Tennessee.-Kentucky. entry; but where the entry has never in fact | nant to the locative call, and both are notorious been made, and the warrant is forged, no right the former must yield to the latter. Ibid. accrues under the act of North Carolina of 1777, and the grant is void. Polk's Lessee v. Wendall, 5 Wheat. 293; 4 Cond. Rep. 650. 23. A call for the land of T., who in fact had no claim to any, is good, if it can be shown that there is a notorious place which is also identified by that name. Ibid. 4. Tennessee. 24. In Tennessee, the younger patent on the elder entry prevails over the elder patent on the younger entry. Polk's Lessee v. Wendal, 9 Cranch, 87; 3 Cond. Rep. 286. 25. Where the plaintiff in ejectment claimed title to lands in Tennessee, under a grant from that state dated April 26th, 1809, founded on a entry made in the office in Washington county, dated January 2d, 1779, in the name of J., on which a warrant issued May 17th, 1779, to the plaintiff as the assignee of J.; and the defendant claimed under a grant of North Carolina of Au 14. Where a party, in order to prove there were no entries to authorize the issuing of the warrants, offered in evidence certified copies of warrants from the same office, of the same dates and numbers, but to different persons, and for different quantities of land: Held, that this was competent evidence to prove the positive fact of the existence of the entries specified in the copies: but in order to have the negative effect of disproving the entries alleged to be spurious, the whole abstract ought to be produced in court, or inspected under a commission, or the keeper of the documents examined as a witness, from which the fact might be ascertained of the nonexistence of the contested entries. Ibid. 15. In such case, certificates from the secre-gust 9th, 1787: it was held that the prior entry tary's office of North Carolina, introduced to prove that on the entries of the same dates with those alleged to be spurious, other warrants issued, and other grants were obtained in the name of various individuals, but none to the party claiming under the alleged spurious entries, is competent circumstantial evidence, to be left to the jury. Ibid. 16. In such case, parol evidence that the warrants and locations had been rejected by the entry taken as spurious, is inadmissible. Ibid. 17. The acts of assembly of North Carolina, passed between the years 1783 and 1789, invafidate all entries, surveys, and grants of land within the Indian territory, which now forms a part of the state of Tennessee. But they do not invalidate entries, commencing without the Indian boundary, and running into it, so far as respects that portion of the land without such boundary. Danforth v. Wear, 9 Wheat. 673; 7 Cond. Rep. 722. 18. The act of North Carolina of 1784, authorizing the removing of warrants which have been located upon lands previously taken up, so as to place them upon vacant lands, did not repeal, by implication, the previously existing laws which prohibited the surveys of lands within the Indian boundary. The lands to which such warrants are removed, must be lands previously subjected to entry and surveys. Ibid. 19. If the description in an entry is good, and such as will reasonably lead a subsequent locator to the object, the entry is good, although the object may not be notorious; but if the objects are called for by description, and that description is insufficient, the entry then can only be made good by establishing the notoriety of the object. Ibid. 20. If, on the face of the entry, it be indifferent in what shape it is to be surveyed, it may be surveyed either in a square or oblong figure. Henderson's Lessee v. Long, 1 Cooke's Rep. 120. 21. An entry takes effect from its date, and not from its place on the entry book. Graham's Lessee v. Dudley, 1 Cooke's Rep. 353. 22. If the general call in an entry be repug might be attached to a junior grant, so as to overreach an elder grant; and that, as a grant had issued to plaintiff as assignee of J.'s entry, it was prima facie evidence that the entry was the property of the plaintiff. Ross and Morrison v. Reed, 1 Wheat. 482; 3 Cond. Rep. 634. 26. Although the state courts of Tennessee have decided that, under their statute, declaring an elder grant founded on a junior entry to be void, a junior patent founded on a prior entry shall prevail at law against a senior patent founded on a junior entry; this doctrine has never been extended beyond cases within the express purview of the statute of Tennessee, and cannot apply to the case of titles deriving all their va lidity from the laws of Virginia, and confirmed by the compact between the two states. Robin son v. Campbell, 3 Wheat. 212; 4 Cond. Rep. 235. 