5 U.S.

45
1 Cranch 45
2 L.Ed. 29

GEORGE WILSON
v.
RICHARD MASON, devisee of GEORGE MASON.
RICHARD MASON, devisee of GEORGE MASON
v.
GEORGE WILSON.
December 1, 1801

THESE cases were brought before the Court by writs of error to the
district court of Kentucky, the parties having previously, under the
provisions of the laws of that state, sought to establish their title to the
lands in question by cross caveats, upon which judgment had been
entered. By the laws of Virginia, before that part of her territory which
afterwards became the separate state of Kentucky, and by the laws of
Kentucky, a particular form of entering and taking up waste lands was
designated, and a mode for investigating and deciding upon titles claimed
to have been acquired under those laws was directed. The parties in this
case asserted a compliance with those laws.
The facts and provisions of the land laws, upon which the rights of the
parties were claimed to depend, are fully stated in the opinion of the court.
For the plaintiff in error (Wilson) it was argued,
1. That the courts of the United States have jurisdiction of this case by the
constitution and laws of the United States, the laws of Virginia non
obstante.
2. That the acts of congress are superior to the laws of a particular state
when those laws contravene the statutes of the United States. 3. That by
the laws of Virginia a right of appeal is allowed upon a caveat.
For the defendant in error (Mason) it was contended,
1. That the entry of Mason was sufficiently certain, and the survey was in

conformity to it.
2. That if this was not the fact, the survey of the land and payment having
been made for it before any other person had made an effort to acquire
title to it, vested the land in Mason as a bona fide purchaser from the state.
3. After the survey of Mason the land ceased to be waste and
unappropriated: and Wilson knowing this fact could not acquire a title to
the land by any act, he being a fraudulent second purchaser, with notice of
a prior sale.
4. That by the provisions of the law the plaintiff in error was not entitled
to a caveat.
[Argument of counsel from pages 45-87 intentionally omitted]
Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This is a writ of error to a judgment of the court of the United States for the
district of Kentucky, rendered on a caveat, and is governed by the land laws of
Virginia.

In the year 1779, the legislature of that commonwealth opened a land office
and offered for sale, with some reservations, so much of that tract of country
lying within its boundaries south-east of the river Ohio as was then
unappropriated: a part of which now constitutes the state of Kentucky.

Every person who would pay at the rate of forty pounds for one hundred acres
into the treasury of the state, became entitled to such quantity of waste and
unappropriated land as was, at that rate, equivalent to the money paid, for
which a certificate was given to the register of the land office, whose duty it
was, on receipt thereof, to issue a warrant for the quantity of land purchased,
authorizing any surveyor, qualified according to law, to lay off and survey the
same. A warrant might also be issued on certain other rights.

A chief surveyor was appointed for each county, whose duty it was to nominate
a sufficient number of deputies for the business of his county, and the law
proceeded to direct that 'every person, having a land warrant founded on any of
the before mentioned rights, and being desirous of locating the same on any
particular waste 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 party shall direct the
location thereof so specially 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.'
5

George Mason was one of the earliest purchasers under this law.

On the 29th of April 1780 he made the following entries:

'29 April 1780. George Mason enters 8400 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.'

'29 April 1780. George Mason enters 8300 acres, to begin at the upper corner
of his 8400 acre entry, and to run up the creek on the east side and back for
quantity.'

Panther creek pursues a general westwardly course from its source till it
empties into Green river.

10

The creek forks something more than twelve miles and one quarter of a mile in
a straight line above its mouth; and one of those forks, the direction of which
towards its source is northwardly, has, from the beginning of the year 1780,
been generally termed the west fork, and the other has been termed Panther
creek.

11

On the 27th October 1780, Mr. Mason made the following entry with the same
surveyor:

12

'27 October 1780. George Mason desires to make his entry of 8400 acres more
special on Panther creek, viz. to begin four miles above the forks of Panther
creek where it mouths into Green river on the east side, running up and back
for quantity.'

13

In the months of September and October 1783, these two entries of 8400 and
8300 acres were surveyed by James Hord, one of the deputy surveyors of the
county of Jefferson, which surveys, as was the custom, were made conformably

to the instructions given by Mr. Mason's agent.

