1825.

Elmendorf

V.

Taylor.

Feb. 20th.

corner; thence, the same course with Granville Smith's lower line, to John Lewis' corner; thence with Lewis' line, and from the beginning south 7° west, till a line parallel with the first will include the quantity." This entry was afterwards explained and amended on the 1st of July, 1784, so as to read as follows: "Walker Daniel enters 8,000 acres, beginning at the most southwestwardly corner of Duncan Rose's survey of 8,000 acres, between Floyd's Fork and Bull Skin ; thence along his westwardly line to the corner; thence the same course with James Kemp's line north 2o west, 964 poles, to a survey of John Lewis for 22,000 acres; thence with Lewis' line, and from the beginning south 7° west, till a line parallel with the first line will include the quantity."

The plaintiff's bill was dismissed by the Court below, and the cause brought by appeal to this Court. It was argued, at a former term, by Mr. Clay, and Mr. Talbot, for the appellant, and by Mr. Bibb, for the respondents, and was again argued at the present term by the same counsel.

On the part of the appellant, it was contended, that the survey referred to in the amended entry, was, at the time, an object of sufficient notoriety to give validity to the entry, which called for one of its corners as a beginning. The Land Law of Virginia prescribes, that surveys shall be returned to the office, and recorded in a record book, to be kept for that purpose by the principal surveyor, within three months from the time

V.

Taylor.

of their being made. This survey had thus be- 1825. come a matter of record: and subsequent pur- Elmendorf chasers were bound to know its position, in the same manner as they are bound to know the position of entries. The book of surveys has every quality of a record, except that the surveyor is restrained from granting copies until the time limited by law, for the return of surveys to the land office, has expired; and the notoriety attached to the record of survey, does not entirely depend on the right to demand a copy of it. The right to inspect it still exists, and this right has been considered by the legislature as giving sufficient notice, to all persons interested, to enter a caveat against the issuing of a patent. Were the question of novel impression, there could be no doubt. But it had been settled by a long series of decisions in the local tribunal, and has become a settled rule of property, which this Court would respect, in the same manner as it always respected the interpretation of local statutes by the State Courts."

On the part of the respondents, it was insisted, that the prohibition in the statute to give a copy of the survey, excludes the idea of that notoriety which is ascribed to a record. Though inserted for preservation in a book, which is termed a book of record, it does not become substantially a matter of record, until it becomes public and accessible to all the world. Even if an inspection of

a The cases cited are enumerated in the opinion of the Court.

1825.

Elmendorf

V.

Taylor.

the book was demandable as a matter of right, such an inspection would, from the nature of things, be of no avail, unless an office copy could be obtained. The notoriety of the surveys referred to in the entry, would not, therefore, be inferred from the fact, that the three months, within which they were directed by the statute to be recorded, had expired before making the entry. It was, also, insisted, that the appellant's claim did not entitle him to maintain the bill in his own name, for the land in question. He was a tenant in common with others, and could not be allowed to sue in equity without making his co-tenants parties to the bill." The length of time since which the plaintiff's title had accrued, was also insisted on as an equitable bar. More than twenty years had elapsed, and the principle was well settled, that a Court of equity would adopt the analogy of the statute of limitations, applied to bar an entry, or an ejectment, as the rule to be applied to equitable rights and remedies. The statute of limitations is made to protect against ancient claims, whether well or ill founded, the

6 Johns. Ch. Cds. 450. 3 4 Johns. Ch. Rep. 199.

a Hinde. Pract. 2. 16 Ves. 325. Bro. Ch. Rep. 229. 2 Ves. sen. 312. b Francis' Max. X. p. 38.. Smith v. Clay, 3 Bro. Ch. Rep. 639. note. Jenner v. Tracy, 3 P. Wms. note (B.) 2 Equ. Cas. Abr. tit. " Length of Time." Cook v. Arnham, 3 P. Wms. 283. Bond v. Hopkins, 1 Scho. & Lefr. 413. Hovenden v. Lord Annesley, 2 Scho. & Lefr. 607. 1 Vern. 196. 362. 1 Ch. Rep. 105. 3 Atk. 225. 2 Ves. sen. 226. 2 Atk. 83. Cholmondeley v. Clinton, 2 Jacobs & Walker, 138.

evidences of which may have been lost, or ob- 1825. scured by time."

Elmendorf

V.

Mr. Chief Justice MARSHALL delivered the opi- Taylor. nion of the Court.

This suit was brought by the appellant, Elmendorf, in the Court for the seventh Circuit and District of Kentucky, to obtain a conveyance of lands held by the defendants under a prior grant, and under entries which are also older than the entry of the plaintiff. As the defendants do not adduce their entries, and rely entirely on their patent, the case depends on the validity of the plaintiff's entry. That was made in April, 1784, and was afterwards, in July of the same year, explained, or amended, so as to read as follows: "Walker Daniel enters 8,000 acres, beginning at the most southwestwardly corner of Duncan Rose's survey of 8,000 acres between Floyd's Fork and Bull Skin; thence along his westwardly line to the corner; thence the same course with James Kemp's line, north 2o west, 964 poles to a survey of John Lewis for 22,000 acres ; thence with Lewis' line, and from the beginning south 7° west, till a line parallel with the first line will include the quantity."

As this entry begins at "the most southwestwardly corner of Duncan Rose's survey of 8,000 acres between Floyd's Fork and Bull Skin," the first inquiry is, whether this survey was at the time an object of sufficient notoriety to give va

a Clementson v. Williams, 8 Cranch's Rep. 72. Shipp v. Miller, 2 Wheat. Rep. 324.

March 5th.

Elmendorf

1825. lidity to an entry calling for one of its corners as a beginning. It is not pretended that the survey itself had acquired this notoriety; but the plaintiff Taylor. contends that it had become a matter of record;

V.

and that subsequent purchasers were, on that account, bound to know its position, in like manner as they are bound to know the position of entries. The Land Law prescribes that surveys shall be returned to the office, and recorded in a record book, to be kept for that purpose by the principal surveyor, within three months from the time of their being made. They are to be returned to the land office in twelve months from their date, during which time the surveyor is forbidden to give a copy to any person other than the owner.

It is contended by the defendants, that this prohibition to give a copy of the plot and certificate of survey, excludes the idea of that notoriety which is ascribed to a record. Though inserted for preservation in a book which is denominated a book of record, it does not become, in fact, a record, until it shall partake of that characteristic quality of a record, on which the obligation to notice it is founded, being accessible to all the world. Were even an inspection of the book demandable as matter of right, which the defendants deny, that inspection would, they say, from the nature of the thing, be of no avail, unless a copy was also attainable. They insist, therefore, that the notoriety of these surveys is not to be implied from the fact that the three months had expired, during which they were directed by law to be recorded.