27. The general rule is, that remedies, in re spect to real property, are to be pursued accord ing to the lex loci rei sitæ. The acts of the two states are to be construed as giving the same validity and effect to the titles in the disputed territory, as they had or would have in the state in which they were granted, leaving the reme dies to enforce such titles to the lex fori. Ibid. 5. Kentucky. 28. In Kentucky, a survey without an entry in the book of entries, is not a sufficient founda tion of title. Wilson v. Mason, 1 Cranch, 45; 1 Cond. Rep. 242. 29. The mode of appropriating lands desig nated by the legislature, must be pursued; and the court has no power to substitute any equiva lent act for that required by law. Ibid. 97, 99. 30. Loose and vague expressions in an entry of land in Kentucky, may be rendered sufficiently certain by reference to natural objects mentioned in the entry, and by comparing the courses and distances of the lines with those natural objects. Marshall et ux. v. Currie, 4 Cranch, 172; 2 Čond. Rep. 72. 31. If an entry be placed on a road at a cer tain distance from a given point, and there is no other call, showing a contrary intent, the distance Kentucky. is to be computed by the meanders of the road, ard not by a straight line. Bodley v. Taylor, 5 Cranch, 191; 2 Cond. Rep. 227. 32. A subsequent locator, without notice of the prior location, cannot protect himself by obtaining the elder patent. Taylor v. Brown, 5 Cranch, 234; 2 Cond. Rep. 235. 33. A survey is not void because it includes more land than was directed to be surveyed by the warrant. Ibid. 34. The patent relates to the inception of title; and therefore, in a court of equity, the person who has first appropriated the land has the best title, unless his equity is impaired by the circumstances of the case. Ibid. 35. The equity of the prior locator extends to the surplus land surveyed, as well as to the quantity mentioned in the warrant. Ibid. 36. The locator of a warrant himself undertakes to find waste and unappropriated land; and his patent issues upon his own information to the government, and at his own risk. He cannot be considered a purchaser without notice. Ibid. 37. If, by any reasonable construction of an entry, it can be supported, the court will support it. Massie v. Watts, 6 Cranch, 148; 2 Cond. Rep. 336. 38. If the calls of an entry do not fully describe the land, but furnish enough to enable the court to complete the location, by the application of certain principles, they will complete it. Ibid. 39. If a location have certain material calls sufficient to support it, other calls less material and incompatible with the essential calls of the entry, may be discarded. Ibid. 40. When a given quantity of land is to be laid off on a given base, it shall be included within four lines forming a square, as nearly as may be, unless that form be repugnant to the entry. The rectangular figure is to be preserved, if possible, where a line is to be supplied by construction. Ibid. 41. If an entry be made by the assignee of a pre-emption right, it will be good, although the name of the assignor be not mentioned in the entry, if the entry refer to the warrant; and if it mention an improvement, provided the place be described with sufficient certainty in other respects. Simms v. Guthrie et al., 9 Cranch, 19; 3 Cond. Rep. 237. 42. The act of North Carolina of 1703, ch. 2, opening the land-office, did not prohibit a person from making several different entries, nor from uniting several entries in one survey and patent; and such union of several entries is allowed by the act of 1784, ch. 19. Polk's Lessee v. Wendal et al., 9 Cranch, 87; 3 Cond. Rep. 286. 43. In Kentucky, the courts of law will not look beyond the patent, but courts of equity will; and will give validity to the elder entry against the elder patent. Finley v. Williams et al., 9 Cranch, 164; 3 Cond. Rep. 331. 44. An entry calling for "Big Blue Lick," will not support a patent for land at the "Upper Blue Lick the "Lower Blue Lick" being generally called the "Big Blue Lick;" although there may be other calls in the entry which seem to designate the "Upper Blue Lick" as the place intended. Ibid. 45. The law of Kentucky requires, in the location of warrants for land, some general description, designating the place where the particular object is to be found, and a description of the particular object itself. Matson v. Hord, 1 Wheat. 130; 3 Cond. Rep. 517. 46. The general description must be such as will enable a person, intending to locate the adjacent residuum, and using reasonable care and diligence, to find the object mentioned in that particular place, and avoid the land already located. If the description will fit another place better or equally well, it is defective. Ibid. 47. It is essential, in Kentucky, to the validity of an entry, that the land intended to be appropriated, should be so described as to give notice of the appropriation to subsequent locators. Johnson v. Pannel's Heirs, 2 Wheat. 