case,

JANUARI,

1814,

case, had

Noland

V. Cromwell

ance, which, as I before observed, does not appear to have
have been settled. I am not sensible that this point arises
in this case ; but as it has been mentioned in the argument,
I will give my impressions upon it. The object of the act
of assembly, in requiring locations to be entered in a book to
be kept by the surveyor, is to give notice to subsequent loca-
tors, so as to enable them to locate other warrants on the ad-
jacent residuum, and not to compel a prior locator to attend the
office from time to time, to see if others are making efforts
to deprive him of the incipient title which he hed acquired
by his location. Others are bound by the notice which his
prior location affords, not to disturb his right. Why shall he
suspect them of an intention to invade it? If he has no rea-
son to suspect it, why shall he be compelled to keep watch at
the surveyor's office, for guarding against it? And if he is
not compelled to inspect the surveyor's office, how shall
he be presumed necessarily to have notice of what passes
there? These remarks apply as well to surveys as to loca-
tions. Besides, these subsequent locations are frequently
made so vaguely, that, even when seen and inspected, they af-
ford no evidence of the lands which they are meant to cover.
They therefore can afford no notice that any conflicting claim
is to grow out of them, and, of course, can impose no obliga-
tion to guard against them. On the other hand, a subsequent
location may be made with such precision, as clearly to shew,
that, if. properly surveyed, it would not interfere with a prior
location in the same neighbourhood.

This is much strong-
er than the case of a vague location; for the information it
contains is directly calculated to throw the party off his
guard. The owner of the prior location, in such a case,
availing himself, as he has a right to do, of the time allow-
ed by law to make his survey, and knowing that no person
has a right to interfere with him, reposes in imaginary safety,
The owner of the subsequent location proceeds at once to
make the survey, in his absence, and without the knowledge
of the owner of the prior location ; and, abandoning, by
mistake or design, the calls of his own entry, encroaches up-
on those of the other; and hurrying the survey to the re.

gister's office, procures the patent ; his adversary remaining, in the mean time, in actual ignorance of these transactions. In such a case I should suppose it would be the delight of a court of equity to grant relief, unless restrained by positive law. I perceive nothing in the expressions or policy of the act of assembly, regulating the trials of caveats in the courts of law, which forbids the interference of equity in such a case as that just stated. The act of assembly, it is true, establishes a legal tribunal for the determination of disputes before the patent; but there are no words excluding the jurisdiction which Courts of Chancery may exercise in equitable considerations. On the contrary, the words are permissive only, in relation to the jurisdiction of the court of law. But equity itself, pursuing its own principles, will refuse to interfere in all cases, (except where fraud is involved,) unless the party shews a good reason for having failed to go before the legal tribunal. Its refusal, however, is founded, not on any particular regard to the words or policy of the act of assembly, but upon the general principle regulating Courts of Chancery ; viz. that equity never does grant relief to a man who had a plain and adequate redress at law, unless he shews some good reason why he did not avail himself of that redress. It is admitted by all, that if a man be prevented by fraud or accident from prosecuting a caveat, equity will interfere. I cannot perceive any difference in principle between such cases and that where a man is prevented from filing a caveat by total ignorance of any adversary claim. I do not contend that ignorance of the law will ever avail a man; but I do conceive that ignorance of an opposing claim, in a court of equity, will excuse a man, having better title, for not having taken measures to defeat that claim ; at least in those cases where the law does not presume him to have notice. And the law cannot presume a man to have notice of that, of which the policy of the law has not made it his duty to take notice. But how is a man to avail himself of his ignorance in such cases ? not by proving it; for, being a negative, that is impossible. He must be allowed to suggest it : and that suggestion must be received,

till disproved by proving knowledge upon him. Nor do I JASUANT,

1814. conceive that this opinion is opposed by any thing in the cases heretofore decided in this court. Where the circum

Noland stance is susceptible of proof, proof will be required; but

Cromwell. where, from its nature, it is not susceptible of proof, the suggestion will be sufficient till repelled by testimony. If it be asked, why hold a man to the necessity of averring that which it is not necessary, nor even possible for bim to prove? I answer, that he may have had notice; and unless he avers the contrary, his bill does not, even on its own face, present a case 6t for equitable interference, and would, there. fore, be liable to be dismissed.

To apply these principles to the case now before us. If we consider this bill as on a demurrer, I conceive it makes a good case for the interposition of equity, for it charges a gross fraud on the defendant. But I perceive no other ground which would give the court jurisdiction ; for the complainant suggests no reason, not even want of notice, why he did not pursue his legal remedy.