14

The survey of the entry of 8400 acres is supposed to conform to the explanation
or amendment of that entry made in October 1780. It begins four miles above
the mouth of Panther creek and something more than eight miles below its
forks.

15

The survey of the 8300 acre entry adjoins the survey of 8400 acres on the upper
side; and the plat was shown by the surveyor, before he would return it, to the
then agent of Mr. Mason, who, after its supposed variance from the entry was
suggested to him, approved it and directed it to be returned to the office.

16

These surveys were returned in the course of the fall of 1783.

17

The supposed variance between the survey and location of the 8300 acres was
afterwards, about the 12th of September 1784, pointed out by the surveyor to a
subsequent agent of Mr. Mason, who also approved of the manner in which the
surveys were made, and returned them to the land office.

18

On the 9th of April 1783, George Wilson enters with the surveyor of Jefferson
county 40,926 acres of land on Panther creek, so as entirely to include George
Mason's survey of 8300 acres.

19

This entry, though in the name of George Wilson, was made by John Handley,
a deputy surveyor for Jefferson county, for his own benefit and that of
Christopher Greenup, as well as for the benefit of George Wilson; and at the
time of making the entry, full knowledge of the previous survey made of the
same land for George Mason, had been obtained by the said Handley, who had
seen the surveys in the office and had communicated this information to his two
partners in the entry.

20

In the month of March 1784, George Wilson entered in the supreme court of
the district of Kentucky a caveat to prevent a grant from issuing on George
Mason's survey of 8300 acres, because the survey was made contrary to
location, and because the entry was vague, he claiming the same, or so much
thereof as interferes with his entry made on treasury warrants for 40,926 acres,
on the 9th of April 1783.

21

Pending the caveat George Mason departed this life, and the suit was revived
against Richard Mason, devisee of the said George, at whose petition it was

removed into the court of the United States, held for the district of Kentucky.
22

A cross caveat was entered in the same court on the part of Richard Mason, to
prevent the issuing a patent to George Wilson, and these causes coming on to
be heard, it was agreed that the judgment rendered in the caveat Wilson v.
Mason, should be also entered in the case of Mason v. Wilson.

23

In June term 1800, the opinion of the court for the district of Kentucky was
given that the defendant Mason had the better right, and it was ordered that the
caveat entered by Wilson should be dismissed.

24

To this judgment the plaintiff Wilson has obtained a writ of error, and the
principal question now to be decided by this court is, which of the parties has
the better right?

25

But before entering on the question it may be necessary to notice a preliminary

point made by the counsel for the defendant in error. He contends that in a
caveat the decision of the district court is final, and that the cause cannot be
carried before a superior tribunal.

26

To maintain this proposition he relies on an act of the legislature of Virginia,

making the judgments of the district courts of the state final in cases of caveat;
and on the compact between Virginia and Kentucky, which stipulates that rights
acquired under the commonwealth of Virginia shall be decided according to the
then existing laws.

27

This argument would not appear to be well founded had Virginia and Kentucky
even been for every purpose independent nations; because the compact must be
considered as providing for the preservation of titles, not of the tribunals which
should decide on those titles. But when their situation in regard to the United
States is contemplated, the court cannot perceive how a doubt could have
existed respecting this point. The constitution of the United States, to which the
parties to this compact had assented, gave jurisdiction to the federal courts in
controversies between citizens of different states. The same constitution vested
in this court an appellate jurisdiction in all cases where original jurisdiction was
given to the inferior courts, with only 'such exceptions and under such
regulations as the congress shall make.' Congress, in pursuance of the
constitution, has passed a law on the subject, in which the appellate jurisdiction
of this court is described in general terms so as to comprehend this case, nor is
there in that law any exception or regulation which would exclude the case of a
caveat from its general provisions. If then the compact between Virginia and

Kentucky was even susceptible of the construction contended for, that

construction could only be maintained on the principle that the legislatures of
any two states might, by agreement between themselves, annul the constitution
of the United States.
28

The jurisdiction of the court being perfectly clear, it remains to inquire which
of the parties has the better right.