206; 4 Cond. Rep. 84. 48. In taking the distance from one point to another on a large river, the measurement is to be with its meanders, and not in a direct line. In ascertaining a place to be found by its distance from another place, the vague words "about," "nearly," and the like, are to be rejected, if there are no other words rendering it necessary to retain them; and the distance mentioned is to be taken positively. Ibid. 49. Entries made in a wilderness, most generally refer to some prominent and notorious natural object, which may direct the attention to the neighbourhood in which the land is placed, and then to some particular object, exactly describing it; the first of these is called the general or descriptive call, and the last, the particular or locative call of the entry. Reasonable certainty is required in both. If the descriptive call will not inform a subsequent locator in what neighbourhood he is to search for the land, the entry is defective; unless the particular object is one of sufficient notoriety. If after having reached the neighbourhood, the locative object cannot be found within the limits of the descriptive calls, the entry is also defective. A single call may, at the same time, be of such a nature, as, for example, a spring of general notoriety, as to constitute within itself both a call of description and location; but if this call be accompanied with another, such as a marked tree at the spring, it seems to be required that both should be satisfied. The call for an unmarked tree of a kind which is common in the neighbourhood of a place sufficiently described by the other parts of the entry, to be fixed with certainty, may be considered as an immaterial call. Therefore, where the following entry was made, “D. P. enters two thousand acres on a treasury warrant on the Ohio, about twelve miles below the mouth of Licking, beginning at a hickory and sugar tree on the river bank, running up the river from thence about one thousand and sixty poles, thence at right angles to the same, and back for quantity:" it was held that the call for the sugar tree might be declared immaterial, Kentucky. and the location be sustained on the other calls. | opinion of the words, as they are found in the Ibid. instrument itself, and not according to the opinion of witnesses. Ibid. 50. The act of Kentucky of 1797, taken in connection with preceding acts, declares that entries for land shall become void if not surveyed before the 1st day of October, 1798; with a proviso, allowing to infants and femes covert three years after their respective disabilities are removed, to complete surveys on their entries. Held, that if one or more of the joint owners be under the disability of infancy or coverture, it brings the entry within the saving of the proviso as to all the other owners. Shipp et al. v. Miller, 2 Wheat. 316; 4 Cond. Rep. 132. 51. A call for spring branch generally, or for a spring branch to include a marked tree at the head of such spring, is not a sufficiently specific locative call; and where further certainty is attempted to be given by a call for course and distance, and the course is not exact, and the distance called for is a mile and a half from the place where the object is to be found, the entry is void for uncertainty. Ibid. 56. The following entry, "T. T. enters tea thousand acres of land on part of a treasury warrant, No. 9739, to be laid off in one or more surveys, lying between Stoner's Fork and Kingston's Fork, beginning about six or seven miles directly north-east of Harrod's Lick, at two white oak saplings from one root, with the letter K. marked on each of them, standing at the forks of a west branch of Kingston's Fork, on the east side of the branch, then running a line from said ash saplings, south forty-five degrees east, sixteen hundred poles, then extending from each end of this line, north forty-five degrees east, down the branch, until a line, nearly parallel to the beginning line, shall include the quantity of vacant land, exclusive of prior claims," is not a valid entry; there being no proof that the "two white oak saplings" had acquired sufficient notoriety to constitute a valid call for the beginning of an entry, without far 52. An entry in the terms following, is invalid ther aid than is afforded by the information tha for uncertainty and want of precision: "W. and the land lies between these forks. M'Dowell v. H. enter six thousand seven hundred and four- Peyton et al., 10 Wheat. 