55*] *This cause was argued at last term by Daveiss and C. Lee, for the plaintiff in error, and Jones and Mason, for defendant 56*] *Daveiss, for plaintiff in error.

As the counsel for the defendant in error have objected to our right of appeal in this cause, I shall at first confine myself to that point; because, if the court should agree 57*] *with them in opinion on that question, much time will be saved and much useless discussion prevented. It is contended that by the laws of Virginia, upon which the title to the land in dispute depends, and which give the 58*] remedy *by caveat, no appeal or writ of error will lie. The land law of Virginia, as it is called, viz., the act of May, 1779, (Chancery Revision of the Laws of Virginia p. 94.) entitled, "An act for establishing a land office, and ascertaining the terms and manner of granting waste and unappropriated lands," | which directs the manner of proceeding upon caveats, enacts, that "the court" (that is, the general court) "shall proceed to determine the right of the cause in a summary way, without pleadings in writing; impaneling and swearing a jury for the finding of such facts as are material to the cause, and are not agreed by the parties; and shall thereupon give judgment, on which no appeal or writ of error shall be allowed."

This law, it is said, was in force at the time of the separation of Kentucky from Virginia; and that by the act of assembly of Virginia of December, 1789, Rev. Code, p. 56, s. 7, which prescribes the terms upon which Kentucky might become an independent state after the 1st of November, 1791, it is provided that all private rights and interests of lands within the said district, derived from the laws of Virginia prior to such separation, shall remain valid and secure, under the laws of the proposed state, "and shall be determined by the laws now existing in this state."

59*] *But we shall contend,

1st. That the jurisdiction and powers of this court do not depend upon the laws of Virginia, but upon the constitution of the United States, and the acts of congress.

this part of his duty that the word truly refers. Again, he is to examine the legal proportion of the plat. In these two cases he acts judicially; and it is right he should be vested with such a power; because, as he acts generally by deputy, it enables him to correct the work of his deputy, and also to prevent improper combinations between the employer and deputy.

"The second argument alluded to is this; that neither the entry book, or book for entering surveys, are record books; and that legislative interference was necessary to constitute them such. Ch. Rev. 96, 220. They are books directed to be procured by law. The surveyor is a sworn officer, commissioned agreeably to law. Copies of entries and copies of surveys, attested by him, are good evidence in a court of justice. I therefore consider every entry, and every survey, entered in these books as being of record, and equally valid with those which are usually styled records.

'Mason, a purchaser of the commonwealth, having surveyed contrary to his entry, returns the survey to the surveyor's office, where it is examined and recorded before the claim of any other person appears to the land. Can the commonwealth destroy Mason's survey and refuse her grant to the land?

"The law has pointed out no mode by which the commonwealth can set aside Mason's survey for her own benefit neither was such a provision necessary; because he had paid the purchase money,

2d. That the laws of particular states lose their force when they contravene the acts of congress.

3d. That by the law of Virginia a right of appeal is allowed upon a caveat.

1st. By the constitution of the United States, art. 3, s. 2, "the judicial power shall extend" "to controversies between citizens of different states," and in all cases, except where a public minister, or a state, shall be a party, "the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make." Congress have not excepted the present case; it therefore follows, that by the constitution of the United States, this court has appellate jurisdiction of the cause.

2d. By the constitution of the United States, art. 6, "this constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land; and the judges, in every state, shall be bound thereby, "any thing in the constitution or laws of any state to the contrary notwithstanding." By the 10th section of the judiciary act of 1789, the district court of Kentucky has jurisdiction of all cases by that act made originally cognizable by the circuit courts, and it is enacted, that "writs of error and appeals shall lie, from decisions therein, to the Supreme Court in the same causes, as from a circuit court to the Supreme Court, and under the same regulations. This cause having been removed, by the defendant Mason from the state court, into the district court of the United States for the district of Kentucky, under the 12th section of the judiciary act of 1789, is to "proceed in the same manner as if it had been brought there by original process." the 22d section, "final judgments and decrees in civil actions in a circuit court, brought there by original process, or removed there from courts of the several states," *where the matter [*60 in dispute exceeds 2,000 dollars, may be re-examined and reversed or affirmed in the Supreme Court.

