Daniel Stringer, Philip M. Linger, Nicholas, Margaret and Joseph Linger, Plaintiffs in Error vs. The Lessee of John Young, Archibald M'Call, Mary Cadwallader, William Reed and Anne his wife, and Harriet M'Call

Daniel Stringer, Philip M. Linger, Nicholas, Margaret and Joseph Linger, Plaintiffs in Error vs. The Lessee of John Young, Archibald M’Call, Mary Cadwallader, William Reed and Anne his wife, and Harriet M’Call. On a trial in- ejectment, the plaintiffs offered in evidence a number of entries of recent .date, made hy the defendants, within the bounds of the tract of land in dispute, • designated as “Young’s four thousand acres;” and attempted to proye, by a witness, that Young, .when he made the entries, had heard of the plaintiffs’ claim to the land. The defendants then offered to introduce as evi- - dence,. official copies of entries made by other and third persons since the date of the plaintiffs’ grant; for the purpose of proving a general opinion, that the land.contaihed in the-plaintiffs’ survey, -made under the order of the court,' after'the commencement of the-suit,'were vacant at.the date of such entries,; and to disprove notice to him of the. identity of plaintiffs’ claim, when he made the entries under which he claimed. This evidence was tmquestion- ' ably irrelevant. [337] Entries made subsequent to the plaintiffs’ claim, whatever, riiight have beém the impression under .which they were .made, cijuld not possibly .affect.the title, held under a prior entry.. [337] The Admission of evidence which'was irrelevant, but wnich was not objected to, will ,nót authorize the admission ot other irrelevant evidence offered, to rebut the same, When the same is objected to. . [887]' The land law of Virginia directs that, within three mohthsafter a súryey is made, the surveyor shall enter the plat and certificate therfeof iñ a' book,- well bound, to -be provided byjhe court of his county, at the . county charge. lAfter prescribing-this, among Other duties the law proceeds to enact; that any surveyor failing in the duties -aforesaid, shall he liable to.be indicted.' . The law, how.'ever, does not declare-that the validity o.f such'Burvey shall depend in any degree on its being recorded. [338] The chief surveyor appoints deputies at-his- will;- and no mode of appointment is - prescribed.. The survey, made by his deputy is examined and adopted by himself, and is certified by himself, to. the.register of the; land, office. He recognizes the actual surveyor as his deputy in that particular transaction, atid this,, jf it be unusual or, irregular, cannot affect .the grant. [340] Objections which are propbrly overruled, when urged against a legal, .title, in support of an equity, dependent entirely on a , survey of land for which a patent has been issued, can have no weight when urged- against a patent regularly issued in all.the forms of law.N [340]. In Virginia, thépatetttiafbe completion of the-title, and establishes the performance of every pre-requisite. No inquiry into .the regularity of those preliminary measured,, which ought \o precede it, is made in a (rial at law. No case has shown that it may be-Impeached at law.; unless it be for fraud. Not legal and technical, but actual and positive fraud,-in fact, comtfirtted’by .the-person who obtained it; and even-this is questioned- '. [340] It is admitted to have been indispensably necessary to the plaintiffs’ action, to show a valid title to the .land in controversy; and-(bat the defendants were at liberty to resist the testimony, by any evidence tending in any degree, to disprove this identity. But the defendants were not at liberty to offer evidence haying no such tendency,- but whiéh might eithér effect a different purpose, or be wholly, irrelevant. The question of its relevancy must" be. decided by.the :ourt; and any error in its judgment would be corrected by an appellate tribunal'. The court cannot-pferceive that the omission of the surveyor-to record the survey, or-the fací that-the survey, was made by a person not a regular deputy, .had any tendency to. prove .that the land described in the-patent was not ' the'land for which the suit was instituted. [342] The warrant fór the ¡and in controversy was enteréd with. the.surveyor of Mohongaita county oh the 7th of April 1784. At the MayI'session, .of that year, the general assembly of Virginia divided the county of-.Monongaliaj'and erected a new county, to take effect in July, by the name Of, Harrison.' ’ The land on Which the plaintiffi’ warrant was entered,-.laid in llie new county.'' The cert-i- . Spate of survey is dated in- December 1784, and .in accordance with the entry, . .states the land to he, in-Monongalia. Tpe land law of Virginia enacts tha.t warrants shall be lodged .with tfié surveyor of the county in which the lands lie, and that .the party shall direct the iocatiqn specially.and precisely. It also directs--despatch in the survey of all lands entered in the office. Nrr provision is made for the division of a county beiween the entry and the survey. The act establishing (,he county of Harrison, does noj direct that the surveyor of Monongalia county shall