US SUPREME COURT DECISIONS

The first survey, under a military land warrant in Virginia, gives the prior equity. The survey is the act of appropriation.

The certificate of survey is sufficient evidence that the warrant was in the hands of the surveyors.

That clause of the land law of Virginia which requires every survey to be recorded within two months after it is made is merely directory to the surveyor, and his neglect to record it does not invalidate the survey.

It is not necessary that the deputy surveyor who made the survey should make out the plat and certify it. It may be done from his notes by the principal surveyor.

A subsequent locator of land in Virginia, without notice of the prior location, cannot protect himself by obtaining the elder patent. A survey is not void because it includes more land than was directed to be surveyed by the warrant.

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.

The locator of a warrant undertakes himself 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 as a purchaser without notice.

The equity of the prior locator extends to the surplus land surveyed, as well as to the quantity mentioned in the warrant.

Error to the District Court for the Kentucky District in a suit in chancery wherein Taylor and Quarles were complainants against Brown. The bill of the complainants was dismissed by the court below.

Both parties claimed under military warrants upon the King's proclamation for services rendered prior to the year 1763.

The complainants claimed under a warrant in favor of Angus McDonald for 2,000 acres issued chanrobles.com-red

Page 9 U. S. 235

5 February, 1774. The defendant claimed under a warrant in favor of Jethro Sumner for 2,000 acres, issued 3 December, 1773. McDonald's survey was made on 7 July, 1774. Sumner's was made on 24 June, 1775, and he obtained a patent on 5 January, 1780. The patent upon McDonald's survey, was not issued until 10 January, 1792, so that the complainants had a younger warrant and patent, but the elder survey. The defendant had the elder warrant and patent but the younger survey. McDonald's survey included 3,025 acres; Sumner's included, 2,576 acres. The quantity covered by both surveys was 1,080 acres, of which Taylor claimed 660 and Quarles 200; it did not appear who claimed the other 220 acres included in the interference.

McDonald's survey was made by Hancock Taylor, an assistant surveyor of Fincastle County, where the lands lay, who, before his return to the office, was killed by the Indians on the last of July, 1774, but his field books and papers were preserved by his attendants and delivered to the principal surveyor of the county in September, 1774, who made out a plat therefrom.

The complainants' bill charges, that the survey of Sumner was fraudulently made, so as to interfere with McDonald's. The answer denies the fraud, and there was no evidence of fraud or even of notice on the part of Sumner. chanrobles.com-red

Page 9 U. S. 241