454; 6 Cond. Rep. 184. teen acres of land on a treasury warrant, No. 57. Under the decisions in Kentucky, the de10,692 to join T.'s and M.'s entry of one thou- scription of the land to be acquired, which every sand acres that is laid on the adjoining ridge be-entry must contain, may be divided into general tween Spencer's creek and Kingston's fork of and special. The general description must be Licking on the east, and to run east and sonth such as to bring the holder of a warrant, to be for quantity." The entry referred to in the fore-located into the neighbourhood of the land going was as follows: "9th December, 1782, already appropriated, and such as to enable him T. and M. enter one thousand acres on a trea- to find that land with reasonable diligence; the sury warrant, No. 4222 on the dividing ridge special description, or in the technical language between Kingston's fork of Licking and Spen- of the country, the locative calls of the entry, cer's creek, a west branch of said fork, to in- must be such, as to ascertain and identify the clude a large pond in the centre of a square, land. lbid. and a white oak tree marked X.; also, an elm tree marked VS. near the side of the pond." Perkins et al. v. Ramsay et al., 5 Wheat. 269; 4 Cond. Rep. 642. 53. To support an entry, the party claiming under it must show that the objects called for in it are so sufficiently described or notorious, that others, by using reasonable diligence, can readily find them. Watts v. Lindsay's Heirs, 7 Wheat. 158; 5 Cond. Rep. 261. 54. Under the following entry, "H. R. enters two thousand acres in Kentucky, by virtue of a warrant for military services performed by him in the last war, in the fork of the first fork of Licking, running up each fork for quantity:" it appeared in evidence, that, at the first fork of Licking, the one fork was known and generally distinguished by the name of the South Fork, and the other by the name of the Main Licking, or the Blue Lick Fork; and that some miles above this place, the South Fork again forked. Held, that the entry could not be satisfied with lands lying in the first fork. Meredith et al. v. Picket et al., 9 Wheat. 573; 5 Cond. Rep. 686. 58. The following entry is invalid, for want of certainty and precision. "January 27th, 1783, I. C. L. enters twenty thousand acres of land, on twenty treasury warrants, No. 8859, &c., beginning at the mouth of a creek falling into the main fork of Licking, on the north side, below some cedar cliffs, and about thirty-five miles above the upper Blue Licks, and running from said beginning up the north side of Licking, and bounding with the same, as far as will amount to ten miles, when reduced to a straight line, thence extending from each end of said reduced line a northerly course, at right angles, for quantity." Littlepage v. Fowler et al., 11 Wheat. 215; 6 Cond. Rep. 280. 59. The rule of law in Kentucky is, that objects called for, to designate the land appropriated, should be specific; and if not notorious in themselves, that they should be so indicated, with reference to those which are notorious, as to enable a subsequent locator to discover and identify them, by using ordinary diligence. Ibid, 60. An entry calling for land to lie on the east side of Slate creek, a south-west branch of the 55. In such case, the entry cannot be ex- main fork of Licking, "beginning where a buffalo plained, and the survey supported by oral testi-road crosseth said creek, at the mouth of a branch mony. It is the proper province of testimony to show the notoriety and names of places; but the court must construe the words of an entry, or of any other title paper, according to their emptying into said creek, at the north-east side, it being the place of beginning for S. M.'s survey for twenty thousand acres," is defective in certainty and precision; and its defects are not Kentucky. remedied by a reference to S. M.'s entry for "twenty thousand acres lying on the west side of Slate creek, south-west branch of the main fork of Licking creek, beginning where the buffalo road crosses Slate creek, at the mouth of a branch emptying in on the east side thereof, there are several cabins, &c., to include a large quantity of fallen timber, &c." Taylor's Devisee v. Owing et al., 11 Wheat. 226; 6 Cond. Rep. 286. 61. The equity of a prior location extends to the surplus land surveyed, as well as to the quantity mentioned in the warrant. Taylor and Quarles v. Brown, 5 Cranch, 234; 2 Cond. Rep. 235. 62. An error in description is not fatal in an entry, if it does not mislead a subsequent locator; as where an entry was made, calling, among other things, for Chapman Aston's land on the west side, and it ought to have been Austin's; and all the other calls are correct. Shipp et al. v. Miller's Heirs, 2 Wheat. 316; 4 Cond. Rep. 132. 