And by

A cause may be removed into a circuit court from a supreme court of a state, from which, for so many acres of unappropriated land. It was vacant; and so soon as his survey was recorded, his warrant was carried into full execution, and the entry of 8,300 acres became vacant, and reverted to the commonwealth, there being no warrant in the surveyor's office to cover it, the warrant being returned to the owner with the plat and certificate of survey. Or, being recorded, it is the same thing in effect, as it can never be again acted upon, being executed by actual survey. Ch. Rev. s. 3, p. 95, 96. Any practice to the contrary I deem illegal, and contrary to law.

'From this statement of facts I determine Mason's right to be good against the commonwealth. 'As the commonwealth can take no advantage of Mason's surveying contrary to entry, shall Wilson, by his subsequent special entry, when he had full and perfect knowledge of the place where Mason's survey was made, and of its being recorded?

"There are only two ways of destroying a man's right to a tract of land. By caveat after survey and before the title is complete; or, by a suit in chancery after the grant has issued.

'In the present case Wilson has chosen to enter a caveat to prevent the emanation of a grant to Mason: alleging that Mason has surveyed contrary to entry, and that it is vague, for which reasons he claims the land by virtue of a special entry.

"There are four causes stated in the land law which authorize the entering of a caveat. 1. Fail

Mason, for defendant in error.

It is not denied that the acts of congress are, in many cases, paramount to the laws of the individual states; but even a general position of that kind will not decide the present question. This action was brought in a state court, under a state law, before congress legislated upon the subject, and even before congress, or the constitution of the United States, had an existence. Can such an action be affected by subsequent acts of Congress?

The law by which Kentucky was erected into a separate state passed the Virginia legislature in December, 1789. This is an unalterable law, 61*] embracing the citizens of both states. It is a compact by which they mutually agreed that the rules of property should not be altered. If we admit that by the act of 1792, appeals were allowed in the case of caveats, the admission proves nothing in the present question, because the law of 1789 is an unalterable law, and confined to the then existing state of things. It was not in the power of one of the contracting parties to change the terms of the compact. But it is said that there was a right of appeal at the time of that compact. Let us examine the laws relative to this subject. The first act is that of 1779, mentioned by the opposite counsel, which declares that caveats shall be tried in the general court, and that there shall be no appeal or writ of error. The next is the act of 1788, which transfers the jurisdiction of the general court to district courts, and declares that "they shall have the same jurisdiction concerning" "caveats" "as the general court hereto fore had by law." But the jurisdiction which the general court heretofore had by law was an exclusive and final jurisdiction, from which there could be no appeal. If, then, the district courts were to possess the same jurisdiction, it must be an exclusive and a final jurisdiction. But it is said that by the same act of 1788, an appeal in all cases from the district court was a matter of right. This must evidently mean in all cases where a right of appeal before existed from the general court to the court of appeals; but cannot be understood to give an appeal in a case where it had been expressly excluded by an existing law. The intention of the legislature was to put the district court, as to all cases arising within the district, exactly in the place of the general court, and to give them the same jurisdiction, to be exercised in the same manner, with the same limitations, and liable to appeals only in the same cases. But the act of 1788, erecting district courts on the eastern waters, did not affect Kentucky. The legislature had before, by an act passed in 1782, erected a court on the western waters, called the supreme court for the district of Kentucky, to which it had transferred all the powers and jurisdiction theretofore exercised by the general court of Virginia; and with the rest, the power to try caveats and to give judgment thereon, without any appeal or writ of error to their judgment. The act of 1788 did not take away the ex62*] *clusive cognizance which the supreme court for the district of Kentucky had respect ing caveats, but they retained it till the final separation of Kentucky from Virginia; after

law authorizing an appeal; so that under the state laws, it is clear that no appeal or writ of error would lie. There being then no appeal under the state laws, the question will be simply whether a writ of error will lie to the district court of the United States for the Kentucky district, upon an action carried there from the state court, which, under the laws of the state, had a final and exclusive jurisdiction of the cause.

