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
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
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.
Page 12 U. S. 379
TODD, J. after stating the case, delivered the opinion of the
Court as follows:
In the written arguments submitted by the parties, it is
admitted by the counsel for the appellants that the evidence
exhibited does not support the allegation in the bill that the
assignment was made during the minority of Mary Frazer. This
admission renders it unnecessary for the Court to go into a minute
examination of the evidence; it will be sufficient to observe that
the testimony is clear and satisfactory on this point, and
therefore there is no pretense for setting aside the contract and
decreeing a reconveyance of the land. But it is contended that the
complainants are entitled
Page 12 U. S. 380
to relief in some shape for the surplus land contained within
the survey, either by a decree for the reconveyance of the surplus
land, by a pecuniary compensation for it according to its present
value, or by a pecuniary compensation according to the price at
which the land was sold, on which interest should be allowed.
This argument assumes for its basis that there existed a mistake
as to the thing sold. If there was a mistake, how did it originate,
and who is injured thereby? Was there a mistake? It may be inquired
to what quantity of land was Mary Frazer entitled by virtue of the
governor's warrant issued in pursuance of the royal proclamation?
To two thousand acres. How much did she sell and receive payment
for? Two thousand acres. It would appear from this that she had
sold and received payment for as much land as she was entitled to.
How comes it that this surplus was included in the survey? From the
fraud, design, ignorance, or negligence of the surveyor. Who is
defrauded or injured thereby? The Commonwealth of Virginia, and not
Mary Frazer. For what it is asked that compensation shall be made?
For land which, by the fraud, design, ignorance, or negligence of
the surveyor, Mary Frazer might by possibility have been entitled
to. Was the sale of this survey of a specific quantity at a certain
price per acre? or was it a sale of a specific tract? The bill
alleges it was of the first description; the answers deny it and
say it was of the latter. There is no proof to support the
allegation in the bill unless from the survey, a power of attorney,
and the receipt for the purchase money, it should be inferred that
as they relate to 2,000 acres of land, only that quantity was
intended to be included in the sale. But this proof is conceived to
furnish a very opposite conclusion, the description and designation
of the tract of land sold not as part of a tract, but an entire
tract. The answers, being supported by the assignment that it was a
sale of the whole survey, and being also responsive to an
allegation as well as to an interrogatory in the bill, must be
taken as true and conclusive. 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. In the case
of
Young
Page 12 U. S. 381
v. Craig, decided by the Court of Appeals of Kentucky
(a copy of which has been furnished and relied on by each party),
the court says
"there was, particularly in the sales made at an early period of
this country, great liberality of admeasurement frequently allowed
by the seller and expected by the purchaser. Where this was the
case, to authorize a conclusion, from the surplus contained in the
boundaries of a tract, that there was a mistake of quantity, the
surplus ought to be greater than was usual in conveyances made
about the same period."
Now it appears from a statement in the bill as well as from the
general history of the country that it was usual and customary to
make considerable allowance in military surveys, and it is not
shown that the surplus in this is greater than in other surveys
made about the same time. Again, in the same case, the court
proceeds
"It would be obviously improper and unjust to lay down any
general rule as to the rate of surplus that would justify an
inference of mistake which would deserve correction; each case must
depend upon its own particular circumstances; whether such an
inference would be authorized in the present case, were the sale in
question per acre and not in gross, need not be determined, since
we are of opinion it is of the latter description."
If this reasoning be correct as to conveyances, it will apply
with redoubled force to assignments of plats and certificates of
survey, where the purchaser takes it subject to the risk of its
containing less than it specifies.
Mary Frazer or the complainants can be considered in no other
view than mere volunteers
mala fide, and of course not
entitled to the aid of a court of equity.
It seems as a necessary consequence, if the complainants are not
entitled to the surplus land, they are not to compensation in
either of the other modes contended for. Where there is no right.
there can be no claim to compensation sustained.
Decree affirmed with costs.
