Esq., one of the judges, dissenting from the court, delivered the following opinion, to-wit:
The errors stated and relied on by the counsel for the complainant, are:
First. That the service stated in the certificate did by law entitle the complainant to his settlement and pre-emption'.
Second. That the certificate of the commissioners ought to be considered as conclusive and final.
The counsel for the complainant in order to prove that he is entitled to a settlement and pre-emption, have contended that the first part of the declaratory clause, viz : raising corn, must by gram*301matical construction bo applied to the actual settler, and that one year’s residence alone, without having made any actual settlement or raised a crop of corn in the country, was sufficient under the law, to entitle a man to a settlement and pre-emption ; indeed it was contended that each part of the declaratory clause must be indifferently applied to each kind of settler.
I do not think it material to inquire into the grammatical construction of this declaratory clause. My object is to find out the meaning of the legislature, and if in expressing their meaning, they have been guilty of grammatical inaccuracy, yet I believe it has never been known, that a grammatical inaccuracy has such weight as to destroy the meaning and intention of an act of parliament, when that moaning and intention is to bo collected from the general scope, and the particular expressions of the act.
There are two descriptions of persons only entitled to settlements and pre-emptions, to-wit, the actual settler and the villager. The actual settler who had really and bona fide settled himself or his familjq or at his costs had settled others, on any waste or unappropriated lands on the western waters, is allowed for every family so settled 400 acres of land to include such settlement.
The villager who for greater safety had settled himself in a village or township, under some agreement, etc., and had from necessity cultivated a piece of ground adjoining his village, in common with the other villagers, is allowed the like quantity of land, as is before allowed to the actual settler; but it is land to which no other person has by the act a right of pre-emption. And to prevent doubts concerning settlements, the legislature has declared that no family shall be entitl&d to the allowance granted to settlers, unless they had made a crop of corn in the country, and resided in it at least one year, since the time of their settlement.
It appears to me that there is a very important difference, in the nature of the allowances granted to the different kinds of these settlers which makes it impossible that the legislature should have intended by the declaratory clause, to refer the services therein mentioned to each kind of settlor indifferently. And if that is impossible without confounding claims which are essentially different, it remains to be considered, in what manner the different parts of the*declaratory clause are to be applied to the different kinds of settlers.
If raising a crop of corn is to be applied as the counsel for the complainant contend, to the actual settler, how has it happened *302that the commissioners have granted certificates to persons for raising corn in the country, who never made or claimed actual settlements, and in whose certificates no services but that of raising corn is expressed ?
Iiow has it happened too, that raising a crop of corn only, has been universally considered from the sitting of the commissioners to the present day as giving no other than a village right? If raising a crop of corn in the country will entitle a man to either an actual settlement or village right at his option, it is destroying the distinction the law has made between the two rights, and putting them upon an equal footing, which the legislature never' intended. The law says, that 400 acres of land shall bo allowed the actual settler to include his settlement, and that the like quantity of land shall bo allowed the villager to which no other person hath the right of pre-emption, thereby making the pre-emption dependent upon the actual settlement, superior to the settlement right of the villager; a distinction which the actual settler will think well worth preserving.
If raising a crop of corn in the country, is to be applied to the actual settler, then it is clear that all decisions given by the court in this country, where village claims were contested, have been given upon improper principles, because in all such contests, the right of the party arising from his having raised a crop of corn in the country has been universally deterniined a village right, and no other. Again, if raising a crop of corn should be applied to the villager, as it has uniformly been, and residing one year in the country without having performed any service mentioned in the law, would also entitle a man to a village right, the actual settlor who seems to have been one of the first objects of the legislature’s attention, is altogether excluded, for the latter part of the declaratory clause can not give both an actual settlement and a village right, for the reasons already given, that it would be confounding the two claims, and putting them upon an equal footing, when the legislature has made a clear and an important distinction between them. But if raising a crop of corn is applied to the villager, and one year’s residence to the actual settler (however ungrammatical this may be), the declaratory clause will then embrace no other description of persons, than the enacting parts of the law. All the decisions on those rights will have been given on proper principles, and I am of opinion the intention of the legislature will have been fully complied with.
*303The complainant’s certificate states that he is entitled, for improving the land and residing in the country over since the year 1775. It is universally conceded that improving land where there was no actual settlement made, though a,proper and legal foundation for a pre-emption, is not for a settlement; and I have endeavored to prove that residence alone, for a year, or any longer time, can not give a right to a settlement and pre-emption under the law, because if it could, it must be a village right; and as raising a crop of corn in the country has also, by universal consent, been considered as a village right, the consequence of such a construction must unavoidably be that the actual settler is either excluded by the declaratory clause, or that.the same service which entitled a man to a village right, would also have entitled him to an actual settlement right, which, for the reasons before given, is so glaringly absurd that the legislature could never have intended it. But the counsel for the complainant contend that the commissioners have put such a construction upon the law, and that all the world is bound by it. To prove this, the cotemporanea expositio is resorted to. Ootemporanea expositio est fortissimo in lege, says the maxim, agreeably to which it has become a settled rule, in the construction of statutes, that great regard ought, in construing a statute, to be paid to the construction which the sages of the law, who lived about the time, or soon after it was made, put upon it, because they-were best able to judge of the intention of the makers.
