Miller v. Kerr. 7 W. take, given a warrant for military services in the continental line, on a certificate authorizing a warrant for service in the state line; and that, in recording it, he has pursued the certificate, and not the warrant. The question is, can this court support a prior entry and survey, on a warrant thus issued by mistake, against a senior patent? It has been urged, on the part of the appellants, that the title of Thomas Powell, for services in the state line, is precisely to the same quantity of land as if those services had been rendered in the continental line; his claim on the State of Virginia is the same. That, had the warrant been properly issued, it might have been satisfied in the district set apart for the officers and soldiers of the state line, which district is in the State of Kentucky, and can no longer be appropriated by the holders of warrants for military services in the Virginia state line. Thus the rights under Powell are sacrificed, without any fault of his, in consequence of à mistake committed by the register of the land-office. They say that they are purchasers, without notice, of a title apparently good; and ought not to be affected by the mistake of a public officer. They insist that in the hands of a purchaser, a warrant ought to be liable to no objection founded on circumstances anterior to its date. There is great force in these arguments; and, if the mili- [ 5 ] tary district had remained a part of Virginia until Mr. Powell's warrant was entered, they would, perhaps, be unanswerable. But, in 1784, this district, with all the territory claimed by Virginia northwest of the Ohio, was ceded to the United States, with a reservation in favor of the legal bounties of the Virginia troops on continental establishment only. There is no reservation whatever in favor of the bounties in land, to the state troops. Provision for them was made elsewhere. After this cession, no title could be acquired under Virginia, which was not included within the reservations. The same principle was asserted by this court, in the case of Polk's Lessee v. Wendell, 5 Wheat. Rep. 293, and is, we think, too clear to be controverted. The great difficulty in this case consists in the admission of any testimony whatever which calls into question the validity of a warrant issued by the officer to whom that duty is assigned by law. In examining this question, the distinction between an act which is judicial, and one which is merely ministerial, must be regarded. The register of the land-office is not at liberty to examine testimony, and to exercise his own judgment respecting the right of an applicant for a military land warrant. He was originally directed to grant warrants to the officers or soldiers "producing to him a certificate of their * Newsom v. Pryor's Lessee. 7 W. claims respectively from the commissioner of war, and not otherwise." When the office of commissioner of war was put [6] down, this duty devolved on the executive department, whose certificate was as obligatory on the register as that of the commissioner of war had been. The question of right, then, was tried before the executive council, and the register is a mere ministerial officer carrying the judgment of the executive into execution by issuing his warrant in pursuance of their certificate. This certificate is filed and preserved in the office as the document on which the warrant issued. It is as much a part of the record as the warrant itself. A warrant and survey authorize the proprietor of them to demand the legal title, but do not, in themselves, constitute a legal title. Until the consummation of the title by a grant, the person who acquires an equity holds a right subject to examination. The validity of every document is then open to examination, whatever the law may be after the emanation of a patent. If this be correct, and the objection to the warrant delivered to Mr. Powell can be considered, he is shown, by the clearest testimony, to be the holder of a warrant issued by mistake. As an officer in the state line, he was not entitled to a warrant which could appropriate lands lying in the military district northwest of the Ohio. As the plaintiffs are endeavoring to set aside the legal title, because they have the superior equity, we think it consistent with the principles of the court to rebut this equity by any circumstances which may impair it. [ 7 ] * The case is a hard one on the part of the plaintiffs; and they may have strong claims on the liberality and justice of the United States, or of Virginia; but we do not think the legal title can be made to yield to an equity founded in the mistake of a ministerial officer. Decree affirmed, each party paying his own costs. 7 W. 212; 6 P. 666; 12 P. 264; 15 P. 93; 3 H. 650. NEWSOM V. PRYOR'S LESSEE. 7 W. 7. A patent for lands in Tennessee, issued upon a survey and plat, returned as if actually surveyed, must be treated as if the survey returned had been actually made, though no actual survey was made. A call for a natural object, in such a survey, controls both course and distance. [8] And this, whether the object called for be in the course of the line, or at the end of the line. THIS cause was argued by Law, for the * plaintiff in error, and by White, for the defendant in error. Newsom v. Pryor's Lessee. 7 W. MARSHALL, C. J., delivered the opinion of the court. This is a writ of error to a judgment given in the circuit court for the district of West Tennessee, in an ejectment brought by the defendants in error against the present plaintiff. The plaintiffs in the court below claimed under the elder patent, to the validity of which there was no objection. Of consequence, the only question in the cause was, whether the lines of their grant comprehended the land in contest. The grant was made for 5,000 acres of land, ❝lying on both sides of the two main forks of Duck River, beginning, &c., and running thence west, 894 poles, to a white-oak tree; south, 894 poles, to a stake crossing the river; thence east, 894 poles, to a stake; thence north, 894 poles, to the beginning, crossing the south fork.” It is apparent that a survey was not made in fact, but that, after marking a beginning corner, the surveyor made out and returned a plat, which he supposed would comprehend the land intended to be acquired. It is now too late to question the validity of grants made on such plats and certificates of survey. From the extraordinary circumstances of the country, they were frequent, and, in conse quence of those circumstances, have received the sanction of * courts. An immense number of titles, believed to be [ *9] perfectly secure, depend upon the maintenance of such grants. The extent of the mischief which would result from unsettling the principle, cannot be perceived; and is certainly too