furnish the surveyor pf Harrison with copies of the' entries of lands which lay in the new county, and \yith the warrants on wliich they were. made. In this state-of-things the survey of, the land in controversy was made by ¡be surveyor of Monongalia; the plat and certificate on which the patent was afterwards issued, were transmitted to the land office; and the patent - described the land as' in Monongalia county. No change .was made in the law' until 1788. This will-no't annul the- patent, or deprive the unoffending patentee of' his property. [343] The misnomer ot a county, in' a patent for land; will not vacate the patent. It w.ill admit of explanation, and if explanation can be received, the patent on whifch the misnomer isfoundfis not .absolutely void., [344] 'ERROR to the district court of the western district of Virginia. This was an ejjectmént brought.by,the defendants, agains^, the plaintiffs in error, in,the district court of the United' States for the western district of Virginia, exercising circuit bourt powers, for the recovery of a tract of four thousand acres of land in the said district, being a tract lying in the north-east corner of a large connexion of surveys made together, owned by Reed and Ford, the said Youngs, Thomas Lardley, and.others; some in one name and some in others, as appearing by the surveyor’s diagram. There was ¿ verdict and judgment, for the plaintiffs, which this writ of error is brought to -reverse; During the trial the counsel of the defendants tendered three bills of exceptions to opinions of the court,, which-are signedJ sealed, and madé part of the record, and,whieh-tfre. substantially as'follows: The' first bill of exceptions, states that the plaintiffs below, op the trial of the case before the district court, introduced a-grant for the lands claimed, which grant is described iff the third bill Of exceptions, and the plai and report Of the surveyor made in the cause, That the plaintiffs also offered in evidence a. number óf entries of recent date,, made, by the defendant Stringer,, within the Bounds of the said land, Ps designated On-said report, as John Young’s four thousand acres, beipgthe land claimed by the plaintiffs, and atterupted to prove.by,a'Witness that Stringer, when he made those entries, had heard of the plaintiffs’ claim to the land in controversy.; The defendants thereupon offered as'evidence- official copies.of entries made by others. and third persons, since the date of the plaintiffs’ grant, for the purpose' Of proving a general opinion that the lands claimed-wefe, .vacant at the.date of the said, entries,. and to. disprove notice to Stringer of the identify of the'plaintiffs’ claim, when he made the entries under which the defendants claimr to hold;. The.eourt decided this evidence to be inadmissible, to vvhich the defendants excepted. The. second bill Of exceptions; after setting out the plaintiffs’ grant, stales : -that the defendants then offered in evidence the surveyor’s book, of Monongalia county, to prove no such survey, had ever been returned to the office of said surveyor, and recorded in the books of the said surveyor; and further offered to introduce evidehce to prove that Henry Fink,., the deputy upon whose survey the grant- purports to have' issued, resided at the date Of the said survey in Harrison county, and was not then a deputy surveyor of Monongalia county; The defendants offered the said evidehce to prove that no survey had ever beep made, and that the register issued the grant without proper authority; on which account. the same was void. The plaintiffs ‘ objected to this evidence as inadmissible for, the'purpose stated; and the court rejected it as such. The defendants counsel, then offered the. samé evidence, to disprove the identity of the land contained in the plaintiffs grant' with that now claim-, eu ny the plaintiffs, and represented by the surveyor’s report, as contained by the blue lines thereon, and thereon designated by the Roman numeral V. The court also rejected, the said-evidence for the last mentioned purpose,, and the defendants excepted. The third bill of exceptions states; that the plaintiffs on the trial of the cause introduced a grant in the -words and figures following,, setting it forth at large.. The grant is issued to John Young, the lessor, and dated thelOth of June .178^, for'four thousand acres,'the premises . in question} bounded as follows, to .wits describing it by metes .and bounds. The defendants thereupon offered, in evidence a. cértified copy of an aet of. assembly of Virginia; establishing the county of Harrison, and a copy of the certificate of the survey on which the'plaintiffs! said grant issued, dated December 13th 1824, after the act for erecting the county of Harrison was in operation; and proved that the land purporting to be granted, and the land claimed, as having been surveyed; lay in the bounds of the county of Harrison; and, upon this evidence the counsel moved the court to instruct the jury, that, if they were satisfied from the testimony that the lands lay in a different county from that in which the surr vey imports to have been made, then the