To make the application of this rule proper, four things must concur.
First. That the commissioners were uniform in their construction.
Second. That the expressions in the declaratory clause are doubtful.
Third. That we live at a period so remote from the passage of the law that we are not able to judge of the intention of the makers; and
Fourth. That the commissioners were such sages of the law that their construction may with safety be resorted to, and with certainty relied on.
All those things are necessary to the proper application of the before mentioned rule of construction; and as none of them exist in the present case, the rule must be inapplicable.
It is further contended that we are precluded from putting any construction upon this explanatory clause in the act of assembly, *304and to prove this the counsel quotes as a maxim, “That statutes of explanation shall be construed according to the strict words, and not according to intendment.” 19 Yin. 517, Ca. 62. Those are first principles of a science which are indisputable in themselves, and to the self-evidence of which the mind at once yields assent Is this so? Certainly it is not. Because it is impossible that the legislature can so word a law that no unforeseen case shall occur in which their expressions will not be at variance with their intention.
It is not, therefore, a first principle; it is not a self-evident proposition ; neither has it received that uniform assent which is always given to the maxims of any science by its professors; so far from this, it has been repeatedly denied. This appears from the note of a number of cases on the same page of Yiner, cited above ; and in one of those cases, Hobart Ch. Just., denied that statutes of explanation should always be taken literally, for it is impossible that an act of parliament should provide for every inconvenience which happens. But there are still further reasons. It is contrary and inconsistent with several maxims which have never been doubted or contradicted.
“ If divers statutes relate to the same thing, they ought to be all taken into consideration in construing any one of them.” 4 Bac. 646, and the cases there cited.
Now, this maxim and what is contended for are contradictory in terms of meaning. Again, the intention of the makers of a statute ought to be regarded in the construction of the statute, although such construction seem contrary to.the letter of the statute. 4 Bac. 647, 648. This also contradicts the principle laid down on behalf of the complainant. It is unnecessary to pursue those observations so particularly any farther. I will only add in general, that if the explanatory act be beneficial, or remedial, or in furtherance of justice, or'concern the public good; in all such cases it must receive a liberal and equitable construction, even so much so as to restrict or enlarge the words so as best to promote the intent of the legislature with regard to the benefit, remedy, promotion of justice, or object of public good, in their contemplation. 4 Bac. 649, 651. Nor can a court be reasonably confined to mere grammatical expressions or weighing of syllables in the ex2DOsition of a law, except where that law is penal, and even then not to the strictness now contended for. I can not, therefore, admit the soundness of the rule cited for the complainant. But if this principle were *305not contravened by reason, authority, and indisputable maxims, it will not apply to the act under consideration.
This is not an act passed separately and subsequently to a former act, which it is meant to explain. It is one single act, in which there are two sentences in different parts of it, on the construction of which the question arises. It is to be construed, then, by those maxims which really apply, and which ai’e indispensable. One of those has already been cited, “ That the intent of the legislature is to be considered..” Another is, that in the construction of one part of a statute every other part ought to be taken into consideration. Co. Litt. 381. It is by these maxims I have been directed in the construction of this act of assombly. From thence, from the act itself, and from the cause of introducing the declaratory sentence, 1 formed the opinion which I formerly gave and still adhere to. To discover the intent of the legislature, the cause of making, the statute ought to be considered. 4 Bac. 68. Now, the cause in the case under consideration arose from this circumstance. There were persons at that time in this country who had removed hither from motives by no means meritorious; persons who, I have been informed, were usually called outlyer.s; to exclude whom was the object of the declaratory sentence. And this is still more evident from the sentence itself. It is not, as has been argued, merely explanatory. It is restrictive.
The act provides that, to prevent doubts concerning settlements, it is hereby declared that no family shall be entitled to the allowance granted to settlors by this act, xxnless they have made a crop of corn in that country, and resided, etc. This is evidently meant not to explain and extend, but. to limit and restrain the former expression in the act. No conclusion can be drawn from the argument that other occupations might be equally meritorious.
The evident intent to exclude even actxxal settlers, unless they had resided in the country at least one year after the time of their settlement, shows the clause or sentence to be restrictive, and that the legislature meant to confine their donation to the persons particularly described in the law; and it is further observed that this reasoning can not in any way affect the distinction between actual settlers and villagers, a distinction uniformly made by common opinion, the evident intention of the legislature, and all the judicial decisions in such cases.
The second error assigned is, that the certificate of the commis*306sioners ought to be considered as conclusive and final. Upon this error I refer to the reasoning upon the second question, stated in the decree of the court, and will make a few additional observations. It was admitted by the complainant’s counsel, in their argument on the rehearing, that if the commissioners exceeded their jurisdiction, their sentence was a nullity, as if they had granted a man a certificate for a settlement and pre-emption for military service; and also that the court might set aside a certificate, though legal on the face of it, if fraudulently obtained, as in the case of Briscoe v. Speed.
