially considering the great number of acts the legislature have found it expedient to pass on the subject of judgments and executions.

It is admitted that the legislature have not in any of the judgment and execution laws declared, in so many words, a sale of lands by the sheriff under an execution void, if made without appraisement; but it is said, that by force of the proviso in the first section of the act of 1808, and contained in substance in all the subsequent execution acts, such appraisement is made a condition precedent to the sale, and essential to its validity. A majority of the court, however, after the most careful examination of the several statutes, are unable to give this construction to the proviso, as, in their opinion, it would have the effect to render it inconsistent with some, and entirely defeat other material provisions of the same statute. The act of February 22, 1808, amendatory to the act of 1805, regulating judgments and executions, provides “ that if execution be levied on lands, and the officer levying such execution shall call an inquest of five reputable freeholders, and the inquest shall on oath or affirmation return to said officer, under their hands and seals, an estimate of the real value of said estate, upon actual view of the premises,” that the officer shall forthwith deposit a copy of the appraisement with the clerk who issued the execution, and sell the same agreeably to the provisions of the *act of 1805; then follows the proviso in question: “ Provided, that no tract of land that has improvements thereon •shall be sold for less than two-thirds, nor any tract of land without improvements thereon, for less than one-half of the returned value by the inquest.” A statute should be so construed, that the several parts will not only accord with the general intent of the legislature, but also harmonize with each other; and a construction of a particular clause, that will destroy or render useless any other provision of the same statute, can not be correct. No word ever should be rejected, if the statute will admit of a rational and consistent construction without it. And in .order to arrive at a correct interpretation of the proviso in question, it will be necessary to consider its connection with all those provisions of the acts regulating judgments and executions, with which it has a direct and immediate relation. They all form part of the same system, and should be so construed that each distinót provision may have its proper effect, and the objects the legislature had in view in enacting the law be accomplished.

The construction contended for, by which a sale by the sheriff would be void, without appraisement, can not receive any aid from the circumstance that the clause of the statute relied on is in form of a proviso. A proviso is generally used in a statute to ■qualify, limit, or restrain the operation of general terms contained in a previous part of the section or act, and not to introduce a distinct and independent proposition. The section in which this proviso is found, is in all the statutes directory to the officer levying an execution on land. He shall call an inquest of five freeholders ; he shall return a copy of the appraisement to the clerk’s •office, and immediately advertise and sell such real estate;” then follows the proviso, “ that no tract of land shall sell for less ” etc. The natural office of the proviso here would seem to be to limit the general terms used in the direction to sell to cases where such sale could be effected for one-half, or two-thirds the appraised value, as the case might be. Whether this be the proper office of the proviso here or not, it certainly would have been entitled to more weight in the present question, had it been found in those .sections of the statute, declaring the effect of a sale of land, on execution by the sheriff, and the extent of the interest the purchaser acquired *by such sale, in a section, acknowledged to be directory to the sheriff of his duty.

It is also worthy of observation that the ninth section of both acts of 1805 and 1810 forbid, in as positive terms, the sale of lands-without advertisement, as the proviso in question does without appraisement, the words being, “ and no lands shall be exposed to sale on any writ of execution, until public notice by advertisement shall have been given,” etc. It has never, I believe, been supposed that it was essentially necessary to sustain a title under a sheriff’s deed, to show that the sale of the land was advertised the length of time, and in the manner directed by the statute. This section has ever been considered as directory to the sheriff, and any failure or neglect of his to comply with the directions it contains, might subject him to a penalty or an action, at the suit of the party injured, but would not render his deed to a purchaser void. And every argument derived from the supposed positive enactment of the legislature, as well as of interest or policy, that can be urged for requiring the appraisement as essential to the validity of the title of a purchaser at the sheriff’s sale, applies with equal force for requiring the public notice of the time and place of sale directed by the statute. In case the sheriff neglects either of these directions, the creditor or debtor, or both, may be seriously injured, but they have their remedy against the sheriff; or by an application in proper time to the court, proceedings under the execution may be arrested. If the officer having the execution, and the purchaser combine together to defraud the parties to the judgment, the sale will be void upon other principles, and th©i officer subjected to a penalty.

