US SUPREME COURT DECISIONS

The land law of Virginia, which gives a right of preemption to those who had marked and improved land before the year 1778, refers that right to the time when the improvement was made and to the time of the passage of the act, and not to the time when the claim for such preemption was made before the court of commissioners.

If an entry be made by the assignee of a preemption right, it will be good although the name of the assignor be not mentioned in the entry if the entry refers to the warrant and if it mentions an improvement, provided the place be described with sufficient certainty in other respects.

A bill in equity to enjoin a judgment at law is not to be considered as an original bill, and therefore it is not necessary in a court of limited jurisdiction to make other parties if the introduction of those parties should create a doubt as to the jurisdiction of the court.

A complainant in equity cannot obtain a decree for more than he has asked in his bill.

The facts of the case, as stated by THE CHIEF JUSTICE in delivering the opinion of the Court, were as follow:

Charles Simms, the plaintiff in error, having obtained a judgment in ejectment for certain lands lying in Kentucky, in possession of the defendants for which the said Simms held a patent prior to that under which the defendants claimed, a bill of injunction was filed by them praying that he might be decreed to convey to them so much of the land in their possession as was included within his patent.

It appeared in evidence that in the year 1776, a company of whom John Ash was one marked and improved several parcels of land lying on the waters of Salt River. John Ash made an improvement on the waters of the Town Fork of Salt River, soon after which William McCollom, another member of the same company, made an improvement at a spring on the same stream about seven hundred yards below him. Ash complained that McCollom had encroached on his rights by approaching too near him, upon which they agreed to decide by lot who should be entitled to both improvements. Fortune determined in favor of Ash, and McCollom relinquished his rights and improved elsewhere. Ash afterwards amended both improvements and planted peach stones at that which was made by himself.

In April, 1780, before the court of commissioners appointed in conformity with the act generally denominated the previous title law, John Ash obtained a certificate in the following words:

"John Ash, Sr., claimed a preemption of 1,000 acres of land in the District of Kentucky on account of marking and improving the same in the year 1776, lying on the waters of the

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Town Fork of Salt River about two miles nearly east from Joseph Cox's land, to include his improvement. Satisfactory proof being made to the court, it is of opinion that the said Ash has a right to a preemption of 1,000 acres of land, to include the above location, and that a certificate issue accordingly."

This certificate was assigned to Terrell and Hawkins, who, in April, 1781, made the following entry thereon in the surveyor's office of the county in which the lands lie:

"Terrell and Hawkins entered 1,000 acres, No. 1226, on the waters of the Town Fork of Salt River, about two miles nearly east from Joseph Cox's land, to include his improvement."

This entry was surveyed and patented, and the defendants claim under it. The date of this patent was on 6 March, 1786.

The entry of Charles Simms was made on 13 April, 1780, his survey on the 25th of the same month, and his patent issued on 19 April, 1783.

The claim under an improvement being of superior dignity to that of Charles Simms, his title must yield to that of the defendants in error if theirs be free from objection.

The land law of Virginia, under which all parties claim, requires that locations shall be made so specially and precisely that other persons may be enabled with certainty to locate the adjacent residuum.

The situation of Kentucky, covered with conflicting titles to land, has made it necessary that this requisition of the law should be enforced with some degree of rigor, while the ignorance of early locators, the dangers to which they were exposed, and the difficulty of describing with absolute precision lands which were held by a very slight improvement made on a single spot, and which could not be immediately surveyed, induced the courts of that country, for the purpose of preserving entries as far as was consistent with law, to frame certain general rules of very extensive application to cases which occurred. One was that the designation of any particular spot of general notoriety, or such a description of it in relation to some place of general notoriety chanrobles.com-red

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as would clearly point it out to subsequent locators, would give sufficient notice of the place intended to be appropriated, and that a failure to describe the external figure of the land should be supplied by placing the improvement in the center and drawing round it a square with the lines to the cardinal points, which should comprehend the quantity claimed by the location.

The court below was of opinion that there was sufficient certainty in the certificate of John Ash, Sr., and in the entry afterwards made with the surveyor by Terrell and Hawkins; that the improvement intended to be claimed by Ash was that which he won of McCollom, and that the land should be surveyed in a square form with the lines to the cardinal points, including the improvement won of McCollom in the center. A survey having been made in conformity with this interlocutory decree, the court ordered the defendant below to convey severally to the plaintiffs in that court so much of the land claimed by them as was included in his patent. To this decree Charles Simms has sued out a writ of error. chanrobles.com-red

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