29

The title of Mason being eldest is of course the best, if it be not in itself
defective.

30

In the caveat of the plaintiff in error two defects in the title of the defendant are
assigned.

31

1. That his entry is vague.

32

2. That he has surveyed contrary to his location.

33

The first was abandoned in argument, and does not appear to the court to have
been maintainable.

34

The second shall now be considered.

35

To support the allegation that the survey has been made contrary to the
location, the entry and the survey are produced.

36

The entry calls for a beginning on the upper corner of George Mason's entry of
8400 acres. To ascertain this spot reference must be had to the entry called for.
That is 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.

37

The branch of Panther creek which was at the date of the entry generally
denominated the west fork, is something more than twelve miles and one
quarter of a mile above its mouth. The entry of 8400 acres is to begin four miles
above the west fork, and the land in controversy ought to be placed above that
entry. Yet it is surveyed below the west fork.

38

To obviate this difficulty the counsel for the defendant in error produces and
relies upon the entry of the 27th of October 1780.

That entry is in these words:

39

'George Mason desires to make his entry of 8400 acres more special on Panther
creek, viz. to begin four miles above the forks of Panther creek, where it
mouths into Green river, on the east side, running up and back for quantity.'

40

This entry is contended to be, not a removal, but an explanation of that which
had been made on the 29th of April 1780, and being merely an explanation, the
survey of the land in controversy, beginning at the upper corner of the survey
of the 8400 acre tract, conforms to its original location, and is consequently free
from the exception made to it.

41

If this position be true, the entry of the 27th of October 1780 must describe the
same land with that which is described, though which less certainty, by the
entry of the 29th of April in the same year.

42

But the entry of the 29th of April calls for a beginning four miles above the
mouth of the west fork of Panther creek, which fork is more than twelve miles
in a straight line above the mouth of the creek, and the subsequent entry begins
four miles above the forks of Panther creek where it mouths into Green river.
The west fork of Panther creek and the mouth of the same creek where it
empties into the river are perfectly distinct and separate places, and were so
understood at the time this location was made.

43

It is however contended that in the extensive wilderness offered for sale,

accuracy of description was not to be expected, and the point of union between
a creek and river might well be mistaken for the forks of a creek.

44

This would not be very probable in any case, but it totally inadmissible in this,
because names of places which they were generally understood to possess have
been used by the person locating for Mr. Mason, and as there are no other
controlling boundaries referred to, they must be understood as designating the
water courses which were commonly described by those names, and which any
person inclined to locate the adjacent residum, would necessarily suppose to
have been referred to by them.

45

But if the location of October explains without removing that of April, then the
original entry might without such explanation have been there surveyed, and
could not have been properly surveyed four miles above the west fork.

46

This would scarcely have been attempted.

46

47

This would scarcely have been attempted.

Indeed the counsel for the appellee, in admitting that an entry made on the land
in controversy, subsequent to Mason's entry, but before his survey, would have
been good, seems to have disclosed an opinion that the original entry did not
comprehend the land in question, and that not the entry but the survey is to be
relied on as the foundation of his title.

48

To the court it appears perfectly clear, that the entry of the 27th of October was
a removal and not an explanation of that of the 29th of April.

49

It has not been contended that the removal of the 8400 acre entry has also
removed that of 8300 acres.

50

The title of Mason then, if good, must be shown to be so by establishing that a

survey without an entry is a sufficient foundation for a title.

51

With a view to discover whether this question has been settled in Kentucky, all
the adjudications contained in the book of reports furnished by the counsel for
the plaintiff in error have been examined. It is not perceived either that the
question has been directly determined, or that any principles have been settled
which govern it.

52

This case then is of the first impression.

53

The act of the Virginia legislature must be expounded according to the opinion
this court may entertain of its import, without deriving any aid from the
decisions of the state tribunals.

54

In 1779 Virginia opened a land office for the sale of an extensive unsettled and
almost unexplored country, the motives for which are stated in the preamble of
the statute to have been, 'to encourage the migration of foreigners, promote
population, increase the annual revenue, and create a fund for discharging the
public debt.'