From this admission I think it may be fairly concluded that the commissioners, in granting a certificate to the complainant for services not specified in the law, have as much exceeded their jurisdiction as if they had granted him a certificate for military service, and consequently that the jurisdiction of this court may as properly be exercised in setting the certificate aside in one case as in the other. Though the general principle is acknowledged to be right, yet, in the present case, it is said that the complainant having obtained the first certificate from the commissioners, and having, by his location, appropriated the land in contest, the •defendant is precluded from contesting his certificate, though it should manifestly appear illegal.
It is said, too, that if any person had a vested right to land under the law, when a certificate was illegally obtained for the same land' by another, that the person having the vested right would have the privilege of contesting the certificate. The law, I conceive, vested in every villager a right to 400 acres of land and the preemption of 1,000 acres adjoining it. This right I say was vested in every villager on the passage of the law for adjusting and settling the titles of claimers to unpatented lands, etc., and though he was not confined to a particular spot, like the actual settler, yet his right being vested, all that was necessary for him to do was to satisfy the commissioners that he was entitled to the benefit of the law, and then to designate the particular spot he chose by his location; this was one step among many others which the law required to perfect his title. As then he undoubtedly had a vested right, immediately after the passage of the law, every certificate granted by the commissioners to persons not entitled under the law, must operate to the injury of - the legal claimant, because it was taking so much of the unappropriated land, in which he had a vested pight, and giving it to those who, under the law, had *307no right at all. The legislature, in restricting the villager to unappropriated lands, could never have contemplated that restriction as extending to lands which had been fraudulently or illegally appropriated; inasmuch, therefore, as the legal claimant has paid his money to the commonwealth, has complied with all the requisitions of the law, and has obtained a fair, just, and honest title, reason, justice, and equity, all deelar'e that the legal claimant shall be preferred to the illegal one, whether he obtained the first or last certificate, for no grant of a certificate by the commissioners to a person not entitled by law, no subsequent ratification of the commonwealth, can sanctify a fraud practiced on a man having a vested right under the law at the commencement of the fraud.
For the reasons which I have now given, and for those contained in the former decree of the court, I am clearly of opinion that the complainant’s certificate is illegal upon the face of it.
The state of the case, then, is concisely this: The complainant obtained from the commissioners a certificate of his right to a settlement and pre-emption for services which, under the law, did not entitle him. The defendant also obtained from the commissioners a certificate of his right to a settlement and pre-emption, for services which did entitle him. Both complainant and defendant claim the same land; the complainant having obtained the first certificate and the defendant the elder patent, and consequently holding a clear right at common law. In this situation the complainant applies to a court of chancery to compel.the defendant to convey him his legal title to the land in contest.' And this brings me to the third head of the former decree, to which I shall add but very little. The counsel for the complainant have contended that the commissioners were a court of special but unlimited jurisdiction, and have likened their certificates to the decrees of the spiritual courts, etc. There appears to be a considerable difference between the constitution of the court of commissioners and those courts to which it has been likened. But I am not investigating this subject, it being clear, from the authorities cited by the complainant’s counsel, that if their position were right, yet still this bill ought to be dismissed. The caso of Nelson v. Oldham, in 2 Tern. 76, is expressly in point.
The chancellor in that case says that a will gained by restraint and force on the party, being proved in the spiritual court, that matter was not to be controverted in equity; the plaintiff might make the best she could of bpr probate there, but shoqlcl have no *308aid from chancery, and therefore dismissed the bill. Therefore, on the whole I am of opinion, that the former decree of the court ought to stand confirmed and unaltered.
Nicholas for the defendants. From the particular situation of this cause, little argument had been had on the points now to be submitted to the court.*308A rehearing was prayed by the attorneys for the defendants, who gave the following certificate of errors :
First. That the decree, after stating that the complainant was bound by the alteration made in his location with the surveyor, declares that he was at liberty to disregard the call made in his entry with the. surveyor for Douglass’ line.
Second. That the decree is founded in part on the supposed weak- ■ ness of the defendant’s claim to that part of the land, whereas the complainant ought to recover by the strength of his own claim, or the defendant’s legal title remain unimpeached.
Third. That it is inconsistent to suppose that the complainant was mistaken in the true situation of Douglass’ line, which makes one of the calls of his own entry.
Fourth. That the complainant ought to have been compelled to survey so as to adjojn Douglass’ line.
Fifth. That the decree goes upon a mistake in a material fact, that “ from the surveyor’s report it farther appears, that should the complainant’s .survey be made more strictly conformably to the calls of his entry, it would still include the same land, so far as the defendants are interested, which he has surveyed; ” whereas, the fact is that if he had surveyed in that manner, his claim would not have covered a part of the land to which the defendants, and particularly the defendant Keene, now has the legal title.
Sixth. That the decree has declared that the complainant’s claim is surveyed properly; whereas, even if the call for Douglass’ lino was to be rejected, his claim has been surveyed contrary to law.
And the court directed the s^id cause to be reheard at the next term.
But before the same was argued the original jurisdiction of the court of appeals was taken away, and the cause was sent to the district court, held in Bexington, to be tried on the said certificate of errors.