If the appraisement, by five freeholders under oath, was intended by the legislature as essential to the validity of the sheriff’s deed, they would, it is presumed, have provided some mode of preserving the evidence of such appraisements, for the benefit of the purchaser. The only provision of the statute looking to such preservation, is that directing the sheriff, before he proceeds to sell, to return a copy of the appraisement to the office of the clerk of the court issuing the execution. There is no direction in any of our statutes to the clerk to record the copy, or place it on file1 among the papers in the cause, to note it on his execution docket, or make *any other disposition of it, or even to preserve it. It can scarcely be believed that the legislature intended by the-proviso in question, that the purchaser at sheriff’s sale should be bound to show an appraisement under oath, by five freeholders,. whenever the legality of such sale was called in question, and yet make no provision for the preservation of the inquest, or the safekeeping of the copy delivered, to the clerk, or even for its admission in evidence, when it might happen to be preserved. The original inquest is left in the hands of the officer for his security; the copy is delivered to the clerk, not upon the return of the execution, but before the sale, that the creditor, debtor, and all persons desirous of purchasing, may ascertain the proceedings of the officer, and the appraised value of the lands, and regulate their conduct accordingly.

The legislature, in all the general acts regulating judgments and executions, have directed the officer selling land, to make to the purchaser a deed for the lands so sold; and have directed that the sheriff’s deed shall recite the writ or writs, and the judgment or judgments, or the substance thereof, by virtue whereof the said lands” were sold. The legislature, by directing this recital, evidenced their knowledge of the necessity of there being a judgment and execution to sustain the sheriff’s deed; and it was apparently their intention, that the deed should contain on its face a reference to those facts, upon which its validity must depend. If they had supposed that by the same act requiring these recitals, they had made the appraisement as essentia] to the purchaser’s title as a judgment, they would, it seems to me, have directed the officer making the deed also to recite such appraisement, especially, as they had not provided for the original being placed on record in any public office, or for the preservation and making evidence of a copy.

The legislature, in each of the several judgment and execution laws, have also declared the effect of a sheriff’s deed, without limiting it to those cases, where all the directions of the statute have been complied with. “ The sheriff, who, by such writ or writs of execution,, shall sell the lands, etc., so levied upon, shall make to the purchaser as good and sufficient a deed of conveyance for the lands, etc., so sold, as the person against whom such writ of execution was ^issued might have made for the same; and such deed shall vest in the purchaser as good and perfect an estate in the premises therein mentioned as was vested in the defendant, at or after the time the lands became liable to the satisfaction of said judgment.” The purchaser is to have as perfect an estate in the lands sold by the sheriff as the defendant had; provided, the sale had been made under an execution levied upon said lands. The levy of an execution upon the lands, and a sale by the officer, are considered essential to the purchaser’s acquiring the same estate in the land that the judgment debtor had; and when they had taken place the sheriff’s deed was to vest in the purchaser as good a title as the defendant could have made at any time, at or after judgment. The legislature, in adopting and adhering to this provision, for it belongs to all our general judgment and execution laws, do not appear to have contemplated any , other essential requisite to the validity of a sheriff’s deed than a judgment, execution, levy, and sale, by the proper officer; for it can not be admitted that in declaring upon what a sheriff’s deed should be founded, and its effect, that they would wholly have omitted one, and only one requisite of an effectual and valid conveyance, or any'reference to it. If the legislature intended to place the appraisement, judgment, and levy upon the same footing, of being equally necessary to the purchaser’s title, that intent would have been manifested by some mention of, or reference to the appraisement, in those parts of the statute providing for the deed to the purchaser, and its effect upon the estate of the judgment debtor. The expression of the statute just quoted, would probably have been, “ that the officer, who by such writ of execution, shall sell the said lands so levied upon ” and appraised, “shall make to the purchasers,” etc. The fact that in a number of different parts of the statutes, where the levy and sale are provided for, and their effect declared, no mention is made of the appraisement, would be sufficient to show the legislature did not intend by the proviso in question, that the sale should be void without appraisement.

