STEPHENS, APPELLANT,

v.

M'CARGO AND OTHERS, RESPONDENTS

Mr. Chief Justice Marshall delivered the opinion of the Court.

This is an appeal from a decree pronounced by the Circuit Court of the United States for the District, of Kentucky, directing the appellant to convey to the respondents certain lands mentioned in their bill, and claimed by them under two distinct titles.

The board of commissioners granted a certificate of pre-emption on the 26th day of April, 1780, to Benjamin Harrison, for 1000 acres of land, which certificate contained, within itself, a good location. ‘ .

The entry with the surveyor was made on the 5th day of June, 1786; the land was surveyed on the 12th of December, 1787; and the grant was issued on the 10th of February, 1789.

The. complainants deduce title from Harrison to parts of this land.

The appellant claims'under a grant issued on the 1st day of March, 1784, founded on a survey of the 14th Of February, 1783, and on an entry made the 30th of May, 1780, on a treasury warrant.

In an ejectment brought against all the persons occupying the land covered by his patent, judgment was rendered in.his favour; whereupon, several of the defendants filed their bill on the equity side of the Court, setting forth their better title, under the pre-emption warrant of'Harrison, and . praying that Stephens might be enjoined from proceeding farther at law, and might be decreed to convey to them, respectively, the lands they, held under Harrison.

An amended bill was afterwards filed, with the leave of the Court, ia which two of the defendants in the suit at law, who were not parties to the original bill, united with the original complainants. This amended bill sets forth, that on the 10th day of May, 1780, Richard Barbour made a valid entry of 1000 acres of land, on á treasüry warrant, which was surveyed in January, 1786, and patented in June, 1787. One of the original complainants, and the two.complainants introduced in the amended bill, show a regular title under this patent.

The answer of the defendant put the claims in issue, and the Court sustained the titles both of Harrison and Barbour, and directed the defendant, Stephens, to convey to the plaintiffs so much of the land recovered by him in the suit, at law, as was held by those titles.

From this decree Stephens has appealed; and. his counsel alleges, that it is erroneous, because,

1. The titles of Harrison and Barbour aré united in the same bill.

2. Stephens has the better title in equity, as well as law.

1-, As to the form of the proceedings :

It may be admitted, that two persons cannot unite two distinct titles in an original bill, although against the same person. Such a proceeding, if allowed, might be extended indefinitely, and might give such a complexity to Chancery proceedings, as would render them almost interminable. But we know of no principle which shall prevent a person claiming the same property by different titles, from assorting all his titles in the same bill. If this principle be correct, then, as three of the complainants held under both titles, there would be a strict propriety in submitting both titles to the Court.

This would not be questioned, so far as the same land was claimed by both titles. So far as the surveys of Barbour and of Harrison interfered with each other, and the same person held under each, he would be unquestionably correct in comprehending both claims in the same bill;. If this were the fact in only a small portion of the land, still the two titles may be brought before the Court; and if this may be done, it would follow, that all who claim under either, and who are properly in Court, may assert their claims under both titles.

But a joint judgment has been rendered at law, against all these complainants, and they have an unquestionable right to unite in their application to a Court of equity, for an injunction to this judgment. The Court may, consequently, hear the whole cause, for the purpose of determining whether this injunction shall be perpetuated ; and it is a rule, that a Court of equity, which has jurisdiction of a question, may proceed to its final and completé decision. Directing a conveyance; is only making that relief, which would be afforded by a perpetual injunction, more complete.

We think, that all those against whorn the judgment at law was rendered, might properly unite in this bill, and assert their tides under Barbour and Harrison, or either of them.

We proceed, then, to the inquiry, whether the appellant or-the respondent have the better title in equity.

This inquiry is confined to that part of the case which respects the title under Harrison. Barbour’s entry, being prior to that of Stephens, gives a better equitable title, according to the settled course of decisions in Kentucky, if the entry be a valid one,'as.this is admitted to be.

The land law of Virginia, under which all parties claim, makes a pre-emption warrant superior to a treasury warrant, wheneven they interfere with each other, unless the hplder of the pre-emption warrant shall .have forfeited that superiority, by failing to comply with some of the requisites of ' the law. One of these is, that the warrant shall be entered with the surveyor of the county within twelve months after the end of the session of Assembly in which the law was enacted. That session of Assembly ended on the 26th of June, 1779, and, consequently, the time given by this act for making entries, expired on the 26th of June, 1780.

But the Legislature was induced, by weighty considerations, to prolong this time, and various acts of Assembly were passed, which did prolong it, until after this entry was made. It has been supposed, however, that there was, at least, one interval between the expiration of the law and the act of revival; and this circumstance gives birth to the present controversy.