55

Any person whatever might become a purchaser of any portion of these lands
by paying into the treasury of the commonwealth the purchase money required
by law. By doing so he became entitled to a warrant authorizing any survey or
to lay off for him in one or more surveys the quantity of land purchased. It was
apparently contemplated by the law that the number of purchasers would
immediately become very considerable. The condition of these purchasers in

this stage of the contract ought to be distinctly understood. They had acquired a
right each to appropriate to himself so much of the vacant land belonging to the
commonwealth as he had purchased, but no right either in common or severally
to the whole or any particular part of the country until such right should be
acquired by further measures.
56

This was at the same time the situation of a great number of persons, and a
prior was in no respect more eligibly circumstanced than a subsequent
purchaser, except in the single case of both applying precisely at the same time
for the purpose of appropriating each to himself the same land. Had the
purchaser of the first warrant been negligent enough to hold it up until the
whole land was appropriated, the title of every subsequent purchaser would
have been good against him, and he would have been without remedy. The
original purchase of a warrant then creating only a general claim which gave of
itself only in a single case priority of right to the prior purchaser, it became
indispensably necessary to prescribe a mode by which this general title should
be satisfied by the appropriation of a particular tract of land.

57

This mode seems to have been prescribed by that part of the act which says that
'every person having a land warrant and being desirous of locating the same on
any particular waste and unappropriated lands, shall lodge such warrant with
the surveyor of the county wherein the lands or the greater part of them lie.'
'The party shall direct the location thereof so specially and precisely that others
may be enabled with certainty to locate other warrants on the adjacent
residuum; which location shall bear date the day on which it shall be made, and
shall be entered by the surveyor in a book to be kept for that purpose.'

58

This mode of appropriation pointed out by the law as that which must be used
by any person desirous of locating a warrant on any particular waste and
unappropriated land, requires that the location shall be given to the surveyor
with the warrant, in order to be entered in a book kept for that purpose, which is
denominated the book of entries.

59

It is apparent throughout the whole act that the legislature never contemplated a
survey as being in itself an appropriation of land, or supposed that one would
be ever made if not founded on a previous entry.

60

Some few of the many passages which are found in various parts of the law will
be selected to evince this position.

61

The surveyor is forbidden to admit the entry of any warrant on treasury rights,

except pre-emption warrants, in his books before the first day of May next
succeeding the passage of the act. But the prohibition does not extend to a
survey, and yet this would have been equally necessary if land could have been
appropriated by a survey without a previous location.
62

It is declared that no entry or location shall be admitted for certain lands which
are described in the act and intended to be reserved: but there is no declaration
that they shall not be surveyed. This omission manifests an opinion that they
could not be appropriated by survey alone.

63

In prescribing the duty of a surveyor the law enjoins him to proceed with all
practicable dispatch to survey all lands entered into his office; and many rules
are given to regulate the surveying of entries; but there is not a syllable in the
act which contemplates or makes a single provision for surveys not founded on
a prior entry made in the book of entries.

64

The mode of appropriation then which the law designates has not been pursued,
but it is contended that another course has been adopted which equally
produces all the objects designed to be effected by the location in the book of
entries, and which therefore ought to be received as a sufficient substitute for an
entry.

65

The legislature of Virginia, when bringing her lands into the market, had
undoubtedly a right to prescribe the terms on which she would sell, and the
mode to be pursued by purchasers for the purpose of particularising the general
title acquired by obtaining a land warrant. The court is by no means satisfied of
its power to substitute any equivalent act for that required by the law.

66

The case of Blackwell v. Harper, reported in 2 Atkyns, 93, has been cited to
show the authority of a court to dispense with part of a statute directing the
mode of proceeding to be observed by a person who claims title under such
statute.