63. It is a general rule, that when all the calls of an entry cannot be complied with, because some are vague or repugnant, the latter may be rejected or controlled by other material calls, which are consistent and certain. Course and distance yield to visible, known, and definite objects, but they do not yield unless to calls more material and equally certain. Ibid. 64. It is a settled rule, that where no other figure is called for in an entry, it is to be surveyed in a square coincident with the cardinal points, and large enough to contain the given quantity; and the point of beginning is deemed to be the middle of the base line of such square. Ibid. 65. Where an entry called to run about a north course for quantity, the word "about" is to be rejected, and the land is to run a due north course, having a moiety of the land on each side of a due north line, drawn through the middle of the base. Ibid. 66. An entry was made in the land-office of Kentucky, of one thousand acres, in the name of "John Floyd's heirs," without naming the persons who were the heirs. Upon an objection to the validity of the entry, the court said:That substituting a legal description, which cannot be misunderstood, for the more definite description, by the proper names of the persons who are the heirs, was not of such substantial importance as to vitiate the transaction. Hunt v. Wickliffe, 2 Peters, 208. 67. An entry was made "so as to join the 208. 68. The rules, which are settled in Kentucky, would require that this entry, had the restriction respecting the military surveys been omitted, should be surveyed equally on the north-east 69. The claim of "a locator" is peculiar to Kentucky; and has been universally understood by the people of the country to signify that compensation of a portion of the land located, agreed to be given by the owner of the warrant, to the locator of it for his services. Hollingsworth v. Barbour, 4 Peters, 466. 70. Jenkin Phillips, on the 18th of May, 1780, "enters one thousand acres on the south-west side of Licking creek, on a branch called Bucklick creek, on the lower side of said creek, beginning at the mouth of the branch, and running up the branch for quantity, including three cabins." A survey was made on this entry the 20th November, 1795, taking Bucklick branch, reduced to a straight line, as its base, and laying off the quantity in a rectangle on the north-west of Bucklick. A patent was granted to Phillips, on this survey, on the 26th June, 1796. This entry is sufficiently descriptive, according to the well established principles of this court and the courts of Kentucky; and gave Phillips the prior equity to the land, which has been duly followed up and consummated by a grant within the time required by the laws of Virginia and Kentucky, without any laches which can impair it. The proper survey, under this entry, was to make the line following the general course of Bucklick the centre instead of the base line of the survey; and to lay off an equal quantity of each side in a rectangular form; according to the rule established by the court of appeals in Kentucky, and by the supreme court. Peyton v. Stith et al., 5 Peters, 485. 71. Peyton claimed the land under an entry made by Francis Peyton, and a survey on the 9th October, 1794, and a patent on the 24th December, 1785; so that the case was that of a claim of the prior against the elder grant, which it is admitted carried the legal title. Ibid. 72. Stith took possession as tenant of the heirs of Peyton, under an agreement for one year, at twenty dollars per year. Possession was afterwards demanded of him on behalf of the lessors, which he refused to deliver; and a warrant for forcible entry and detainer was, on their complaint, issued against him, according to the law of Kentucky, and on an inquisition he was found guilty; but on a traverse of the inquisition he was acquitted, and an ejectment was brought against him by the lessors. Eight days after the finding of the inquisition, Stith purchased the land from Phillips. This is the case of an unsuccessful attempt by a landlord to recover possession from an obstinate tenant, whose refusal Kentucky.-Ohio. could not destroy the tenure by which he remained on the premises, or impair any of the relations which the law established between them. The judgment on the acquittal concluded nothing but the facts necessary to sustain the prosecution, and which could be legally at issue: title could not be set up as a defence: Stith could not avail himself of the purchase from Phillips. A judgment for either party left their rights of property wholly unaffected, except as to the mere possession: the acquittal could only disaffirm the forcible entry, as nothing else was at issue the tenancy was not determined: Peyton was not ousted: and the possession did not become less the possession of the landlord by any legal consequences as resulting from the acquittal. Ibid. 73. From the time of the purchase by Stith, from Phillips, although it became adverse for the specified purposes, it remained fiduciary for all others. Ibid. 74. An entry of land in one county, which is afterwards divided, does not, after the division, authorize a survey in the original county, if the land falls within the new county. Boardman et al. v. The Lessees of Read and Ford, 6 Peters, 328. 