U.S. Supreme Court Vowles v. Craig, 12 U.S. 8 Cranch 371 371 (1814)
Vowles v. Craig
12 U.S. (8 Cranch) 371
APPEAL FROM THE CIRCUIT COURT
FOR THE KENTUCKY DISTRICT
If a person who has obtained a survey upon a military land warrant under the Commonwealth of Virginia for two thousand acres sell and transfer, for a valuable consideration, his right to the survey and assign the plat and certificate to the purchaser, whereupon he obtains a patent for the land in his own name, and if, upon a resurvey it appear that the grant conveys two thousand seven hundred acres, the vendor cannot in equity support a claim for the surplus against the vendee.
When an assignment is made of a plat and certificate of survey, the purchaser takes it subject to the risk of its containing a less quantity than is expressed on its face, and should it contain more, he is entitled to it.
This case, as stated by TODD, J., in delivering the opinion of the Court was as follows:
This suit was instituted on the chancery side of the Circuit Court of the United States for the Kentucky District by the complainants, now appellants as the heirs
and legal representatives of Mary Vowles, formerly Mary Frazer.
The bill alleges that in the year 1774, a survey was made for Mary Frazer as heir at law and only daughter of George Frazer, deceased, by virtue of the governor's warrant and agreeable to the royal proclamation of 1763, for 2,000 acres of land in Fincastle County on Elkhorn Creek, the waters of Ohio River. That according to usual and customary allowance made in this as well as other military surveys at that time, a considerable quantity of land over and above 2,000 acres is contained within the actual boundaries. That in the year 1778, whilst the said Mary was a minor, Michael Robinson, as guardian of the said Mary and who had intermarried with he mother, made a contract with the defendants Lewis, Joseph, and Benjamin Craig for the sale of the said 2,000 acres of land surveyed as aforesaid for the said Mary at the price of 30s. per acre, amounting to Ĺ 3,000, which was paid in the depreciated paper currency of Virginia and was of little or no value. That the said Mary was induced to affix her signature to an assignment of the said plat and certificate of survey, which was postdated so as to bear the appearance of its being executed when she was of full age, in consequence of which Lewis Craig obtained a patent for the said land in his own name, and has since conveyed a part thereof to the said Joseph and Benjamin, and under whom the other defendants derive their titles. The prayer of the bill is to vacate the contract and to decree a reconveyance of the land and for general relief.
The answers of the defendants Lewis and Joseph Craig admit the making of the survey, and that it contains a considerable quantity of land within the boundaries more than 2,000 acres.
They admit the contract with Michael Robinson for the purchase of the said survey, but positively deny that it was made in the year 1778, and aver that it was made in 1779. They deny that the contract was for 2,000 acres of land at 30s. per acre, but was for the whole survey at the price of Ĺ 3,000. They also positively deny that the assignment on the plat and certificate of
survey was postdated or that any fraud or misrepresentation was practiced or used relative to the transaction.
The answers of the other defendants are deemed immaterial to the investigation of the questions arising in this case.
The cause was heard in the circuit court upon the bill, answers, depositions and other proofs. The court decreed the bill to be dismissed with costs, from which decree an appeal was taken to this Court.
TODD, J. after stating the case, delivered the opinion of the Court as follows:
In the written arguments submitted by the parties, it is admitted by the counsel for the appellants that the evidence exhibited does not support the allegation in the bill that the assignment was made during the minority of Mary Frazer. This admission renders it unnecessary for the Court to go into a minute examination of the evidence; it will be sufficient to observe that the testimony is clear and satisfactory on this point, and therefore there is no pretense for setting aside the contract and decreeing a reconveyance of the land. But it is contended that the complainants are entitled
to relief in some shape for the surplus land contained within the survey, either by a decree for the reconveyance of the surplus land, by a pecuniary compensation for it according to its present value, or by a pecuniary compensation according to the price at which the land was sold, on which interest should be allowed.
This argument assumes for its basis that there existed a mistake as to the thing sold. If there was a mistake, how did it originate, and who is injured thereby? Was there a mistake? It may be inquired to what quantity of land was Mary Frazer entitled by virtue of the governor's warrant issued in pursuance of the royal proclamation? To two thousand acres. How much did she sell and receive payment for? Two thousand acres. It would appear from this that she had sold and received payment for as much land as she was entitled to. How comes it that this surplus was included in the survey? From the fraud, design, ignorance, or negligence of the surveyor. Who is defrauded or injured thereby? The Commonwealth of Virginia, and not Mary Frazer. For what it is asked that compensation shall be made? For land which, by the fraud, design, ignorance, or negligence of the surveyor, Mary Frazer might by possibility have been entitled to. Was the sale of this survey of a specific quantity at a certain price per acre? or was it a sale of a specific tract? The bill alleges it was of the first description; the answers deny it and say it was of the latter. There is no proof to support the allegation in the bill unless from the survey, a power of attorney, and the receipt for the purchase money, it should be inferred that as they relate to 2,000 acres of land, only that quantity was intended to be included in the sale. But this proof is conceived to furnish a very opposite conclusion, the description and designation of the tract of land sold not as part of a tract, but an entire tract. The answers, being supported by the assignment that it was a sale of the whole survey, and being also responsive to an allegation as well as to an interrogatory in the bill, must be taken as true and conclusive. When an assignment is made of a plat and certificate of survey, the purchaser takes it subject to the risk of its containing a less quantity than is expressed on its face, and should it contain more, he is entitled to it. In the case of Young
v. Craig, decided by the Court of Appeals of Kentucky (a copy of which has been furnished and relied on by each party), the court says
"there was, particularly in the sales made at an early period of this country, great liberality of admeasurement frequently allowed by the seller and expected by the purchaser. Where this was the case, to authorize a conclusion, from the surplus contained in the boundaries of a tract, that there was a mistake of quantity, the surplus ought to be greater than was usual in conveyances made about the same period."
Now it appears from a statement in the bill as well as from the general history of the country that it was usual and customary to make considerable allowance in military surveys, and it is not shown that the surplus in this is greater than in other surveys made about the same time. Again, in the same case, the court proceeds
"It would be obviously improper and unjust to lay down any general rule as to the rate of surplus that would justify an inference of mistake which would deserve correction; each case must depend upon its own particular circumstances; whether such an inference would be authorized in the present case, were the sale in question per acre and not in gross, need not be determined, since we are of opinion it is of the latter description."
If this reasoning be correct as to conveyances, it will apply with redoubled force to assignments of plats and certificates of survey, where the purchaser takes it subject to the risk of its containing less than it specifies.
Mary Frazer or the complainants can be considered in no other view than mere volunteers mala fide, and of course not entitled to the aid of a court of equity.
It seems as a necessary consequence, if the complainants are not entitled to the surplus land, they are not to compensation in either of the other modes contended for. Where there is no right. there can be no claim to compensation sustained.
Decree affirmed with costs.