great now to be encountered. The patent, therefore, must be considered as if the survey had been actually made. In consequence of returning plats where no actual surveys had been made, and where the country had been very imperfectly explored, the description contained in the patent often varies materially from the actual appearances of the land intended to be' acquired. Natural objects are called for in places where they are not to be found; and the same objects are found where the surveyor did not suppose them to be. In a country of a tolerably regular surface, no considerable inconvenience will result from this circumstance. The course and distance of the patent will satisfy the person claiming under it, and seldom interfere with the rights of others. But in a country where we find considerable watercourses and mountains there must be more difficulty. The surveyor calls for some known object, but totally miscalculates its courses, distances, or both, from some given point which he has made the beginning of his survey; and there is a variance in the different calls of his survey, and of the patent founded on it. As in this case, the second line is to run south 894 poles, to a stake, crossing the river. This distance will not reach the river; and must be continued to 1,222 poles, to cross the river. Newsom v. Pryor's Lessee. 7 W. The distance must be disregarded, and this line so extended { * 10 ] as to cross the river, or the distance must control the call for crossing the river. These difficulties have occurred frequently, and must be expected to occur frequently where grants are made without an actual survey. Some general rule of construction must be adopted; and that rule must be observed, or the conflicting claims of individuals must remain forever uncertain. The courts of Tennessee, and all other courts by whom causes of this description have been decided, have adopted the same principle, and have adhered to it. It is, that the most material and most certain calls shall control those which are less material, and less certain. A call for a natural object, as a river, a known stream, a spring, or even a marked tree, shall control both course and distance. These decisions are founded on two considerations. Generally speaking, it is the particular intention of the purchaser to acquire the land lying on the stream called for, as being more valuable than other land; and, in every case where a natural object is mentioned, it designates the land surveyed had there been an actual survey, much more certainly than course and distance can designate it. In this case, for example, the surveyor says that he has run south 894 poles, to a stake crossing the river. Now, it is much more probable that he should err in the distance, than in the fact of crossing the river. The conclusion, therefore, had an actual survey been made, would be, that the line did cross the river. The general effect of this principle undoubtedly is, that [11] the purchaser acquires more land than is expressed in his grant, and more than he has paid for. Where this has been thought an object worthy of legislative attention, provision has been made for it. Courts cannot now shake a principle so long settled, and so generally acknowledged. In this case, the counsel for the defendant in the court below seems to have admitted the rule, but to deny its application to this case. He founds his application to the court on a supposed distinction between a call to stop at a river, and a call to cross a river. After stating the testimony, "he required the judges to instruct the jury, that if they believed there was no testimony to prove the making of any other corner than the beginning corner, the correct mode of running the said grant would be to go the course and distance from the beginning corner, which would form the termination of the first line, and run from thence the course and distance called for in the second line; and if the course and distance will not reach across the river, that the call in the grant for crossing the river ought to be considered Newsom v. Pryor's Lessee. 7 W. as a mistake in the surveyor, and be rejected; and the second line should terminate at the end of the distance, and from thence run the third line according to the course and distance, and from thence to the beginning. And the said counsel requested the judges to instruct the jury that such call as is in this grant, for a line to pass a river or other object, will be different in principle from what it would be if said call had been for said river, at the termination of the line or boundary; and although, in the latter case the law is, that such natural object shall be the boundary, disregarding [ 12 ] distance, yet, in the present case, the distance shall be the criterion of boundary, disregarding the call for crossing the river." The judges refused to give this instruction, and charged the jury "that the second line of the said grant must be extended such a distance on the course called for as will cross Duck River to the opposite bank." To this opinion an exception was taken; and the jury having found a verdict for the plaintiff, in ejectment, the defendant, in the circuit court, has brought the cause into this court by a writ of error. We can perceive no sound reason for the distinction between a call for a river at the end of a line, and for a river in the course of a line. There is as much reason in the one case for supposing the surveyor intended the line should cross the river, or, in case of actual survey, for supposing he did cross the river, as in the other, for supposing an intention to stop at the river, or an actual termination of the line at the river. Whether the motives for the call were that the acquisition of the land on the river was an object with the purchaser, or that the call for the river conduced more certainly to the designation of the land intended to be acquired, the motives for considering it as the controlling call in the patent, to which distance must be subordinate, seem to be precisely the same whether the call be to cross the river, or to terminate at it. * It has been urged as an objection to the mode of surveying the land directed by the court, that the last line will [ not cross the south fork, and that the land will not be " on both sides of the two main forks of Duck River." But this objection will not be removed or diminished by the instruction required by the plaintiff in error. Nor can the land be so surveyed as that the last line shall cross the south fork. From the termination of the third line, it is necessary to proceed to the beginning and the plat shows us that the south fork does not run between the two points. It cannot be brought between them, if at all, without extending the third line an immense distance, and changing the whole |