67

That case arose under an act of parliament which directs that 'any person who
shall invent, or design, engrave, &c. any historical or other print or prints, shall
have the sole right and liberty of printing and reprinting the same for the term
of fourteen years, to commence from the day of the first publishing thereof,
which shall be truly engraved with the name of the proprietor on each plate, and
printed on every such print or prints.' The plaintiff had engraved certain
medicinal plants, a work deemed within the act, and had brought a bill to
establish her right to the sole property in them, and to restrain the defendant

from copying and engraving them, upon the penalties within the act of
parliament.
68

It was objected that the day of publication from which the term was to
commence had not been engraved, and so the act had not been complied with
and consequently the property had not vested.

69

Lord Hardwicke was of opinion that the property vested, although the day of
publication was not engraved, and that the words directing the day of
publication to be engraved on each print were only necessary to make the
penalties incur, not to give the title.

70

'Here,' said his Lordship, 'the clause which vests the property is distinct.'

71

This opinion however was given with great doubt, and only an injunction was
granted without costs and without an order for an account.

72

The case of Blackwell v. Harper has, at the bar, been denied to be law.
However this may be, it is certainly essentially variant from that before the
court.

73

The opinion of Lord Hardwicke was not that where any circumstance was
required by a statute in order to vest a title, other equivalent acts might be
received as a substitute; but that the particular statute on which the case
depended did not require the omitted circumstance, since the property was
vested by a distinct clause.

74

By a reference to the words themselves it will be perceived that the expression

of the act of parliament is such as might perhaps warrant this opinion. The
property is completely vested before the direction concerning the date of the
publication is given, and Lord Hardwicke supposes it to be a question, on
which judges would differ, whether the subsequent words were merely
directory or descriptive. A perfect property in the specific thing was supposed
by that judge to have been given by other words, and on that idea his decree is
declared to have been formed.

75

But in the case under consideration no property in the specific thing is

supposed to have been given by other words. No title to it is created by any
other part of the act. The purchase of the land warrant gave a power to
appropriate, but was no appropriation, and the mode pointed out by the

legislature would seem to the court to be that which can alone give title to the
particular lands.
76

But if this opinion should even be too strict, if an act entirely equivalent to an
entry could be received as a substitute for one, a survey does not appear to be
such an act, nor does it seem to have been so considered by the legislature.

77

From the circumstances under which the act for establishing the land office
was passed, as well as from the expressions of that act, it is apparent that the
entry was intended to give complete notice to other purchasers that the land
located was already appropriated. The mode of giving this notice it was
certainly proper to prescribe. By doing so, the numerous doubts and questions
concerning the sufficiency of notice, which would inevitably arise from leaving
that important fact to the discretion of individuals in the first instance, and then
to the discretion of courts to be exercised many years after all the lands should
be located, would be in a considerable degree obviated.

78

It was doubtless an important object to obviate them.

79

The regulations therefore respecting entries are all calculated to make them as
notorious as possible. Not so of surveys.

80

The entries and surveys are to be kept in separate books. Why so if a survey
amounted to an entry?

81

The entry must be dated when made by the locator; but the time of recording a
survey may appear or not at the discretion of the surveyor, and a subsequent
survey may be recorded before one of prior date.

82

There are to be no blanks in the book of entries, and this regulation is well
calculated for the prevention of frauds in the origin of titles. It does not apply to
the book of surveys.

83

The book of entries is open to the inspection of every person. The book of
surveys cannot be looked into but at the discretion of the surveyor.

84

If a prior entry be alleged, the person affected thereby has a right to demand a
copy thereof; but no copy of a survey can be given to any other than the
proprietor until twelve months after it shall have been made.

85

From the whole act a legislative intention to make an entry, and an entry only,
the foundation of title to any particular tract of land is strongly to be inferred,
and if even an equivalent act could be received, a survey does not appear to be
such an act. In this particular case it is true that complete notice was obtained
by it, but titles must rest on general principles, and in the general, a survey
would not, without something more than the law requires, be notice. The law,
therefore, cannot contemplate a survey as of equal operation with an entry.

86

A question has been made at the bar, whether a caveat is in the nature of an
equitable action, and on the supposition that it is of that nature, the counsel for
the defendant in error has insisted that Wilson, having express notice of
Mason's survey, was unable to acquire title to the land appropriated by that
survey.