By section 21 of the judgment and execution law of 1810 (and there are corresponding enactments in all the subsequent execution laws), the sheriff, or other officer having an execution in his hands, “who shall neglect or ^refuse to soil any lands, etc., or shall neglect to call an inquest of five respectable freeholders, etc., shall be amerced in the amount of the debt, damages and costs, with ten per cent, thereon, to, and for the use of the plaintiff or defendant, as the.case may be;” and the same section further provides a summary mode of obtaining said amercement, by either party; and that execution issue, in the name, and for the use of the plaintiff or defendant, as the case may be against the body, goods, lands, etc., of such officer; saving to both parties, the right of proceeding by attachment against the officer, at their election.

There is no provision for amercing the sheriff for selling lands without judgment or execution, or levy; nor for conveying to a pretended purchaser, when, in fact, there had been no sale, for then ■would all be inoperative and void, and would, in a legal sense, work injury to no one. But it is for omitting to do, what by law he was bound to do; or by proceeding in a manner different from that prescribed by the statute, and which, nevertheless, would bo operative, as between the parties, that he is to be amerced.

He is to be amerced, “for neglecting to call an inquest,” in the amount of the debt, and ten per cent, upon the motion of the judgment debtor, whose lands have been sold without valuation. The sale is absolutely void, the title still remaining in the judgment debtor, and the purchaser taking nothing by his deed, if the effect contended for by thó plaintiff, is to be given to the proviso ; and yet, for this void act, working no injury to the defendant, but a benefit, so far as the amount paid by the purchaser diminishes his debt', he is to amerce the sheriff in the full amount of that debt, and ten per cent, thereon. It would be doing injustice to the legislature, to suppose that they intended the sale of land upon execution, by a sheriff, without appraisement, to be absolutely void, when, at the Bame time, they subjected him for making such sale to so severe a penalty. If such sale be void, the parties would not be injured thereby. The judgment debtor would lose nothing, the creditor might be subjected to a short delay, but his lien upon the lands would still remain, and yet these parties, or one of them, can subject the sheriff to this penalty, for an act almost harmless as to them, while the purchaser who has paid his money, and acquired *no valid title, and the only one materially injured, is without remedy or redress. Courts of law are not warranted in giving such a construction to the acts of a legislature, as must necessarily work injustice and be fraught with injurious consequences, unless the intent of the legislature that they shall be so understood, is manifest and clear beyond any rational doubt. The legislature probably intended the provision requiring an appraisement of real estate, and that it should not be sold for less than a certain proportion of the appraised value, as a majority of the court understand it, as directory to the officer having the execution, making it his duty to cause such appraisement, and forbidding him under a penalty from selling for less than the statutory price, but as between the purchaser and all others, leaving the validity of the sale to depend upon the same principle, and to be tested in the same manner it would, had not the statute required such appraisement.

It is certain that the legislature intended that all lands upon which an execution had been levied, should be fairly appraised at their just value; and they made it the duty of the officer having such execution, to cause such appraisement to be made; and for a neglect of this or any other duty, he was liable to the party injured thereby. They did not expect that lands would be sold upon execution for less than one-half or two-thirds of their appraised value, and they made it the interest of the officer who had a control over the sale, to see that it was in all things conducted according to the direction of the statute. The failure or neglect in advertising, or causing an inquest to be held of the value of the land, subjected him to a penalty to the amount of the judgment, with ten, and at one time twenty-five per cent, addition, to be imposed and collected in a summary manner, as well as his liability to an action, at the suit of the person injured.

The legislature believed that they had insured the faithful discharge of the duties imposed upon sheriffs, as they must be always influenced thereto by the most powerful of motives, that of self interest; and that neither policy nor justice required that'the innocent purchuser should be subjected to loss by the neglect of a public officer, over whose acts he had no control.