It was tried at the said district court, at the-term, in the year 1798, but no alteration made in the decree.
And from the decree of the district court the defendants prayed and obtained an appeal.
The appeal was argued at the-term, in the year 179
McConnell has' the legal estate in him; Kenton has an inferior legal estate, and a superior equity, as the court say, to part of this' land; but he can recover none of it unless he can show both a legal and an equitable right to that part, because until he does this, McConnell’s elder legal right will be sufficient to protect him; and however weak McConnell’s claim may be, Kenton must recover on his own strength, not on McConnell’s weakness. Both decrees have given Kenton all the land he claims, which interferes with McConnell, and these decrees have asserted that Kenton has surveyed exactly right; to ascertain whether he has actually done so, it will be necessary to inquire: First. IIow he ought to have surveyed under his certificate with the commissioners? Second. How under his entry with the surveyor? And Third. To'apply the doctrino arising from these inquiries to the decrees under consideration. First. How ought Kenton to have surve'd under his certificate with the commissioners ? It has three calls in it: First. To lie on Elkhorn. Second. To adjoin Preston’s survey on the south-west side; and Third. To include his improvement. The first call (to lie on Elkhorn) must be rejected, because it is altogether repugnant to and inconsistent with the others, and therefore can not be complied with. The second, to adjoin Preston’s survey on the south-west side. Preston has a survey there, and that survey is adjoined on the the south-west side, and that survey was on record, a copy of which record was then before the commissioners, showing its quantity, its figure, and the length of its lines. How, then, ought he to adjoin the south-west side of this survey, in part, or the whole length of it? Not in part, because it would be impossible to say, from the location, what that part of it ought to be; and- because it would be contraiy to the express words of the location, which calls to lie on the south-west side of the survey, which must mean the whole length of that side of the survey. The reason of this is so plain and obvious that it is sufficient to state it without enlarging on it. The general consent of all persons interested in land disputes has fixed it as an undeniable principle that where a location calls to adjoin a line, or a side of a survey, without pointing out any particular part of it, that it must join the whole length of that line or side. The decisions of our courts on this subject have been numberless, also; and the decision given by the court of appeals in Yirginia, in the appeal Briscoe v. Swearingem, fully establishes the principle that when you call to lie on a particular line or side of a survey, that you must occupy the whole of that side, and are not at liberty to extend your survey further than the course of the line called for, or to. abridge the length of that line in your survey. This is the general rule respecting the joining the side or line of a survey called for, but like every other general rule, it has its exceptions; but those exceptions, instead of weakening, strengthen and prove the rule. One of these exceptions is, where the side or line of the survey is so long that you can not join the whole length of it with your entry; in that case, rather than destroy the claim altogether, the court would place it in a reasonable manner on a part of the line, or by putting it at equal distances from the ends of that line; but as this would bo contrary to the words of the location, it ought never to be done but from necessity, and when the side or line is so long that it can not be joined its whole length. This survey of Preston’s, which Kenton calls for, was on record; that record was on the commissioners’ table when the certificate was granted; that survey was for 1,000 acres, and the line and side of that survey which is called for, is by that record 440 poles long : this lino when applied to a survey of 400 acres would give a figure of 440 poles by 145J, not three times as long as wide. So far then from its being impossible to join Preston’s survey the whole length of the south-west side, it may be done with convenience ; it will leave Kenton 400 acres in a very reasonable and good form; and therefore there was no reason to say that in this case the general rule should not' be complied with, by making them join the whole length of that side of the survey. Third call, to include his improvement. ■ In considering this call it will be proper : First. To establish whether Kenton had any improvement on this land, and which is Kenton’s improvement. And Second. To point out the legal consequences of that call, from the relative situation of that improvement to Preston’s south-west side. First. Where was Kenton’s improvement ? The certificate is to include his improvement; the entry with the surveyor does not call to. include it; the bill does not state that Kenton had made any improvement on the ground, or the situation of any improvement claimed by him; and the decree does not state that it was proved that Kenton had any improvement on the ground; neither does the decree say that his mode of surveying is justified by the situation of his improvement, but is silent upon the subject of the improvement altogether. As therefore this cause came before the court of appeals under its original jurisdiction ; as the matter of fact was submitted to the court, and the trial by jury waived by consent of the parties, the decree not mentioning the fact of Kenton’s having an improvement as being proved, it shall be considered as not having been proved at all. 2 Com. 318 ; 1 Yern. 214. - And this is more particularly right under our constitution, which says that the court shall “on the conclusion of every cause, state on the record the whole merits of the cause, the questions arising therefrom, the opinion of the court thereupon, and a summary of the reasons of the court in support of those opinions1:” I have therefore a right to conclude, that as the decree does not state it as a fact proved to the satisfaction of the court, that Kenton had an improvement on this land, that it was not. proved to their satisfaction that he had, that as the decree does not justify his mode of surveying at all from the situation of any improvement claimed by him, that the existence or situation of such improvement, had no influence in the making of the decree, and ought to have no weight in the rehearing of that decree. But admitting for argument’s sake, that it is now proper and necessary, notwithstanding the silence of the decree on the subject, to ascertain the real situation of the improvement; it can only be done by resorting to the exhibits and proofs in the cause. Three improvements are laid .down on the connected plat. No. 1 called the Blue spring. 