The right óf the Legislature to give farther, time for entering pre-emption warrants, has never been drawn into doubt; but the influence of such laws on the rights or claims of others, has béen questioned. The appellant contends, that by making his entry on. the 30th of May, 1780, he acquired an inchoate right.to the lánd, which could be defeated only by such an observance of the law, on the part of the person possessing the pre-emption warrant, aswojuld preserve it from forfeiture ; and thát the land vested in him, by virtue of his entry, the instant the forfeiture took place.

We will inquirer-how far this principle is countenanced by the words of the act.

When the Virginia Assembly was about to open a.land office,, for the purpose of selling the immense tract of vacant territory within its limits, certain pre-existing rights were recognised and affirmed; and others, which had no previous legal existence, were created, and conferred on meritorious' individuals, as a reward for the fatigue and hazard encountered in exploring the country. Of the latter description, was the pre-emptive right, given to him who had marked and improved a tract of land. When the lai^d office was opened, it was opened for the sale of waste and unappropriated land, not for the sale of land already appropriated, or of land, á right to appropriate which . was vested by law in another; consequently, no entry, strictly speaking, was authorized, either by the act or the words of the warrant, on lands which were not at the time waste and unappropri- . ated.

The words of the law opening the land office, are, “Be it enacted, that any person may acquire title to so much waste and unappropriated land, as he or she shall desire to purchase, on paying the consideration of forty pounds for every hundred acres,” &.c. The land, then, which was brought in-tomarketand offered for sale,on which the purchaser might place his warrant, and to which he might acquire a title, was! “waste and unappropriated landland to which another had by law a pre-emp-tive right, could not be of this description. So long as that pre-emptive right continued, it was withdrawn from the general mass of property brought into market and offered for. sale ; it was land to which the power of appropriation conferred by the warrant did not extend.

The idea ¿nd • intention of the Legislature, on this subject, is more clearly expressed in the clause , which provides for the disposition of the property in the event of a failure to make the entry within the time limited by law. It is in these words : “And where any such warrant'-shall not be enter-' ed and located with the county surveyor, within the before mentioned space of twelve months, the right of pre-emption shall be forfeited, and the lands therein mentioned-may be entered for by any other person holding another land warrant; but such pre-emption warrant may, nevertheless, be located on any other waste and unappropriated lands, or upon the same lands, where they have not, in the mean time, been entered for by some other.”

It would be, at least, useless, to grant an express power to. the holder of a common treasury warrant, to locate the land after the forfeiture-of the pre-emption right, if that power had been previously granted by the general clause, which enables him to locate waste and unappropriated land ; and-the limitation on the right of location, which makes .it to commence, after the forfeiture of thepre-emptive right, is op , is not to be questioned. It is plainly the intention of the Legislature, and nothing can prevent that intention from being effectual, but the intervention of some other title, which the Legislature cannot rightfully remove. The original act shows how that other intervening title may be obtained. It is by an entry made while the pre-emptive right had no existence.

Considering this question as being res integra, entirely unaffected by the decisions made in the Courts of Kentucky, the opinion of this Court would be, that a title acquired while the pre-emp-tive right of Harrison was in force, could not be sustained against his entry, if made according to the act by which his right was continued. We do not think that, this opinion is opposed to the decisions of Kentucky, because no decision has ever been made in that country against a preemption right, properly entered, under the acts of Assembly for continuing the original law iri favour of a treasury warrant, located while those laws were in force. Titles under treasury warrants, entered during the existence of a prior right, have been sustained against other subsequent entries, made under similar circumstances; but never, so far as we are informed, against that prior right, if completed according to acts of the Legislature projongjng tjie tjme for completion.

In the case of Alsted et al. v. Miller, (Hardin, 193.) the Court of Appeals of Kentucky decided in favour of a title founded on a pre-emption warrant, entered in December, 1782, against a title founded on a treasury warrant, entered on the 9th of June, 1780. That case is admitted to differ essentially from this, because, when Millers pre-emption warrant was entered, no interval had occurred between the different acts, during which the land might have been legally entered; and because, too, Miller’s appears to have been the oldest patent. But in that case the Court decided that the time for entering the preemption warrant might be prolonged, notwithstanding the previous entry of a treasury warrant on the same land. The Court observed, that the holders of treasury warrants purchased, subject to the reservations made in favour of pre-emptioners ; that the Legislature might have permitted this reserved land to return to the common fund, on the failure of the person holding the pre-emptiou warrant to comply with the terms of the law, or might dispense with those terms in his favour, and prolong the time allowed for making his entry. The principle of this decision is, that an entry made during the existence of the pre-emptive right, is not such an inceptive title/as could be defeated only by the performance of the condition on which the pre-emption right depended, at the time his entry was made. It gave him no rights which were not under the control of the Legislature, and might, not be defeated by an act giving the pre-emptioner farther time to enter his warrant.

So far, then,, as the decisions of Kentucky go, they are rather in favour of the opinion, that the original right of Harrison was preserved, notwithstanding the interval during which it was forfeited, since the entry of the appellant was not made in that interval.

The decree of the Circuit Court affirmed, with cost*!.