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1822.

Crocket

V.

Lce.

are proofs of a continuing American ownership, which are entirely conclusive. There can, then, be no doubt but that the captures made by the Fortuna are in violation of the laws of the United States, enacted for the preservation of our neutrality, and that they ought to be restored when brought within our territory.

The Rainha de los Anjos was a Portuguese vessel, captured by the La Fortuna, in the same cruize in which she captured the Monte Allegre. The cases are, in all material respects, the same.

Sentences affirmed with costs.

(LOCAL LAW. CHANCERY.)

CROCKET V. LEE.

SAME V. SAME.

A question on the validity of a certificate for a settlement right in
Kentucky, and of the entry thereof in the surveyor's office.

It is a settled rule, that the decree must conform to the allegations in
the pleadings, as well as to the proofs in the cause.

Therefore, when the question is on the validity of a location, and neither its vagueness nor its certainty are distinctly put in issue by the pleadings, the testimony to that point will be disregarded by this Court; but if the merits appear to justify it, the cause will be remanded to the Court below, with directions to permit the pleadings to be amended.

APPEAL from the Circuit Court of Kentucky.

These causes were argued by Mr Sheffey," for the appellant, and by Mr. Clay,' for the respondent.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

These causes relate to the same title, and depend on the same question. It is the validity of a certificate for a settlement right granted to Angus Cameron, and of the entry thereof in the surveyor's office.

The certificate is in these words:

"Angus Cameron this day claimed a settlement and pre-emption in the District of Kentucky, on account of residing in the country twelve months before the year 1778, lying at the head right hand fork of Welles' branch, extending south east to the head of a small run that empties into the north fork of Licking, including the spring on the head of both branches, about one and a half miles above the war path that crosses the north fork. Satisfactory proof being made to the Court, they are of opinion that the said Cameron has a right to a settlement of 400 acres of land, to include the above location, and the pre-emption of 1000 acres adjoining, and that a certificate issue accordingly."

a Who cited Bodley v. Taylor, 5 Cranch, 229. 6 Cranch. 148. 3 Cranch, 239. 2 Wheat. Rep. 144. 2 Bibb, 144. 1 Bibb, 72. 1 Wheat. Rep. 141. 1 Wheat. Rep. 130. 3 Bibb, 623. 5 Wheat. Rep. 116. 6 Wheat. Rep. 119. 1 Bibb, 228.

b Who cited 1 Bibb, 10. 46. 34. 129. 136. 2 Bibb, 109. 114. 259. 476. 479. Hardie, 411. 1 Marsh. Kent. Rep. 281. Print. Dec. 95. 3 Bibb, 148, 149. Wheat. Dig. Dec. tit. Local Law. XI.

1822.

Crocket

V.

Lee.

March 7th.

1822.

Crocket

V.

Lee.

The entry in the surveyor's office conforms to the location expressed in the certificate.

The right of Cameron, both to his settlement and pre-emption, was regularly conveyed to the appellant, in whose name patents have been obtained.

The appellee claims under junior entries, for which patents have been issued, younger than the appellant's patent on the pre-emption warrant, but elder than his patent on the settlement right. The appelJant, therefore, filed his bill to obtain a conveyance for the land covered by his settlement right, the legal title to which was in the appellee; and the appellee filed his bill to obtain a conveyance for the land covered by the appellant's patent on the pre-emption right, to which he claimed the equitable title.

Pending the controversy, Lee purchased in the right of a person claiming under a patent older than either of those under which Crocket claimed; but as this patent was founded on a junior entry, the validity of Cameron's certificate, was still the question on which the whole case depended.

In the Circuit Court, Crocket's bill was dismissed ; and, in the other suit, he was decreed to convey to Lee the land contained in his patent for Cameron's settlement right. The decrees were founded entirely on the opinion that Cameron's location was too vague to be supported. In the Circuit Court, the cause turned almost entirely on this point, and the greater part of the testimony is taken with a view to it. If the validity of Cameron's location be sustained, Crocket must succeed, because his right is prior in time, and superior in dignity, to any title conflicting

1822.

with it. If Cameron's entry be invalid. then the decrees are right, either because Young's try is good, Crocket or because the legal title was in Lee, when they were made.

The testimony which has been taken in these causes, certainly is very strong in support of the decrees of the Circuit Court; but the counsel for the appellant contends that so much of this testimony as respects the vagueness of Cameron's location must be disregarded, because neither its vagueness nor its certainty has been put in issue. Lee has not averred in his bill, nor alleged in his answer, that this location is vague, nor has he any where, or in any manner, questioned its validity.

The principle advanced by the appellant's counsel cannot be controverted. No rule is better settled than that the decree must conform to the allegations, as well as to the proofs in the cause. The location being set out in the pleadings, the Court can undoubtedly notice any intrinsic apparent defect. If it be void in itself, no testimony can sustain it, and it would be deemed void on a demurrer to the bill. But if it be not void in itself, if its validity depends upon facts to be proved in the cause, then its validity ought to be put in issue.

The counsel for the appellee does not directly controvert this principle, but endeavours to withdraw his case from its operation, by contending that terms are used in the pleadings which are equivalent to a direct allegation that Cameron's location is too vague to be sustained.

If in this he is correct, the consequence he draws

V.

Lee.

1822.

Crocket

V.

Lee.

The entry in the surveyor's office conforms to the location expressed in the certificate.

The right of Cameron, both to his settlement and pre-emption, was regularly conveyed to the appellant, in whose name patents have been obtained.

The appellee claims under junior entries, for which patents have been issued, younger than the appellant's patent on the pre-emption warrant, but elder than his patent on the settlement right. The appelJant, therefore, filed his bill to obtain a conveyance for the land covered by his settlement right, the legal title to which was in the appellee; and the appellee filed his bill to obtain a conveyance for the land covered by the appellant's patent on the pre-emption right, to which he claimed the equitable title.

Pending the controversy, Lee purchased in the right of a person claiming under a patent older than either of those under which Crocket claimed; but as this patent was founded on a junior entry, the validity of Cameron's certificate, was still the question on which the whole case depended.

In the Circuit Court, Crocket's bill was dismissed ; and, in the other suit, he was decreed to convey to Lee the land contained in his patent for Cameron's settlement right. The decrees were founded entirely on the opinion that Cameron's location was too vague to be supported. In the Circuit Court, the cause turned almost entirely on this point, and the greater part of the testimony is taken with a view to it. If the validity of Cameron's location be sustained, Crocket must succeed, because his right is prior in time, and superior in dignity, to any title conflicting

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