2, Lyon’s spring, and 3, Keene’s spring ; and the surveyor in the report says he laid down by the direction of Kenton, Lyon’s spring at 2, and by direction of the defendant, the Blue spring at 1, and Keene’s spring at 3 ; and from a recurrence to the testimony, it will appear that Kenton brought forward the testimony of Samuel Johnston and William Stevenson, to show that he made some improvement December, 1779, and February, Í780j át Lyon’s spbing át 2. I am therefore authorized in saying, that if Kenton had any improvement on the ground it was at Lyon’s spring at 2. This will bring-me to consider, Second. The legal consequences the call to include this improvement must have, when its relative situation as to the south-west side of Preston’s survey is taken into consideration. There are many different ways in which an improvement-called for in a location, may bo included in a survey; and the most proper way of doing it must be settled by the other parts of the location ; if the call to include the improvement is accompanied with no other call which explains or restricts this call, the survey should be made in a square, with the lines running to the cardinal points, and the improvement in the center of that square; where the call is to include the improvement and to run a particular course for quantity, the survey ought to be in a square with the improvement in the center of the boundary opposite to the course called for, and the improvement to be barely included in the survey. See the case Miller's heirs v. Fox’s heirs, ante, p. 100. Where an entry calls for a dividing line, and another entry or survey, and also to include an improvement, it is proper to consider that dividing line as established, and to run from the whole length of that line, so as to include the land as nearly as can be in a square, and also to include the improvement; but it is not necessary that the improvement shall in that case be in the center. This last is exactly Kenton’s case; Kenton calls to adjoin a fixed and established line, and also to include his improvement, and as the improvement is so situated, that he may adjoin that line and also include the improvement by running at right angles from the course of that lino for his quantity; he ought to have surveyed in that manner, and it is immaterial in what part of the survey, the mode of surveying would have placed the improvement. And as this line of Preston’s was of such a length as would admit of its being joined by Kenton from end to end, and also include his improvement in his survey.; the calls to include his improvement did (from the situation of his improvement) make no change whatever in the location with the commissioners, as it would have stood without this call. But admitting that Preston’s line had been so long that he could not have adjoined it, and also have included his improvement, he ought then to have surveyed in a square to adjoin that line, and running at right angles from? the course of it, including the improvement in the center between the eastern and western boundaries. See the case of Sinclair v. Singleton, ante, p. 176. How ought Kenton to have surveyed under his entry with the surveyor ? “ Simon Kenton enters 400 acres by virtue of a certificate, etc., lying on Elkhorn in the corner between Preston’s survey at-the Cave spring and Douglass’ line.” The court in their decree say, “ the words in the entry in the corner between Col. Preston’s survey and Douglass’ line contain an explanation of his location with the commissioners, which is a material addition thereto, and ought to be considered as having the same effects as an amendment to any other location: the owner is bound by it, and all subsequent locators.” This part of the decree contains two propositions. First. That the entry makes a material alteration in the location with the commissioners. And Second. That Kenton is bound by that alteration. It will be necessary therefore, to ascertain the true meaning of the entry, and to ascertain how far that alteration does extend. In doing this we should still bear in memory that by the location with the commissioners, Kenton ought to have adjoined the whole length of Preston’s line. First. What then was the object of the amendment? Was it to carry his land further north ? No, he was bounded by Preston on that side. Was it to go farther west? It was not; because the corner and the line called for, were to the east.' Was it to go farther south ? No, because he was bounded to the north by Preston, if the alteration made in the survey was to carry him further east, it must necessarily lessen the distance to the south. Besides the objects called for wTere in the east, and therefore the intention of the entry, if it made any alteration in the location, must have been to extend Kenton’s land further east. The court admit, in their deci’ee, Kenton’s entry with the surveyor, where it calls to be in the corner between Col, Preston’s survey and Douglass’ line, contains an explanation of his location with the commissioners, which is a material addition thereto, and ought to be considered as binding on Kenton-as an amendment to his location. ■ It will be necessary then to consider the amendment. First. What was the intention of the location. And Second. How fai* that intention can and ought to be complied with. Kenton by his location with the commissioners had called “ to join Col. Preston’s survey on the south-west side.” By his entry with the surveyor, he called “to lie in the corner between Preston’s survey and Douglass’ line.” In what does the material change and addition consist, which is made by this location with the surveyor? He is still to join Preston, but he is also to join Douglass’ line, so that the adjoining of Douglass’ line is the change which is made in the location by the entry with the surveyor, and the adjoining of that line is the object, the end of the location. The corner is only a description, or means used to carry them to that end. Such a construction ought to be put on the entry as will best effectuate the intention of the entry, but in this nor in any other case ought the end to be sacrificed to the means; and the great and manifest object being to join Douglass’ as well as Preston’s lines, it ought to be complied with, although they do not intersect, so as to form what is strictly speaking a corner; and if this is the true construction of the location, the court have said that it is binding on Kenton; but Kenton has not gone any nearer to Douglass’ line than Preston’s corner, and yet the court say that Kenton has surveyed properly. To