The 22d section of the judiciary act of 1789, (Laws U. S., vol. 1, p. 61,) which allows appeals and writs of error generally, did not contemplate a case like the present. This court is bound to take notice of the laws of the several states. By the 34th section of the same judiciary act, p. 74, the laws of the several states are to be the rules of decision in cases where they apply. The remedy by caveat is given by the state law, and the party who chooses to take that remedy must take it with its condition annexed, that no appeal or writ of error shall be allowed. A purchaser under the commonwealth of Virginia acquires his right under this condition. It is a part of the contract from which this court cannot absolve him. The parties to this suit are not the only parties interested in this question; for while the right is hung in dubio, whilst it is uncertain to whom the grant ought to issue, the state taxes cannot be collected, the commonwealth having no tenant to whom to resort. Wilson has sought the summary process by caveat, and ought to be bound by the restrictions of that law under which he claims his remedy. He was not compelled to use the summary remedy; he might have resorted to chancery, and then the commonwealth would have had a tenant to pay the taxes. He ought not to have the benefits of this kind of process, without submitting to the inconveniences which may be supposed to attend it. If this opinion is correct, although the laws of the United States provide generally that writs of error may be had, they can only give them as a remedy where a right exists; and if Wilson's right is gone by the judgment of the court below, he is precluded from suing it out by the statute under which he claims. *Lee, in reply.

[*63

This caveat is brought from the district court of the United States, and not from a state court. It is true that it originated in the state court, but it was the defendant Mason, and not Wilson the plaintiff, who brought it into the court of the United States; and if the judg ment of that court becomes thereby liable to be reversed upon a writ of error, it is a consequence attributable to the act of Mason alone.

There is nothing peculiar in the nature of the proceeding by caveat, to exclude it from the general appellate jurisdiction which is given to this court by the constitution and laws of the United States. It is not true that this court are to look into the laws of Virginia for their right to correct the errors of the inferior courts of the United States. When a cause is brought from a state court into a court of the United States, it is to be proceeded upon as if it had originated in the latter court, and the act of congress has expressly provided for an appeal or writ of error in the very case of an action removed from a state court into an inferior

court of the United States. Unless this case can be shown to be within some express exception to the general rule, none ought to be presumed by implication. With regard to the compact between Virginia and the inhabitants of Kentucky, it is true that in all matters of substance, where the right of property depends upon it, it is binding upon this court; but in matters of form only, it could never receive the strict construction contended for, even between the parties themselves. The reasoning of the opposite counsel would go to prove that every caveat, depending upon the laws of Virginia, must be tried in the courts of Virginia only, because they had the sole right of trying a caveat at the time of the compact. It would prevent the states of Virginia and Kentucky forever from modifying and regulating their system of courts, and neither state could ever afterwards authorize an appeal upon a caveat. But an appellate jurisdiction on caveats did exist in Virginia at the time of the compact. It appears by the act of congress, vol. 1, p. 278, that Kentucky did not become an independent 64*] state till June, 1792. The county courts of Virginia had before that time cognizance of caveats as to lands within their respective counties. Laws of Virginia, Rev. Code, p. 92, s. 11; and in p. 88, s. 53, an appeal is given from the county courts to the district courts in all cases of a certain value, or where the title of land is drawn in question; and in p. 69, s. 14, an appeal or writ of error is allowed from the district courts to the court of appeals, in the same manner as from the county to the district

courts.

As to taxes, the state may tax the land before any patent has issued, if they think proper. It is not necessary that there should be a tenant.

The Court directed the counsel to proceed in the further argument of the cause, observing

that they would consider this point with the others.

Lee, for the plaintiff in error.

The question is, who has the better right to the grant for 8,300 acres of land, surveyed for George Mason on the 2d of October, 1783.

1st. The decision of this controversy depends on the laws of Virginia, prescribing the terms and manner acquiring title to waste and unappropriated lands; with which there must be a legal and exact compliance.1

According to these laws there must [*65 be a warrant, an entry, and a survey; the warrant being the foundation of the entry, and the entry directing and controlling the survey. If the entry be made without a warrant, [*66 or if the survey be made of other land than that described in the entry, in either case there is a defect of title.

*In this caveat one of the causes as- [*67 signed is, that the survey of Mason was made contrary to his entry, and this we conceive to be a fatal defect in his title.