If we go beyond the bill, and, with the Chancellor, examine the case on its merits, it seems a clear one in favour of the appellee. The jury have found that there was no fraud in obtaining the warrant; and the proofs in the cause are abundant to shew that the survey was actually made, and in strict pursuance of the warrant. In this case, then, the appellee has both law and equity on her side, and the decree ought to be affirmed.

Judge FLEMING. In order to save time, I am requested to report the following opinion, as that of the two senior members of the court, present; and I am authorized by Judge Roane, to say that he perfectly accords with the opinion, as DOW to be delivered.

After the solemn resolution of this court upon the question of jurisdiction, rendered in the case of Johnson v. Brown, which was founded upon former decisions, and particularly upon that in the case of Jones v. Williams; after the accesa sion to this decision by Judge Tucker in the case of Depero

z

VOL. IV,

JANUARY,

1814.

Noland

V.
Cromwell.

v. Howard, on the ground of its being the established law of
the land ; after this rule of property, sanctioned by the opi-
nions of all the successive judges of this court, to the num-
ber of perhaps seven or eight, prior to the present organiza.
tion thereof, had been promulgated as the law of the land;
and hundreds of our citizens may have regulated their trans-
actions thereby; it might have been reasonably supposed,
that the point, at this day, had been at rest.

If there were even error in the opinion of all these
judges; if the solemo decisions of this court, upon the point,
were even replete with error ; that error, upon general prin-
ciples, had better be acquiesced in, than corrected ai this
late day; and, especially, as all the cases probably affected
thereby, are gradually passing out of existence. But no
such error has been committed ; and we owe that deference
to the decisions of former times, that we ought not to sup-
pose that those decisions were rendered without due consider-
ation. We ought rather to admit the possibility of being
ourselves mistaken.

On authority, therefore, the question is irrevocably settled : and on principle also, we think it is rightly settled.

The point seems to be, as thus established, that, although a party may be let into a court of equity, on grounds which he could not have used on the trial of a caveai, and which, in fact, make another case ; (in reference to that which he might have availed himself of on such trial ;) or upon a case suggesting and proving that he was prevented by fraud or accident from prosecuting his caveat ; he is not to be sus. tained in the court of equity, on such grounds as were, or might have been brought forward on the trial of the caveat.

The legislature of this commonwealth having offered for sale a large tract of vacant country, it was important to have the same settled, and the titles thereto quieted, as soon as possible. This is evident, both from the general tenor of the act, from the provision therein for the speedy decision of the whole law and equity of the case, on the trial of the caveat, and from the interdiction therein of the appellate jurisdiction of our courts, by declaring the decision of the ge

the of

de ner

V.

neral court to be final. Every argument founded on a policy JANUARY,

1814. which goes to arrest the

power of the revising tribunals on this subject, (a power in all other civil cases deemed so ne

Noland, cessary and important) would equally go to exclude a mere

Cromwell.
ly concurrent jurisdiction. There is, on the contrary, less
hardship in the latter case than the former; it being entire-
ly just and proper to confine the trial of the same case to one,
instead of various and concurrent jurisdictions. That juris-
diction is the court, constituted by the act for the trial of the
caveat ; and which, quoad such trials, is a court of equity ;

j
and one constituted so as to proceed with great celerity and
dispatch. It would have frustrated all the views of the legis.
lature in this particular, to have let in the jurisdiction of the
ordinary courts of equity, which, from the delays unavoida-
bly incident to their proceedings, would have protracted the
settlement of these controversies to a great distance of time.

As it was the policy of the act to constitute a peculiar
court of equity for the trial of the titles, antecedent to the
emanation of the patent, so it was important in relation to
this extensive country, to act by general rules, and establish
a general criterion, as to notice. The propriety of this policy
has often been affirmed by this court, even in relation to the
territory offered for sale by Lord Fairfax in the Northern
Neck. The provision of the act now in question meant to
prevent and cut up the numberless doubts and disputes, as
to notice, or no notice; and to establish a general criterion,
It is precisely analogous to the provisions of the registration
acts, which, for similar purposes, and to prevent innumera-
ble frauds and perjuries, do not permit any person to aver the
want of notice of a deed which is duly registered. The no.
tice, principally established by the act, is the entry in the
surveyor's book, which is open and accessible to all. The
entry, when followed up by a survey, 'which the law also
provides shall be made shortly thereafter, affords complete
notice of the claim thereby set up, and operates as an invita-
tion to persons having prior pretensions, to bring them for-
ward by way of caveat. Of this survey, it is not competent
to adjacent adventurers to aver an ignorance; botla on ac-

a