determine whether he has or not I will First. Examine the reasons given by the court, and show that they are not well founded. And Second,. Prove that admitting all the reasons to be good, the inference drawn from them “that the survey is legally made," is not a proper or a legal one. First. I will examine the reasons of the court. “ The only doubt arises from his not having adjoined Douglass’ line, but as he calls for the corner between Col. Preston’s survey and Douglass’ line, and it appearing that Preston’s survey was on record, and that there was no record of Douglass’ line, but only that there was a line known to many persons by that name. “It seems evident, that the complainant supposed Douglass’ line run off from the corner of Preston’s survey, and in that way formed a corner in which he was mistaken. “ Therefore the court is of opinion, that if the complainant had extended his survey further toward Douglass’ line than the corner of Preston’s survey, that it would have been contrary to the apparent intention of his entry; and from the surveyor’s report it further appears that should the complainant’s survey be made more strictly conformable to the other calls of his entry, it would still include the same land so far as the defendants are interested, which he has surveyed.” The first part of the reasoning is not just, and the' court are mistaken in point of fact. Ward’s survey, so called on the plat, was called Douglass’, because it ran by him and was to be found on the same record with Preston’s. They were both before the commissioners, and Kenton must have been particularly well acquainted with it, for he not only knew whose survey it was, but by whom it was made, and speaking of the two you may observe the difference of expression, Preston’s survey and Pouglass’ line, that is a line made by him. That the line, was known to'many persons as Douglass’ line was sufficient; a name gained by reputation will answer as well as a call, as the true name, but if not sufficient against all the world, it must be binding on him who uses it. Kenton, by calling for this line, must be considered as having full notice of every thing relating to it. He who calls for a deed has notice of the" contents of it, nay farther, he has notice of the contents of a deed referred to by the deed he does call for. I do not see how it is evident that Kenton supposed Douglass’ line did run off from the corner, of Preston’s survey. The entry calls to lie in the corner made by, or to lie between the claims. The corners of the two are opposite, why then is it evident, as the court say, that Kenton supposed that Douglass’ line run from Preston’s corner, any more than that Preston’s run off from Ward’s corner? But the court also say Kenton was mistaken. If he was, it was his own blunder, and in the description of his own entry. The substantial call of the entry was for Douglass’ line: the corner, the form or manner only, let the corner be rejected and let him adjoin Preston and Douglass. If it was necessary the court would supply a line from Preston’s to Douglass’ corner to effectuate the manifest intention of the entry to join Douglass’ line. See the case of Smith v. May and Curd.1 In that case' there was an interval and no eastwardly lino to the creek. Here the lines do not intersect. There Smith was allowed to run to the creek without such a line of Williams’ as was called for, because it was his obvious intention to go to the creek, and there the court rejected the call for Williams’ east line and supplied aline not called for. So here he should go to Douglass’ line, although it does uot intersect, "because it was his obvious intention to lie on that line. There is no more rejected, or supplied, here than there. If the joining Douglass’ line was the real object of the entry, Kenton destroys his own claim if he proves it can not he done, because it is the call of his entry, and he is complainant in chancery against a legal title. But the fact is, that it may he done and the survey made in a very good form, as it is only 351^- poles from Kenton’s improvement, at Lyon’s spring, to that part of Douglass’ line, which is opposite to it. Again, the court say that the entry with the surveyor has made a material change in the location with the commissioners. If this is so, Kenton must have known that Douglass’ and Preston’s lines did not intersect, because if they did, there was no change in the location with the commissioners, as by it he was to join Preston the whole length of his line, and in doing so he must also join Douglass. And, supposing Kenton to be informed of the true situation of Douglass (which ought to be supposed), then his entry with the surveyor may have its spirit fully complied with by joining both claims, although they do not, technically speaking, make a corner; and the technical phrase must always give way to the real intent "even in deeds, much more so in entries. Kenton ought, therefore, to have gone to Douglass’ line, and not have stopped at Preston’s corner. It is impossible that, if he had surveyed strictly conformably to entry, that he would cover the same land. Because, as the surveying more strictly agreeably to location would extend the survey further east or west, or both east and west, it would necessarily curtail it to the south, and therefore, if altered either way, it would not cover the same land. But if the decree meant that it would cover the same quantity of land that it now does of what is held by the defendant, the decree is unquestionably erroneous. First. Upon general principles. Second. Upon the particular circumstances of the cases. First. Upon general principles. Both Kenton’s and McConnell’s claims are patented. McConnell has the eldest patent, and Kenton is complainant in chancery. ■ ^ Therefore, let Kenton’s equitable right be what it may, he is now precluded from claiming any land that is not included in his patent, and, of consequence, if he had left out of his patent 100 acres of land, held by McConnell’s elder patent, to which Kenton had a superior equitable right, and had included only 10 acres, to which he had no equitable right, and McConnell had only a legal right, Kenton could, not recover either the 100 acres or the 10, and he could not balance his want of equity to the Í0 by his original equitable claim to the 100, because he had given uj> his equitable claim to the 100 by excluding it from his patent, and by including in his patent the whole quantity to which he was entitled without, and independent of that 100 acres. This doctrine is right. First. Upon general principles of equity; and, Second. Upon the particular circumstances of the-case. First. Upon general principles. N o complainant can recover against a legal title any thing to which he has not a superior