75. A survey itself, which had not acquired notoriety, is not a good call for an entry. But when the survey has been made conformable to the entry, and the entry can be sustained, the call for the survey may support an entry. The boundaries of the survey must be shown. This principle is fully settled by the decisions of the courts of the state of Kentucky. Holmes et al. v. Trout, 7 Peters, 171. 76. It has been a settled principle in Kentucky, that surplus land does not vitiate an entry, and a survey is held valid if made conformably to such an entry. Ibid. 77. The principle is well settled, that a junior entry shall limit the survey of a prior entry to its calls. This rule is reasonable and just. Ibid. 78. Until an entry be surveyed, a subsequent location must be governed by its calls; and this is the reason why it is essential that every entry shall describe with precision the land designed to be appropriated by it. If the land adjoining the entry should be covered by a subsequent location, it would be most unjust to sanction a survey of the prior entry beyond its calls, and so as to include a part of the junior entry. Ibid. 79. The locator may survey his entry in one or more surveys, or he may, at pleasure, withdraw a part of his entry. When a part of a warrant is withdrawn, the rules of the landoffice require a memorandum on the margin of the record of the original entry, showing what part of it is withdrawn. Ibid. 80. In giving a construction to an entry, the intention of the locator is to be chiefly regarded, the same as the intention of the parties in giving a construction. If a call be impracticable, it is rejected as surplusage, on the ground that it was made through mistake; but if a call be made for a natural or artificial object, it shall always control mere course and distance. Where there is no object called for to control a rectangular figure, that form shall be given to a survey. Ibid. 81. The following entry of lands in Kentucky is invalid: "May 10th, 1780, Reuben Garnett enters one thousand one hundred and sixty-four and two-thirds acres, upon a treasury warrant, on the seventh big fork, about thirty miles below Bryant's station, that comes in on the north side of North Elkhorn, near the mouth of said creek, and running upon both sides thereof for quantity." It is a well-settled principle, that if the essential call of an entry be uncertain as to the land covered by the warrant, and there are no other calls which control the special call, the entry cannot be sustained. In the case under consideration, there are no calls in the entry which control the call for the "seventh big fork;" and that this call would better suit a location at the mouth of M'Connell's than at Lecompt's run, has been shown by the facts in the case. This uncertainty is fatal to the complainant's entry. Garnett et al. v. Jenkins et al., 8 Peters, 75. 82. To constitute a valid entry, the objects called for must be known to the public at the time it was made; and the calls must be so certain as to enable the holder of a warrant to locate the vacant land adjoining. It is not neces-. sary that all the objects called for shall be known to the public; but some one or more leading calls must be thus known; so that an inquirer, with reasonable diligence, may find the land covered by the warrant. Ibid. 83. If an object called for in an entry is well known by two names, so that it can be found by a call for either, such a call will support the entry. Ibid. 84. Some of the witnesses say, that being at Bryant's station, with the calls of Garnett's entry to direct them, they could have found his land on Lecompt's run, without difficulty. If this were correct, the entry must be sustained, for it is the test by which a valid entry is known. Ibid. 85. If the complainants clearly sustain their entry by proof, their equity is made out, and they may well ask the aid of a court of chancery to put them in possession of their rights. But, if their equity be doubtful, if the scale be nearly balanced, if it do not preponderate in favour of the complainants, they must fail. Ibid. 86. The legislature of Kentucky passed an act by which a defective entry on land was made perfect. The agent of the holder of the defective title, after having become acquainted with its defect during his agency, took out a patent for the land in his own name. The court held, that the patent was void against the act of the legislature; and the holder of the patent was decreed to convey his legal title to the claimants under the law of Kentucky. Ringo v. Binns, 10 Peters, 269. 6. Ohio. 87. An entry for one thousand acres of land in Ohio, on Deer creek, "beginning where the upper line of R. M.'s entry crosses the creek, running with M.'s line on each side of the creek, four hundred poles, thence up the creek, four hundred poles, in a direct line, thence from each |