*The policy of appraising lands levied on by execution in satisfaction of judgments, and requiring them to sell for a certain proportion of the appraised value, was early adopted, and since constantly adhered to in Ohio. It has been found, as it was expected, beneficial on the whole to both creditor and debtor. To creditor, by preventing the debtor, in the name of a friend, from purchasing a largo estate for a trifle, leaving the debt unsatisfied, and removing many of the inducements the debtor had to cover up his estate, and prevent it from a forced sale for what it would bring ; to debtor, by preventing the sacrifice, in a time of a general scarcity of money, of his real estate, for a sum greatly below its just value. In many instances it has retarded the collection of debts, especially where the sum- was large, and thereby produced inconvenience, and sometimes embarrassment to the creditor; but •its effect has been to eventually secure a more certain, though tardy payment of debts than could, in a country like ours, with limited pecuniary means, have been expected, if lands were sold upon execution for whatever sum might happen to be bid. This policy of protecting real estates from being sacrificed at sheriff’s sales has been sufficiently protected, without subjecting an innocent purchaser to certain and irremediable loss when the officer has neglected his duty.

But the judgment debtor is not compelled to rely alone upon the liability of the officer for his remedy, ample and expeditious as that is made by statute. If the sheriff should attempt to sell without appraisement or advertisement, a judge’s order might easily be obtained to stay all proceedings on the execution until the sitting of the court, when the sheriff might be punished for attempting to abuse the process of the court, if such should be the fact, and his proceedings set aside for irregularity. And in cases where the sale had taken place, but the money not paid over to the creditor, or a deed delivered to the purchaser, the court might interfere and set aside the proceedings on the execution as irregular, as they could then place the parties in the same situation they were in before the irregularity took place. There are many ways under our law and practice in which, upon proper application, a court could effectually interfere to prevent a sale of lands not appraised from being ^perfected by the execution and delivery of the sheriff’s deed. Protection against wrong from the hands of ministerial officers, as well as redress for injuries sustained, is abundantly furnished by law, and it must be for the neglect of the judgment.debtor, if his lands are ever sold without the requisitions of the law being strictly complied with. But when the judgment debtor, who ought to be vigilant if he will enjoy his privileges and protect his rights, stands by and suffers the sheriff or .other officer to sell his lands after judgment, ex-eeutiqn, and levy, receive the purchase money, and execute and deliver a deed of conveyance to the purchaser, such sale is not vitiated, or the deed void, for want of an appraisement, or on account of a defective appraisement. The judgment debtor’s remedy is against the officer for neglect of duty ; and to him he must look for redress for the injury he has sustained.

If the view, which a majority of the court have taken of the judgment and execution acts, prior to the law of 1824, be incorrect, and the true con&L. action of those acts should require an appraisement of lands, as essential to the validity of a title, derived ■under a sale by the sheriff, the mischief resulting from such in ■ correct decisions must be small, and there is no danger of its inducing carelessness or inattention on the part of sheriffs. By a provision of the judgment and execution law of 1824, the court to which an execution shall be returned, upon which lands have been sold, shall carefully examine the proceedings of the officer, and if they are satisfied that the sale has been conducted in all respects according to the provisions of the act, they shall cause an entry thereof to be made upon their journal, with an order to the officer to make to the purchaser a deed. The sheriff may retain the purchase money until the proceedings have been approved by the ■court, and this court have decided the deed of the sheriff inadmissible in evidence without it be made in pursuance of an order of the court.

These provisions of the statute are admirably adapted to protect the rights and interests of the judgment creditor and debtor, as well as the purchaser at sheriff’s sale; and so long as courts ■carefully examine into the regularity of the sheriff’s proceedings upon the levy, appraisement, advertisement, and sale, there is no danger of injury being sustained *by any of the parties interested. It will probably produce, ere long, the desirable effect of making titles, derived under sheriff’s deeds, equal in public estimation to those derived either from individuals or the United ■States.

Dissenting opinion of

Judge Burnet :

I concur most cheerfully in the decision made by the court in this case, but my conclusion has been derived from different premises.

