1824.

Stephens

V.

M'Cargo.

March 16th.

[LOCAL LAW.]

STEPHENS, Appellant,

V.

M'CARGO and others, Respondents.

The land law of Virginia, of 1779, makes a pre-emption warrant superior to a treasury warrant, whenever they interfere with each other, unless the holder of the pre-emption warrant has forfeited that superiority, by failing to enter his warrant with the surveyor of the county, within twelve months after the end of the session at which the land law was enacted; and on that period having expired, and being prolonged by successive acts, during which time there was one interval between the expiration of the law and the act of revival, the original right of the holder of the pre-emption warrant was preserved, notwithstanding that in erval, the entry of th holder of the treasury warrant not havi g been made during the same interval.

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 1824. 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, in 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 a treasury 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

Stephens

V.

M'Cargo

1824.

Harrison and Barbour, and directed the defendStephens ant, 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.

V.

M'Cargo.

From this decree Stephens has appealed; and his counsel alleges, that it is erroneous, because, 1. The titles of Harrison and Barbour are 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 asserting 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, 1824. 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 complete 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 whom the judgment at law was rendered, might properly unite in this bill, and assert their titles 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 holder of the pre-emption warrant shall have forfeited that superiority, by failing to comply with some of the requisites of

Stepheus

V.

M'Cargo.

1824. the law.

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 of 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 been questioned. The appellant contends, that by making his entry on the 30th of May, 1780, he acquired an inchoate right to the land, which could be defeated only by such an observance of the law, on the part of the person possessing the pre-emption warrant, as would preserve it from forfeiture; and that the land vested in him, by virtue of his entry, the instant the forfeiture took place.

We will inquire 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