2d. The entries made on the 29th of April, 1780, by G. Mason (from whom the defendant derives his title) of his two warrants, No. 1, for 8,400 acres, and No. 2, for 8,300 acres, were valid and sufficient entries of land on the east side of Panther creek, and above the mouth of the west fork thereof, at the time those entries were made. The entry of warrant No. 1 is "on 8,400 acres of land to begin on Panther creek on the east side thereof, opposite to a beech on the west side, about four miles above the mouth of the west fork, and to run up and down the said creek, and eastwardly for quantity."

The entry of warrant No. 2 is "on 8,300 acres to begin at the upper corner of his 8,400 acre entry, and run up the creek on the east side, and back for quantity."

3d. If the explanation made on the 27th October, 1780, of the entry of warrant No. 1, on and unappropriated lands, shall lodge such warrant with the chief surveyor of the county wherein the said lands or the greater part of them lie, who shall give a receipt for the same, if required.

The

The preamble recites, 'Whereas there are large quantities of waste and unappropriated lands within the territory of this commonwealth, the granting of which will encourage the migration of foreigners hither, promote population, increase the annual revenue, and create a fund for discharging the public debt, be it enacted,' &c.

§ 1. That an office be constituted for the purpose of granting lands, and a register of the said land office be appointed, &c.

§ 2. "That any person may acquire title to so much waste and unappropriated lands as he or she shall desire to purchase, on paying the consideration of 401. for every 100 acres, and so in proportion,' &c.

3. Register to grant printed warrants under his hand and seal of office, specifying the quantity of land, and the rights upon which it is due, authorizing any surveyor duly qualified according to law to lay off and survey the same, 'which warrants shall be always good and valid until executed by actual survey:' no warrant to be issued other than pre-emption warrants, before the 15th of October, 1779. No surveyor to permit the entry or location of any warrant before the 1st of May, 1780. A surveyor to be appointed in every county.

'Every person having a land-warrant founded on any of the before-mentioned rights, and being de sirous of locating the same on any particular waste 36

and precisely, as that others may be enabled with certainty to locate other warrants on the adjacent residuum which location shall bear date on the day on which it shall be made, and shall be entered by the surveyor in a book to be kept for that purpose, in which there shall be left no blank leaves or spaces between the different entries.

"The surveyor at the time of making the survey shall see the same bounded plainly by marked trees, except where a water course, or ancient marked line, shall be the boundary, and shall make the breadth of each survey at least one-third of its length in every part, unless where such breadth shall be restrained on both sides by mountains unfit for cultivation, by water courses, or the bounds of lands before appropriated. He shall, as soon as it can conveniently be done, and within three months at farthest after making the survey, deliver to his employer, or his order, a fair and true plat and certificate of such survey, the quantity contained, the hundred, (where hundreds are established in the county wherein it lies,) the courses and descriptions of the several boundaries, natural and artificial, ancient and new, expressing the proper names of such natural boundaries, where they have any, and the name of every person whose former line is made a boundary; and also the nature of the warrant and rights on which such survey is made. The said plats and certificates shall be examined and tried by the said principal surveyor, whether truly made and legally proportioned as to length and breadth, and shall be entered withCranch 1.

5th. If the claim of the defendant be deemed invalid, then there is no impediment in the way of the plaintiff, whose warrants, whose entry, and whose survey, are perfectly conformed to law.

4th. The entry of 8,300 acres, under warrant No. 2, being such a special and precise entry as the law requires, is an appropriation of the land described in it; and fixes that warrant upon that tract of land, situate upwards of four miles above the west fork of Panther creek: and the survey made by Mason of 8,300 acres on the south side of Panther creek, and below the west fork thereof, and several miles below it, is not a survey of the same land contained in his entry.

A survey, of itself, without a previous legal entry of a land warrant, is not a legal appropriation of waste and vacant land; and therefore this survey, unsupported by a legal warrant and a legal entry, was no legal appropriation, by Mason, of the land in controversy; but an unlawful intrusion thereupon; and the same land remained open to the appropriation of others, who, having notice of the legal survey of Mason, were not precluded by law, or equity, from proceeding in due course of law to obtain title to the same land which is described in that illegal survey which had been knowingly made by the agents of Mason contrary to his legal in three months at farthest after the survey is made, in a book, well bound, to be provided by the court of his county, at the county charge.'