I am satisfied that the payment of the money by Starling, under whom the defendant holds, and the quitclaim deed from Lang-don, the mortgagee, ought to be treated as a transfer of Langdon’s interest in the mortgage. The day of payment had passed, and the mortgagee had a right to the possession of the mortgaged premises. The defendant may be considered as in possession under the mortgage, and in strictness of law, he has a perfect legal title, which can not be disturbed, but by a bill to redeem, which is a distinct subsequent procedure, in which relief may be granted, or denied, according to the circumstances and equity of the case. TU proposition stated in argument, that a judgment on set. fa. meiges the mortgage, may be admitted in cases to which it properly applies, and where there are’no circumstances to counteract it. The law abhors multiplicity of action, and where one remedy has been resorted to with success, it usually restrains resort to another to accomplish the same purpose. In Reedy v. Burgent, 1 Ohio, 157, cited by plaintiff, the remedies were considered as concurrent, not as auxiliary. The object was to obtain two distinct judgments at law, for the same debt, which was supposed to be inadmissible under the statute, but it can not be inferred from that case, that the judgment so merged the mortgage as to prevent an assignment, or to prohibit an ejectment to recover the possession, or a bill to foreclose the equity of redemption. A proceeding by a sei. fa. is like an action of debt on the bond which accompanies a mortgage it may bar a second action to recover a judgment for •the same debt, without restraining an assignment, or affecting the auxiliary remedies. In the case of Jackson v. Delaney, 13 Johns. 538, before the court of errors, judgment had *been obtained on the bond accompanying the mortgage, and revived by sei. fa., and yet it was held that the heir of the mortgagee was a trustee for the children to whom the beneficial interest had been devised,. and that they might use his name to recover the money or to foreclose the mortgage, or to gain the possession; and in the same case, 11 Johns. 411, before the Supreme Coui't, it was held, that the lessor of the plaintiff, who had purchased and taken possession by virtue of a sheriff’s deed, on a sale under a judgment, for the money secured by the mortgage, could not be treated as a stranger by the mortgagor, and that although the proceedings to recover might be insufficient to support the sale by the sheriff to the lessor, yet as a claimant under the representatives of the mortgagee, he ought not to be disturbed in his possession. A judgment, therefore, for the mortgage debt, does not produce such a merger of the mortgage as to prevent subsequent proceedings, or to restrain a purchaser, circumstanced as the present defendant is, from a recourse-to the rights and powers of the mortgagee for bis protection. It is not necessary to controvert the position taken by the plaintiffs, that the mortgaged estate can not be separated from the debt, and that the payment of the debt extinguishes the mox'tgage, because the facts of the case do not render that doctx’ine applicable. It is-true that when Starling paid tho money, he supposed he was discharging the debt, and securing to himself the legal title, but on the supposition that the sale was void, his calculations were erroneous. The money was paid by mistake; he acquired no title; the consideration failed, and he had a right to retain the money. The debt, then, was not extinguished, and Starling had a right to appropriate the amount paid by him to the purchase of an interest in the mortgage, and to protect himself under it. The quitclaim deed,, as it has been called, is carelessly and inartificially drawn, but the circumstances of the case, when taken in connection, show the intention of the parties, and' what ought to be its legal operation. No person can doubt for a moment, that it was Starling’s intention to protect himself against the consequences of a supposed illegality iu the sheriff’s sale. That could not be done by any arrangement with Langdon, other than a purchase of his interest in the mortgage. All contracts are -^construed with reference to the intention of the parties. The release of Langdon can not operate to any valuable purpose, if it be considered as intended to convey an interest in the land, distinct from the debt, for the security of which the mortgage was given. But we know that it was intended to accomplish some valuable .object, and the purpose for which it was designed ought to be lost, if by any construction in the power of the court, such a consequence may be prevented. One of the many maxims given by Lord Coke, is lex semper intendit quod convenit rationi. It may then be asked, what does reason and common sense dictate in a case like this? Is it that Langdon’s deed shall piass for nothing, or that it shall be taken in connection with the payment of the money, as the consideration of the transfer of some valuable right vested in Langdon as a mortgagee ? I should say the latter. And I confess that I see no other way in which that deed can operate, but as a conve3mnce of Langdon’s interest in the mortgage, in consideration of his being permitted to retain the money paid by Starling, which, otherwise, he would be liable to refund.

