US SUPREME COURT DECISIONS

If a person who has obtained a survey upon a military land warrant under the Commonwealth of Virginia for two thousand acres sell and transfer, for a valuable consideration, his right to the survey and assign the plat and certificate to the purchaser, whereupon he obtains a patent for the land in his own name, and if, upon a resurvey it appear that the grant conveys two thousand seven hundred acres, the vendor cannot in equity support a claim for the surplus against the vendee.

When an assignment is made of a plat and certificate of survey, the purchaser takes it subject to the risk of its containing a less quantity than is expressed on its face, and should it contain more, he is entitled to it.

This case, as stated by TODD, J., in delivering the opinion of the Court was as follows:

This suit was instituted on the chancery side of the Circuit Court of the United States for the Kentucky District by the complainants, now appellants as the heirs chanrobles.com-red

Page 12 U. S. 372

and legal representatives of Mary Vowles, formerly Mary Frazer.

The bill alleges that in the year 1774, a survey was made for Mary Frazer as heir at law and only daughter of George Frazer, deceased, by virtue of the governor's warrant and agreeable to the royal proclamation of 1763, for 2,000 acres of land in Fincastle County on Elkhorn Creek, the waters of Ohio River. That according to usual and customary allowance made in this as well as other military surveys at that time, a considerable quantity of land over and above 2,000 acres is contained within the actual boundaries. That in the year 1778, whilst the said Mary was a minor, Michael Robinson, as guardian of the said Mary and who had intermarried with he mother, made a contract with the defendants Lewis, Joseph, and Benjamin Craig for the sale of the said 2,000 acres of land surveyed as aforesaid for the said Mary at the price of 30s. per acre, amounting to �3,000, which was paid in the depreciated paper currency of Virginia and was of little or no value. That the said Mary was induced to affix her signature to an assignment of the said plat and certificate of survey, which was postdated so as to bear the appearance of its being executed when she was of full age, in consequence of which Lewis Craig obtained a patent for the said land in his own name, and has since conveyed a part thereof to the said Joseph and Benjamin, and under whom the other defendants derive their titles. The prayer of the bill is to vacate the contract and to decree a reconveyance of the land and for general relief.

The answers of the defendants Lewis and Joseph Craig admit the making of the survey, and that it contains a considerable quantity of land within the boundaries more than 2,000 acres.

They admit the contract with Michael Robinson for the purchase of the said survey, but positively deny that it was made in the year 1778, and aver that it was made in 1779. They deny that the contract was for 2,000 acres of land at 30s. per acre, but was for the whole survey at the price of �3,000. They also positively deny that the assignment on the plat and certificate of chanrobles.com-red

Page 12 U. S. 373

survey was postdated or that any fraud or misrepresentation was practiced or used relative to the transaction.

The answers of the other defendants are deemed immaterial to the investigation of the questions arising in this case.

The cause was heard in the circuit court upon the bill, answers, depositions and other proofs. The court decreed the bill to be dismissed with costs, from which decree an appeal was taken to this Court. chanrobles.com-red

Page 12 U. S. 379