title; each acre should be considered as a distinct tract, and he can no more recover one acre to which he has not an equitable title, than he could have recovered at all, if he had had no equitable title to any part of the land. From this maxim, that no man shall be admitted to take advantage of his own wrong; now if there is no other claim to that part of the land which is out of McConnell’s claim, and which Kenton has included in his patent contrary to location ; Kenton’s claim to that land would be good against the commonwealth, whereas he may have given way as to the 100 acres by his mariner of surveying to a better claim ; and then he would by his erroneous manner of surveying, not only get other land, but also more land than he was entitled to by his location ; and in either case it would be allowing him to receive a benefit from his own wrong. Therefore it would be wrong, independent of the injury to the defendant. But it would, also, be injurious to the defendant on general principles, if the court should decree to Kenton the 10 acres to which he had no equitable claim, because he once had an equitable claim to the 100, which claim he has since relinquished. McConnell might hereafter have the 100 acres also taken from him by a third claim, and then he would lose both the 10 and the 100; therefore, upon general principles, Kenton can not recover any one foot of the land, unless it is. included in his patent, and unless he also has superior equitable claim on it to that of McConnell’s. But it would also be wrong to make such a decree in Kehton’s favor. Second. Under the peculiar circumstances of this case. There are two defendants in this case. McConnell, the original patentee, Keene the purchaser from him; they hold by distinct moieties; Kenton recovers against McConnell, because his claim was superior in point of equity to his; and of Keene, because he had notice of his claim before he purchased of McConnell; but if he takes from either of them more land, or other land than he has a real equitable claim to, injustice will be done to one or both of the defendants, even if upon the whole Kenton gets no more land than he was really entitled to f, om both ; if he takes too much from McConnell, he would lose bird instead of being answerable to Keene for damages under his warranty only. And he might lose a particular part of the land to which his title was good, where it was from, quality or other circumstances more valuable than any other part of the land.' If he takes too much from Keene, the injury might be much greater ; his legal title ought to give way only to the real equitable title of Kenton, of which he had notice. Take more from him, and he is not only deprived of his land to which hedías a right, but is turned over to McConnell for damages, which from the nature of his‘warranty may not be equal to the value of his land ; but also for damages which McConnell may not be able to pay. Besides if the defendants, or either of them, hold black acre and white acre, and Kenton is entitled to black acre, the court can no more from an idea of equality in value decree white acre to him than they could decree to him both black acre and white acre, if he had no claim to either; the sacredness of the rights of property, and the want of legal power in the court would equally forbid it. I am therefore warranted in saying that this part of the decree must be erroneous. I will now, Second. Show that admitting all the reasons assigned by the court to be just, that Kenton has not surveyed properly; and therefore that the decree saying which part of the land he shall recover is improper. I have already proved that Kenton ought to have joined Preston’s survey the whole length of it; but I will now admit for argument’s sake that ho ought not to have done this, because of the length of that line; and it'will still be evident that his claim is surveyed wrong. The manner of surveying an entry not special in itself, must be determined by some general rule; it is to be done under the legal discretion of this Court, but the court can not arbitrarily depart from the general rules laid down for the construction of such entries any more than they can depart from the special calls of the most special entry. If this doctrine be right, I ask by what general rule it is, that Kenton’s present mode of surveying can be justified ; say that he shall begin at Preston’s south-east corner, and that he shall not go the whole length of his line; and he ought then only to include the improvement at Lyon’s spring, because that would be nearest a square. See the case of Miller’s Heirs v. Fox's Heirs, ante, p. 100. Say (as the fact is), that he was no more confined to the south-east than to the south-west corner, and that the side was too long’to join the whole, and then he ought to have surveyed in a square with the improvement in the center, between the east and west boundaries. See the case of Sinclair v. Singleton, ante, p. 176. But the present mode of surveying can be justified by no rule that I ever heard of. But admitting that the manner of surveying is right, how can the decree be justified which gives Kenton all the land contained in his survey, when there is 18 acres too much in it, and he is complainant in chancery? And Kenton also has 1,133 acres instead of 1,000 in his patent. Breokenridge for the appellee. If Kenton ought to have surveyed, as is contended on the other side, he would have lain at the end of Preston and not on his side. I can not see any error in the decree. . Kenton by his certificate called for Preston, and declared his intention of lying to the south-west of Preston’s survey; when he makes his entry with the suryeyor, he explains what part of Preston’s line he means to adjoin by calling for the corner. If there had been a corner'formed by Douglass’ line, running off from Preston’s corner a southwardly course, there would have been no doubt that Kenton should have surveyed as he has done; there being no corner, Kenton was evidently mistaken, but the call is notwithstanding sufficient evidence that he intended to take the land south-west of Preston, and to adjoin on his south-west line to his southwardly corner. If you arc to give operation to every part of Kenton’s entry, you can not make him adjoin Ward’s or Douglass’ line, for in that case a great part of his claim would not, according to the call, adjoin Preston on the south-west side. By the Court.This being an appeal from a decree of the district court held at Lexington, pronounced in affirmance of a former decree of the court of appeals, and on consideration of errors assigned on behalf of McConnell and Keene; it only appears necessary and proper to examine whether the errors alleged do or do not militate against the last mentioned decree.