grant was void at law ; and that it was npt competent for the plaintiffs to contradict the call for the county in the grant. But the court delivered its opinion that the foregoing facts, if true, should not avail the defendants in the present action, as the grant was not void : to which opinion’the third bill of exceptionsistaken. The case was argued by Mr Smyth, for the plaintiffs in error, and by Mr Doddridge, for .the defendants. For the plaintiffs, on the first bill of exceptions, it was «on-tended ;, that the court admitted illegal' evidence offered by the pláintiffs.below, and stated in the bill, to goto the jury. That the cóúrt rejected evidence offered by the defendants below, which Was proper to. counteract the said evidence offered by the plaintiffs. On the second bill of exceptions it was argued, that the evidence offered was legal, and'should, have been admitted to the jury. On the third bill'of exceptions,'the counsel for the plaintiffs, contended; that the eourt should have instructed the jury that the plaintiffs’ grant was not evidence to support their, claim to the land in-controversy, That the court should have instructed the jury, that if they were' satisfied, from the testimony, that the lands lay in a different County from that ip which the survey purports, to have been made, that the grant was void. That the court-should have, irestructed' tbe jury, that the plaintiffs could not, by parof evidence, contradict the call for the county in their grant. That the court erred in-giving no instruction on that.point,' although required so to do by the defendants; a,nd on.the whole record, the plaintiffs jn error contended; that this court should have decided that the grant under which, the plaintiffs claimed was void.. That the instruction of the judge to the jury, that it is no objection to the. plaintiffs’ grant that the survey was made by á surveyor of Monongalia, in the county of Harrison, is erroneous. That the court erred ih admitting hearsay evidence to identify corners, and establish boundaries, of the lands^cfaimed by the plaintiffs; and that the verdict is contrary to evidence; and therefore the court should have ordered á new trial; Smyth, for the plaintiffs in error, argued; that the cojan admitted the plaintiff below to introduce illegal evidence,, as stated in the first bill of exceptions. They produced, copies of a number of entries of recent date, made by. Stringer, one of the defendants below, within the bounds described in the'surveyor’s report; and attempted to prove by a witness, that when those entries were made; the said Stringer had heard of the claim of the plaintiffs. This was an attempt to deprive an individual of the right to writer vacant land, because hé has heard that another has a claim to it. Has there not been an attetppt, sanctioned by the cóurt, to lead the jury to.believe that having heard that another had a claim to the land, the defendants had rio right to locate it, although it might be vacant 1 Has there not been an attempt to lead the jury,to believe that the law of purchaser with, or without notice, had some bearing, bn the cause % The doctrine of notice has no application to purchasers from the government".' If the plaintiffs’ grant gave no title, notice to Stringer would not make it good against him. Suppose that Stringer and some other person had made entries on the same day, Stringer having heard of Young’s, claim, the other, not having heard of it; will-it be contended that tlie one could; and the other could not, obtain a right 9 What had the plaintiffs to do with these entries of the^defendants They could not stand in the way of the claim of the plaintiffs, if the-.-_had a grant for the land. The tendency of this evidence, if not the object of producing it, wás to, perplex and mislead the.jury, and excité a prejudice against the defendant Stringer. And the law. is that “ illegal or improper evidence, however unimportant it may he to the case, ought never to be confided'to the jury.; for. if it should have an influence upon their minds, it will mislead them; and if it should have-none, it is useless, and may at least produce perplexity.” 2. Wash. 281. The court erred in rejecting evidence offered by. the defendants, which was proper to rebut the said evidence offered, by-the plaintiffs. The illegality of Young’s evidence, we admit: but as the court received it, thereupon it became necessary and proper to counteract it. Copies of entries, if evidence for the one party, were evidence for the other; and a genéral reputation that, the land was. vacant, was persuasive evidéricethat Stringer had no notice of Young’s claim, and believed the land to be vacant. This evidence was important to remove prejudice; and refusing to receive it secured the effect of the plaintiffs’ illegal evidence. The evidence stated in the second bill of exceptions should have been left to the jury. The evidence.offered ,was, the book of the surveyor-of Monongalia ; and testimony that Henry Fink, who made the survey, was not a deputy of the surveyor of- Monongalia in December 1784, when the plaintiffs’ survey was made. You cannot, in a'court of