This subject presents many points, some of which are both interesting and difficult. It is not my intention, however, to enter ■on a formal discussion of any of them, but merely to state the grounds on which my assent- is given to the decision of the court, which is, that the payment of the money by Starling, whatever-may have been the original object of it, is not now to be considered as an extinguishment of the mortgage debt, but the consid«ration of the conveyance of such an interest in the mortgage as will protect his possession in the present suit.

In relation to the appraisement, two questions are presented:

1. Did the law relating to this mortgage require an appraisement of the land before the sale?

2. If it did, does the omission of the appraisementvitiate the sale?

First. The mortgage to Langdon was executed in 1805. The judgment on it was rendered in 1809. The act under which the proceedings were had, was passed in 1805, and provides “that the mortgaged premises shall be taken in execution and disposed of in the same manner, and under the same regulations, that lands are, or may be by law ^disposed of for the satisfaction of judgments.” I take it to be the true construction of this act that whenever the sheriff receives an execution on a judgment, rendered on a mortgage, he must proceed in all respects, as is directed by the act regulating the sale of land on ordinary judgments, that may happen to be in force at the time when the execution is put into his hands.

The execution on this mortgage came to the hands of the sheriff in 1809. The law of 1808, regulating judgments and executions, was then in force, the first section of which provides, that if execution be levied on land, thé officer shall call an inquest of five reputable freeholders, and the inquest shall, on oath or affirmation, return to said officer, under their hands and seals, an estimate of the real value of said estate, on actual view of the premises. This being the act by which the sheriff was to be governed, the first question admits of no doubt; it was the sheriff’s duty to cause the land to be appraised.

Second. On the second question I am so unfortunate as to differ from the majority of the court. It is their opinion that that part of the law, which relates to the appraisement, is directory to the sheriff, and that an omission to attend to it will not be fatal to the title of the purchaser, unless the exception be made before the execution of the sheriff’s deed.

The impression made on my mind, by the most careful attention that I have been able to give the' subject, is, that the appraisement is a condition precedent, without which the sale is absolutely void. The statute, after requiring the sheriff to cause the estate to be appraised, as above, proceeds, and the said officer, receiving such return shall forthwith deposit a copy thereof with the clerk of the court where such writ issued, and immediately advertise and sell such real estate, agreeably to the provisions of the ninth section of the above-recited act, provided no tract of land that has improvements thereon, shall he sold for less than two-thirds, nor any tract of land without improvements thereon for-less than one-half of the returned value by the inquest. The ninth section referred to relates to the time and manner of advertising. It is here made the duty of the officer to return a copy of the appraisement before he is permitted to *advertise; and his-power to sell is subject to the proviso, or condition, that the sale be made for not less than a certain amount of the appraised value. The prohibition to sell for less than that amount is as positive as language can make it, and must qualify and control the direction previously given.

If the act had given an unqualified power to sell, and had then-pointed out the mode of proceeding, including the appraisement, it might have .been considered as directory to the officer. But admitting that it was the design of the act to make the appraisement a condition precedent, and not a direction merely, it would be difficult to select terms better adapted to the purpose, or to give them a better collocation.

I do not discover anything in section 21 of the act of 1810 which authorizes the court to amerce the sheriff, at the instance of either party, for proceeding to sell without appraisement.

It provides, among other things, that if the sheriff shall refuse >.o sell, or shall neglect to call an inquest, or shall refuse to pay the plaintiff all money made for his use, or shall refuse to pay to-the defendant any surplus that may remain, after satisfying the execution, he shall be amerced, etc., for the use of said plaintiff or defendant, as the case may be. The three first omissions are injurious to the plaintiff alone, and therefore entitle him to move against the sheriff. The first is injurious, by delaying the collection of the money, which can not be effected without a sale. The-second is injurious, by delaying the sale, for without an appraisement the sale can not legally be made ; and the third is injurious,, being an illegal detention of the money. The fourth is an injury to the defendant, and for that, and that only, he may move against, the sheriff. The provisions of this section are separate and distinct, neither of them relating to a sale without appraisement.