'Every person for whom any waste or unappropriated lands shall be so located and laid off, shall, within twelve months at farthest after the survey made, return the plat and certificate of the said survey into the land office, together with the warrant on which the lands were surveyed, and may demand of the register a receipt for the same, and on failing to make such return within twelve months as aforesaid, or if his breadth of his plat be not one-third of its length, as before directed, it shall be lawful for any other person to enter a caveat in the said land office against the issuing of any grant to him, expressing therein for what cause the grant should not issue; or if any person shall obtain a survey of lands, to which another hath by law a better right, the person having such better right may in like manner enter a caveat to prevent his obtaining a grant until the title can be determined; such caveat also expressing the nature of the right on which the plaintiff therein claims the said land. The person entering any caveat shall take from the register a certified copy thereof, which, within three days thereafter, he shall deliver to the clerk of the general court, or such caveat shall become void; the said clerk, on receiving the same shall enter it in a book, and thereupon issue a summons, reciting the cause for which such caveat is entered, and requiring the defendant to appear on the seventh day of the succeeding court, and defend his right; and, on Buch process being returned executed, the court shall proceed to determine the right of the cause in a summary way, without pleadings in writing; impaneling and awearing a jury for the finding

The two causes assigned by Mason in his caveat against Wilson are resolvable into one, viz., that having notice of the survey, of Mason, it was not equitable but fraudulent *to [*69 acquire a title to the same land which was contained in that survey. But if the law be in favor of the plaintiff, equity is also; for notice of illegal proceedings in one man to acquire property, is no equitable bar to another who shall in all respects proceed according to law.

On the part of the defendant Mason, there was full and complete knowledge of Green river, Panther creek, and the west fork; and with this knowledge, a survey was made of a different tract than the one described and authorized by the entry No. 2, for the purpose of obtaining a grant, in evasion and fraud of the law. Such illegal proceeding ought not to be sustained in a court of justice against another who shall respect and obey the law in all particulars.

The entry of Mason for 8,300 acres on the 29th April, 1780, begins at the upper corner of his entry for 8,400 acres, as made on the same day. The entry for 8,400 acres, well and accurately described a tract of land lying on the east side of Panther creek, opposite a beech on the west side, and four miles above the west fork. This entry being sufficiently certain, the entry for 8,300 acres must be certain also, and describes a particular tract of land lying more than four miles above the west fork.

The west fork was known by that name to the agent of Mason at the time he made the entries on the 29th of April, having encamped thereabouts four or five weeks in the winter of such facts as are material to the cause, and are not agreed by the parties; and shall thereupon give judgment, on which no appeal or writ of error shall be allowed; a copy of such judgment, if in favor of the defendant, being delivered into the land office, shall vacate the said caveat; and if not delivered within three months, a new caveat may for that cause be entered against the grant; and if the said judgment be in favor of the plaintiff, upon delivering the same into the land office, together with a plat and certificate of the survey, and also producing a legal certificate of new rights on his own account, he shall be entitled to a grant thereof; but on failing to make such return and produce such certificates within six months after judgment so rendered, it shall be lawful for any other person to enter a caveat, for that cause, against issuing the grant; upon which subsequent caveats, such proceedings shall be had as are before directed in the case of an original caveat; and in any caveat where judgment shall be given for the defendant, the court shall award him his costs;' 'and in case the plaintiff in any such caveat shall recover, the court may, if they think it reasonable, award costs against the defendant.'

'And for preventing hasty and surreptitious grants, and avoiding controversies and expensive lawsuits, be it enacted, that no surveyor shall at any time within twelve months after the survey made, issue or deliver any certificate, copy or plat of land, by him surveyed, except only to the person or persons for whom the same was surveyed; or to his, her or their order; unless a caveat shall have been entered against a grant to the person claiming under such survey, to be proved by an authentic certficate of such caveat from the clerk of the general court, produced to the surveyor.'