Elmendorf V. Taylor. 1825. prior to the entry which called to adjoin it. In giving its opinion, the Court says, "how far a subsequent adventurer would have been bound by a description given in the survey of its beginning corner, if the survey had been of record, is not material to inquire; for there is no proof that the survey was, in fact, of record; and, as the law did not require that it should have been recorded at the date of the entry, a presumption that it was cannot be indulged, according to any rule of probability, or on any principle recognised in former adjudications of this Court." These cases, decided so near each other, by the same Judges, show clearly, by the terms in which they are expressed, that the distinction between a survey, neither recorded in fact, nor in presumption of law, was in the mind of the Court; and that its former adjudications were considered. Reed's heirs v. Dinwiddie, (3 Marsh. Rep. 185.) was decided in the year 1820. In that case, an entry called for a survey which had been made six months, and the Court determined, that the person claiming under this entry might avail himself of the notoriety contained in the certificate of survey, "which, from its date, must have been of record." Jackman's heirs v. Walker's heirs, (3 Litt. Rep. 100.) is the last case which has been cited. It was decided in 1823. The surveys were made about ten months before the entry, which called to adjoin them, and the Court allowed to the entry all the aid which could be derived from the Elmendorf description contained in the next certificate of 1825. survey; because, "from the length of time they had been made before the date of the entry in question, the law required them to be of record, and, of course, they must be presumed to be so." From the year 1813, then, to the present time, the Courts of Kentucky have uniformly decided, that a survey must be presumed to be recorded at the expiration of three months from its date; and that an entry dependent on it is entitled to all the notoriety which is possessed by the survey. We must consider the construction as settled finally in the Courts of the State, and that this Court ought to adopt the same rule, should we even doubt its correctness. We think, then, that the entry under which the plaintiff claims, is aided by the notoriety of the surveys which it calls to adjoin, if those surveys have been made three months anterior to its date. This depends on the question whether it is to date from April or July, 1784. The defendants insist that the amendment, or explanation, of the first of July, does not change the ground originally occupied, and is, therefore, not to be considered as having any influence on the date of the entry, or as connecting it with the surveys mentioned in the amendment or explanation. We cannot think so. This amendment would be seen by subsequent locaters, and would give them as full notice that the entry adjoined the surveys of Duncan Rose, James Kemp, and John Lewis, as they would have received had the V. Taylor. Elmendorf V. 1825. original entry been made on that day. Were it then to be conceded that the original entry, calling for Greenville Smith's line, instead of James Taylor. Kemp's, would have been construed to cover the same ground which it now covers, still we perceive no substantial reason for refusing to the change made in its terms any advantage belonging to the date of that change. Rule as to necessary par equity. We think, then, for the purpose of the present inquiry, the entry is to be considered as if made on the first of July, 1784, and is entitled to all the notoriety of the surveys for which it calls. This being established, we do not understand that any controversy remains on the question of notoriety. Some of the objects called for in the surveys are so well known, as to fix incontrovertibly the beginning of the entry made by Walker Daniel; and its validity is not questioned on any other ground. The validity of the plaintiff's entry being established, it remains to consider the other objections which are made to a decree in his fa vour. 2. It is contended, that he is a tenant in common with others, and ought not to be permitted to sue in equity, without making his co-tenants parties to the suit. This objection does not affect the jurisdiction, ties to a bill in but addresses itself to the policy of the Court. Courts of equity require, that all the parties concerned in interest shall be brought before them, that the matter in controversy may be finally settled. This equitable rule, however, is framed by Elmendorf V. Taylor. the Court itself, and is subject to its discretion. 1825. It is not, like the description of parties, an inflexible rule, a failure to observe which turns the party out of Court, because it has no jurisdiction over his cause; but, being introduced by the Court itself, for the purposes of justice, is susceptible of modification for the promotion of those purposes. In this case, the persons who are alleged to be tenants in common with the plaintiffs, appear to be entitled to a fourth part, not of the whole tract, but of a specially described portion of it, which may, or may not, interfere with the part occupied by the defendants. Neither the bill nor answers allege such an interference, and the Court ought not, without such allegation, to presume it. Had the decree of the Circuit Court been in favour of the plaintiff, and had this objection to it been deemed sufficient to induce this Court to reverse it, and send back the case for the examination of this fact, it could never have justified a dismission of the bill without allowing the plaintiff an opportunity of showing that he was the sole owner of the lands in dispute. In addition to these observations, it may be proper to say, that the rule which requires that all persons concerned in interest, however remotely, should be made parties to the suit, though applicable to most cases in the Courts of the United States, is not applicable to all. In the exercise of its discretion, the Court will require the plaintiff to do all in his power to bring every person concerned in interest before the Court. But, if the case may be completely de Elmendorf V. Taylor. 1825. cided as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the Court cannot reach, as if such party be a resident of some other State, ought not to prevent a decree upon its merits. It would be a misapplication of the rule, to dismiss the plaintiff's bill because he has not done that which the law will not enable him to do." Lapse of time, an equitable gy to the effect of limitations at law. 3. The third point in the defence is, the length of time which has elapsed since the plaintiff's equitable title accrued. His patent was issued on the 11th of February, 1794, and those of the defendants are of prior date. His bill was filed on the 28th of December, 1815. Several of the defendants, in their answers, claim the benefit of the length of time. From the earliest ages, Courts of equity have bar, by analo- refused their aid to those who have neglected, of the statute for an unreasonable length of time, to assert their claims, especially where the legal estate has been transferred to purchasers without notice. Although the statutes of limitations do not, either in England, or in these States, extend to suits in Chancery; yet the Courts in both countries have acknowledged their obligation. Their application, we believe, has never been controverted; and in the recent case of Thomas v. Harvie's heirs,' decided at this term, it was expressly recognised. But, the statute of limitations, which a As to who are necessary parties to a bill in equity, vide ante, vol. 8. p. 451. note a. b Vide ante, p. 146. |