In considering this question, it should be borne in mind that at-common law, lands can not be sold on execution. The authority of the officer to sell is derived altogether from the statute, and it will not be pretended that the legislature had not the same right to prescribe the terms and conditions of the sale which they had to authorize the sale itself.

*It was the policy of the English law to protect real estate from such sales, and when our legislature saw proper to change that policy, they did it under limitations and restrictions. The case stands thus : The language of the common law is, lands shall not be sold on execution. The, language of our statute is, they may be sold; provided they are first appraised, and then sold for not less than a certain proportion of the appraisement. The statute does not subject them to sale, nor give the officer a power to sell, till they are appraised; of course, before the appraisement, they remain as they were at common law, and can not be sold.

Ohio is essentially and necessarily an agricultural state. It has, therefore, been her policy to guard against the ruinous consequences of sacrificing real property, by forced sales ; and without such a guard, the cultivators of the soil, who form a large majority of our population, could not have been easily induced to change the common law in this particular.

It may, perhaps, be said that the construction given by the majority of the court puts it in the power of every defendant to avail himself of this guard. But how often does it happen, as was the fact in the ease now under consideration, that judgments are obtained against non-residents and infants, who have no notice; and that executions issue against residents, when absent from the state, who have no knowledge of the proceedings till it is too late to object.

It will be recollected that by the law of 1805 the sheriff was not directed to summon appraisers, unless the defendant requested it. The consequence was, that persons absent from the state, or unacquainted with legal proceedings, lost the benefit of the provision, to remedy which, the inquest was directed in all eases, and it is worthy of inquiry, whether the construction now given does not subject the present law to the same difficulties and objections which were complained of in the act of 1805, to remedy which this law was, in part, intended.


author: Judge Burnet :

text:
    *The Heirs of James Gill v. James Towler.
    Construction of entry.
    This cause was adjourned from the Supreme Court of Greene county. The complainants, holding under the eldest entry and survey and the junior patent, claimed to recover the land in dispute, against the elder patentee, and the case turned altogether upon the construction of the complainant’s entry, the locative calls of which were as follows: “Beginning at the lower back corner of John Jamieson’s survey, No. 387, running with his line, to the line of John Woodford’s heir, survey No. 548, thence with Woodford’s line to the corner of John Stokes’ survey, No. 390, and with Stokes’ line to the beginning.” The entry was for two hundred acres, and the patent for the same quantity, the calls of which, except that the courses and distances are specified, are the same as those of the entry. The defendant claimed under a junior entry, which covered part of the land included in Stokes’ survey; and in extending over Stokes’ line, called for as a boundary of the complainant, interferes with him.
    By protracting the complainant’s entry and survey, according to the locative calls, as connected with the surveys, which are made the boundaries, the actual quantity included would be one hundred and fifty-six acres. But by actual measurement, on the ground, according to these calls, and there, was no interference or dispute about them, it contains two hundred and forty-seven acres. The quantity in dispute between the parties in this suit was thirty-eight acres.
    In specifyingthe courses and distances in the survey and patent, an error was made, which prevented the survey from closing; but the calls of the entry, as to the boundary, were not departed from.
    Alexander, for complainants.
    Uollet, for defendant.
   Opinion of the court, by

Judge Burnet :

The complainants claim under an entry in the name of Stubblefield, in the following words: Beverly Stubblefield *enters two hundred acres of land, on part of a military warrant, No. 1,203, on the waters of the Little Miami, beginning at the lower back corner of John Jamieson’s survey, No. 387, running with his back line to the line of John Woodford’s survey,. No. 548, then with Woodford’s line to the corner of John Stokes’ survey, No. 390, and with Stokes’ line to the Beginning.”

The defendant claims a part of the same land on a junior entry, on which he has obtained the eldest patent.

The location of the complainants cover a tract of land, in a triangular shape, formed and bounded by the three surveys called for in the entry. The location has been surveyed agreeably to the calls of the entry, and a patent has issued, but subsequent in date to the patent of the complainants. It is alleged in the answer, that Stubblefield’s entry and survey appropriate more land than the warrant covers, but it is admitted that its calls are precise and certain; that the objects called for were notorious at the time of the entry, and that it is good for the quantity of land which the locator had, or ought to appropriate. The case, therefore, as presented by the pleadings, would seem to depend on a matter of fact, whether the calls of the entry, as they exist on the records in the surveyor’s office, do, or do not include more than two hundred acres.

