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HUNT V. WICKLIFFE, 27 U. S. 201 (1829)

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U.S. Supreme Court

Hunt v. Wickliffe, 27 U.S. 2 Pet. 201 201 (1829)

Hunt v. Wickliffe

27 U.S. (2 Pet.) 201


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.

An entry was made "so as to join the settlements on the north east and south sides thereof, so as not to run into the old military surveys which are legal." The old military surveys formed together a parallelogram, and adjoined the lands intended to be described by the entry. It was objected that the limitation on the entry "so as not to run-into the old; military surveys which, are legal" rendered the whole entry so uncertain as to make it void.

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 and south side of the settlement, the whole land to be included by rectangular lines. The old military survey must therefore be

so contiguous to the settlement as to stop one or two of those lines. A subsequent locator knows where to look for them, and the testimony in the cause informs us that he would encounter no difficulty in finding them.

"We consider the last word, 'which are legal,' merely as an affirmance that they are so, not as leaving it doubtful, and consequently that they make no change in the entry."

? It is well settled, both in the court of Kentucky and in this Court that a possession which will bar an ejectment is also a bar in equity.

? Each of the parties held in possession distinct parts of the land in controversy. In this state of things, it is well settled that the party having the better right is in constructive possession of all the land not occupied in fact by his adversary.

? The law of Kentucky authorizes its courts of chancery to make decrees against absent defendants on the publication of an order for two months successively in some paper authorized to make the publication and on fixing it up at certain public places prescribed by the act. This publication is considered as a constructive service of the process. The Supreme Court of Kentucky has decided that the publication must be continued for two calendar months.

As the plaintiff's in the circuit court claimed under a conveyance made in pursuance of a decree of a court of competent jurisdiction, the bill ought not to have been dismissed for want of parties. The circuit court ought to have given leave to make new parties, and on their failing to bring the proper parties before the court, the dismission should have been without prejudice.

This was an appeal from the Circuit Court of Kentucky, in which court the appellants had filed a bill against the appellee, claiming from him a conveyance of the legal title chanroblesvirtualawlibrary

Page 27 U. S. 202

to certain lands in the State of Kentucky to which the appellee had the legal title, but by the appellants it was alleged, that they had a prior equitable title derived under certain entries made in the land office of that state. The bill was dismissed by the circuit without costs, and from the decree of dismissal an appeal was entered to this Court.

The defendant, Robert Wickliffe, claimed the land under patents to John Craig for 2,000 acres, dated 2 December, 1785, and to A. Fox and John Craig for 2,000 acres dated on the same day. He also asserted a possession, protected by the statute of limitations. The title under these patents interferes with the entries under which the appellants claimed, and the appellants in the circuit court sought to obtain a conveyance of all the interference, and also other portions of the grants to Floyd not included within the boundaries of Craig's, and Craig and Fox's patents.

The entries under which the heirs of John Floyd and those who hold under them claim the land were as follows:

"1779, October 29. John Floyd this day appeared and claimed a right to a settlement and preemption to a tract of land lying on Four Mile Creek, eight miles northwest from Boonsboro, including a plantation claimed by the said Floyd called Woodstock, raising corn on the premises -- 1776, satisfactory proof being made to the court that said Floyd has a right to a settlement of 400 acres, including said improvement, and a preemption of 1,000 acres adjoining, and that a certificate issue,"


Under this certificate for a settlement and preemption, the entries were made.

"November 3, 1779. John Floyd enters 400 acres of land by virtue of a certificate, . . . on Four Mile Creek, about eight miles northwest from Boonsboro, including a plantation called Woodstock."

"1780, April 28. John Floyd, assignee of James Taylor, assignee of George Muse, enters 800 acres as assignee of Lance, 200 acres, upon military warrants, between the lines of David Robinson and John Carter, Andrew Boyd, Thomas Barns and Jonathan Martin on Four Mile Creek."

This entry appears to have been located in two surveys, chanroblesvirtualawlibrary

Page 27 U. S. 203

and is designated on the plat 245 acres and 240 acres. The latter interferes with the land held by the appellee.

"April 19, 1778. John Floyd, assignee, enters 1,600 acres upon a military warrant on Boon's Creek adjoining David Robinson's west line, extending along said line, and westwardly for quantity. A part of this appears to be surveyed in a survey of 246 acres, as represented on the plat."

"May 31, 1783. John Floyd's heirs enter 1,000 acres on a preemption warrant No. 1054, joining the settlement at Woodstock on the north east and north sides thereof, so as not to run into the old military surveys which are legal."

These surveys all adjoin, and were patented in January, 1789, to Mourning, George, John Floyd, and Jane Breckenridge, wife of Alexander Breckenridge, formerly Jane Floyd, widow of said John Floyd.

The appellants had, under a decree of the Fayette Circuit Court of Kentucky, obtained a conveyance from the patentee of 694 acres, part of the land embraced in these surveys.

The appellee had made no effort to establish the entries under which he claimed, relying upon his elder legal title, and an asserted possession. chanroblesvirtualawlibrary

Page 27 U. S. 207

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