As to the first error, there can be no reason why a vague or impossible call in the alteration of a location should not be disregarded more than in an original entry. In either case it ought only to be done from necessity, and then it is warranted by established precedents and the soundest principles of justice.
The import of the second error is hard to be comprehended. This court formerly adjudged that McConnell first acquired a title to the land in contest, subsequent to Kenton’s location with the commissioners and his entry with the surveyor, which taken together included the same land; and it still seems that a comparison of the ages of these claims was indispensable, and that the result is justified by the proofs exhibited at the trial of the cause.
So that the court does not see that the decree in any part is founded on the weakness of McConnell’s title to the land, further than as Kenton’s title was found to be superior to it in point of age.
As to the third error, when a call in an entry or location is rejected on account of its being incompatible with other calls therein, it must always be presumed that the locator was mistaken; and to determine in which call he was mistaken is the only task, which generally is not difficult.
*321On the fourth error, the court would observe that Kenton lo'cated his settlement with the commissioners to adjoin a survey of Col. Preston’s on the south-west side and to include his improvement, and he enters it with the surveyor, to lie in the corner between Preston’s said survey, and Douglass’ line.
And conformably to the decision in the late supreme court, in the suit of Consilla v. Briscoe (ante, p. 84), these locations should be taken as one or to be made to explain each other.
Then Kenton’s settlement is to adjoin Preston’s survey on the south-west side to include his improvement; and to lie in the corner between Preston’s survey and Douglass’ line; from which it is evident that Kenton supposed when he made his entry with the surveyor, that Douglass’ line so extended from Preston’s survey as to form therewith a corner, or an angle. But in this he was mistaken, and therefore the call for Douglass’ line ought to bo rejected.
Moreover, it being found that Douglass’ line is a considerable distance to the south-east from Preston’s survey, and can not be regarded (further than to ascertain what part of Preston’s survey Kenton meant to adjoin) without contravening two other of his calls, to-wit: to adjoin Preston on the south-west side, and to lie in the corner, etc., and for this reason it seems to the court rational that he should begin at the south-east end of Preston’s south-west line, that is to say at the south corner, this being as near Douglass’ line as those other calls last mentioned would permit him to approach it.
To judge of the force of the fifth error, Kenton’s locations must be further investigated. The decree of the court does not expressly state that the improvement called for in Kenton’s location with the commissioners was ascertained; but all the calls in his entries being alluded to, so much is certainly implied, and the court was formerly and is now of opinion, that both the identity and notoriety of his improvement at Lyon’s spring were established by sufficient proofs.
The same proof must now be regarded to attain justice, which seems to bo authorized by the case of Bonham v. Newcomb, Yern. 216, not to say that some of the errors under consideration were intended to be collected from proofs not stated in the decree.
Then from the adjudication of the late supreme court in the case of Smith v. Grimes (ante, p. 35), and from a principle which *322that court and the court of appeals have generally regarded, viz : that all. surveys should be square when a compliance with the entries on which they are founded do not necessarily require them .to be otherwise. Kenton’s survey on his location with the commissioners ought to have been a square (unless the distance of his improvement from Preston’s survey had made it necessary to extend it further), and'have so adjoined Preston’s survey as that the lines at right angles thereto, would be at equal distances from the improvement. But agreeably to Kenton’s entry with the surveyor, and his location with the commissioners takeii as one entry-, and rejecting the call for Douglass’ line, his survey should begin at Preston’s south corner, and extend along that survey northwestwardly so far, that a line at right angles thereto would just include the said improvement, if so' doing would stretch the survey beyond a square, which happens to be the case.
After the foregoing observations, any observation on the sixth error would be superfluous.
The opinion of the court remaining unaltered as to the manner in which the appellee ought to have surveyed his settlement, and as to its superiority to that of the appellants ; it still appears certain from an inspection of the surveyor’s report exhibited in this cause that the said survey would include all the land in contest; and therefore the appellants have not been injured by the manner in which the appellee has surveyed; and it may not be improper to add, that if the ajDpellee’s improvement had been fixed at the Blue spring, as was attempted, it would have produced no change in favor of the appellants. Or if it should be conceded that the appellee has not shown the improvement he calls for, his settlement being a village right, to which an improvement is not essential; that call also ought so be rejected, and his other conrpatible calls only regarded.
Then beginning at the south corner of Preston’s survey, he should only have run so far with his south-west line as to make his settlement a square; and in this way likewise it appears the survey, would include all the land in contest.
Whereupon, it is decreed and ordered, that the said former decrees of this court, and the said decree of the district court in this cause pronounced, do stand confirmed .and unaltered. ' With costs, etc.