The course and the length of each of the three lines which Stubblefield calls for as his boundary, have been ascertained, and a protraction has been made, from which it appears that his location, on paper, conveys less than two hundred acres; he has, therefore, professed to enter the quantity named in his warrant, but by the course and distance of his lines, as they are recorded, has actually entered less. The ascertaining of this fact, it was supposed, would settle the controversy, but I understood the defendant’s counsel as contending in their argument, that if the courses and distances, as. described in an entry, contain .the precise quantity of land expressed, and intended to be appropriated, yet if the lines and courses were notorious, and are ascertained, by actual survey on the ground, to contain a greater quantity of land than is expressed in the warrant, the entry does not appropriate the whole of the land within its boundaries, but that in such case the quantity of land which the locator is ^entitled to, shall be laid off on each line, as a base, and that the locator shall be considered as covering only so much of the land as is common to all the surveys. This rule, or mode of surveying, has been established in Kentucky, for the laudable purpose of sustaining locations that would otherwise be void; but I understand that rule as applying to cases where the-calls of the entry professedly include too much land, and not where the excess is owing, either to some inaccuracy in the course, or in the measurement of the lines. The error of a surveyor, in placing his corners at a greater distance from each other than he intended, or in placing them somewhat out of the course he is calling for, so as to make the entry, by a survey on the ground, include too much land, has never been considered as affecting the validity of the location; if it did, by far the largest number of entries in the district would be void. If a locator will venture to-call for notorious, sensible objects, without attempting to ascertain the distance between them,- and by so doing appropriates too much-land, this objection will apply. Such was the fact in the cases reported in 3 Bibb and 1 Marshall. But in this case, the locator called for lines of surveys which had been previously measured. The length and course of those lines was stated on the record; he called for them as they were stated, and by those calls, the entry is ascertained to include less land than the warrant entitled him to. It appears, however, from a correct resurvey, that those lines, or some of them, are, in fact, longer than the recorded distance; and it is owing to this circumstance, that the location contains more land than the warrant was issued for.

There is but one fact that can distinguish this case, in any degree, from any ordinary case of surplus, ascertained by a resurvey, which is this: that the entry calls for lines and corners that existed, and were known, when the location was made; and the-only question arising on this fact is, whether the locator had a right to rely on the recorded length of those lines, as they had' been ascertained by former surveyors, or whether he was bound, at his peril, to remeasure and correct any error that might exist. If the latter be insisted on, the proposition amounts to this: that, an error in distance, which does not injure the location of him who committed *it, shall be fatal to a subsequent locator, to-whom it was not known, and who has innocently relied on the correctness of a public record.

On principle, the objection urged against Stubblefield applies with more force to the surveys of Jamieson and others, for which he calls; because the error increases the quantity of land in their -.surveys beyond the amount of their warrants, in the same manner that it does the land of Stubblefield, and this consequence results from their own inaccuracy. The defendant does not pretend that those surveys are injured by their surplus. But why not? It is because it appears of record, that the owners professed to take the quantity they were respectively entitled to, and no more; and because we are bound to attribute the variance, or excess, to the ■ordinary inaccuracy of measuring through a forest. The same excuse may be offered for the complainants, and with more propriety.

The fact, whether Stubblefield’s entry includes too much land, or not, so far as it is to affec.t the legality of the entry, must be determined by the courses and distances, as they are found on •record, and not by the remeasurement of the ground.

"We do not distinguish between a call for course and distance, ascertained by the locator who makes the call, and a call for the recorded course and distance, of an existing survey, ascertained by a former locator. In either case, the validity of the location, as •far as quantity affects it, must be ascertained by the calls, and not by remeasurement. ,

If this view of the subject be correct,.the case is not within the decisions cited from Kentucky, and the elder patent of the defendants can not prevail over the. prior equity of the complainants.