87

This would be true if the survey gave to Mason any title either in law or equity.
But if a survey without an entry was no appropriationif it gave no titlethen
notice of the survey could not create a title.

88

The doctrine of notice is well established. He who acquires a legal title, having
notice of the prior equity of another, becomes a trustee for that other to the
extent of his equity. But if he has no equity, then there is nothing for which the
purchaser of the legal estate can be a trustee.

89

A point in the case still remains which appears more doubtful, and concerning
which very considerable difficulties have been felt.

90

Although Mason's survey may give him no title, it is questioned whether

Wilson can maintain a caveat against it.

91

The caveat is a remedy given to prevent a patent from issuing in certain cases
where the directions of the law have been violated to the injury of the
commonwealth, or where some other person hath a better right. The case before
the court is that of a better right. The terms in which this remedy is accorded to
the person who would avail himself of it for the purpose of asserting his own
title are, '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,' &c.

92

Considerable doubts were entertained whether the word 'hath,' in the

description of the character by whom a caveat might be maintained, did not

absolutely require that the better right should exist at the time the survey should
be obtained. This construction, to which some of the court were at first greatly
inclined, would have involved considerable inconvenience, and would have
defeated what is deemed the essential object for which the remedy was given.
93

It has been already stated to be the opinion of the court, that a survey not
founded on an entry is a void act and constitutes no title whatever.
Consequently the land so surveyed remains vacant and liable to be appropriated
by any person holding a land warrant. It is difficult to conceive that a remedy,
designed to enable an individual who has made his entry in conformity with the
law to prevent another from obtaining a grant for the land he has entered,
should be withheld from any person whose entry entitles him to the land he has
located. It is not less difficult to impute to the legislature an intention to protect
a survey to which the law denies all power of appropriating the land it
comprehends, or an intention of carrying such survey into grant, while another
has legally appropriated to himself the land thus to be granted. It would be
difficult to state a case to which the principle, that a remedy should be so
extended as to meet the mischief, would apply more forcibly than to this. If
however the terms of the law had been explicit, those terms must have
controlled the subject. But the expression of the act is not, if any person shall
obtain a survey to which another at the time such survey may be obtained shall
have by law a better right, the person having such better right may enter a
caveat, &c. The words of the law are not thus express. They are, if any person
shall obtain a survey of land to which another hath by law a better right. The
word hath in its most strict and rigid sense would refer neither to the time of
making the survey, nor or of entering the caveat, but to the present moment
when the word is used, and would require that the better right should exist at
the time of the passage of the act. This construction would be universally
rejected as absurd, and all would expect the court to understand the words more
liberally, and to expound them so as to give some effect to the legislative will.
Some latitude of construction then must be used, some words additional to
those used by the legislature must be understood, and this being apparent, the
court perceive no sufficient motive for extending the remedy to rights existing
when the survey shall be made, and denying it to those which are equally valid
and which exist when the caveat may be entered.

94

The caveat entered by Wilson is therefore maintainable under the land law of
Virginia, since his title had accrued when it was entered.

95

The court is of opinion that the district court of Kentucky has erred in deciding
that the defendant in error hath the better right, and that their judgment ought to
be reversed and annulled. In pursuance of this opinion I am directed to deliver

the following judgment.

96

JUDGMENT OF THE COURT. Whereupon it is considered by the court that

the plaintiff Wilson hath by law the better right to the land in controversy, and
that the judgment of the court of the United States for the district of Kentucky
be reversed and annulled; and that the register of the land office in Kentucky do
issue a grant to the said Wilson upon his survey of 30,000 acres of land
registered in the said office, according to the metes and bounds thereof, and that
the said plaintiff do also recover his costs expended in this court, and in the
said district court, all which is ordered to be certified to the said district court,
and to the said register of the land office accordingly.

97

In the case of Mason v. Wilson, the judgment of the court was that the
defendant Wilson hath by law the better right to the land in controversey, and
that the judgment of the court of the United States for the district of Kentucky
be reversed and annulled; and that the said caveat be dismissed, and that the
defendant Wilson recover his costs, &c.