law, go into the consideration of a deed; but you may avoid it, by proving fraud in the execution.. If there was no survey, or only a survey by Henry Fink, as deputy surveyor of Monongalia, when in fact he was not so, the signature of the governor was obtained by fraud. There is fraud in the execution of the deed, which may be shown in a court of law;; so this evidence should, for, that purpose, have beén pérmitted to go to the jury. The plaintiffs below were to identify their land; their grant called for land in Monongalia, and their survey was made by. Henry Fink,'as deputy surveyor pf Monongalia.; the surveyor’s book was offered to disprove the identity of the land ; the judge refused to receive the book as evidence, no matter what it proved. It never was heard before that the survey, was not evidence on the. question , of identity. And if the survey is evidence, the surveyor’s book is evidence. The grant calls for a corner to the lands entered by George Jackson. The book might show where those lie.- The book might prove that the survey began on the head of the Glady Fork of Stone Coal creek, and extended' down it. The land claimed includes the right hand fork of Stone .Coal, below the mouth of the Glady Fork, and does not include the mouth of the Glady Fork, w.hich 'is a branch of the right hand fork. The grant does not say, as the survey does, “ beginning at th^ he'ad of the Glady Fork of Stone Coal creek.” Hence the" necessity of exhibiting the survey; because it contains evidence of the locality, not in the grant. If the surveyor’s book was legal evidence, it. should have been left to the jury, whether offered for one purpose or another; but it was rejected by-the court. On the question of identity, the copy pf an entry is evidence. 5 Wheat. 369, 362. The court should have instructed the jury, that the plaintiffs’ grant was not evidence to support their claim. Th'é defendants produced-the act of assembly, which established Harrison county on the 20th of July, 1784; a copy of the plaintiffs’ survey, dated December. 13th 1784, signed Henry Fink, assistant to S'. Hanway, S.M.C.; and proved that the .lands in controversy lay in Harrison, at the date of the survey. The court instructed the jury, that if the facts were so, it could not avail the defendants in this action; .and that the grant was not void. If we admit, for the sake of argument, that the grant is not void, it can take no lands elsewhere than.in Monongalia. And howevér. land in another county may seem to suit the description; they cannot bé the granted lands. The grant is no evidence of title to lands in Lewis, a county formed from Harrison. The jury should have been instructed that the grant was no evidence of title -to land which lay in Harrison at the date of the survey. The commonwealth has. granted lands in Monongalia. If you cannot find them there, you can find them no whére else. Can a grant for bands in the county-of Brooke pass lañdsilying in the county of Princess Anne % A party must identify the iánd acéóíding-to the call of his grant. If he calls for crossing James river, he must cross James river. Is not the call for the county the most important of all calls Should it be contended that the surveyor of Monongalia might survey, in Harrison, lands entered in Monongalia before Harrison county was formed, it is answered, this was never authorized : and in .this act the sheriff of Monongalia-is specially authorized to complete his business'in Harrison; but no such authority is giveñ to the surveyor. The court should have instructed the jury that the plaintiffs could not by parol evidence contradict , the call for the county in the grant under which they claim. There is no latent ambiguity. In Dowlie’s case, 3 Coke’s Rep. 9, 10, the grant was-held void because the parish was wrong named. But if parol evidence could have been offered to contradict the call for the name of the parish, the grant would have been made good. . A grant in the county of S. will not pass what lies m the county of D. 3 Bac. Abr. 389. But if parol evidence could have been received to,contradict the call for the county, the grant would have been made good. A grant to oné, as a knight, when he is an esquire, has been held void. But this would have been remedied, had parol evidence beenadmissible. Parol evidence is admissible to vary or contradict, the grant. 2 Cranch, 29. The name Hosmer in a grant, cannot be proved by parol to be Houseman. 12 Johns. 77, In the appendix tp.Pothier on Obligations, the. law is thus laid down (Vol. 2, p. 210): “But where there is an existing subject; to which a description may, be properly applied, parol evidence cannot be allowed that a different subject was intended.” Here there' is an existing subject, the county of Monongalia, to which the description, lying in the county of Monongalia, may be applied. The court was asked to instruct the jury, “ that it is not competent to the plaintiffs to contradict by,parol the call for the county in his grant,” and gave no instruction on that point'. The court, when asked for an instruction,, are bound to give the instruction asked for, or another on the same point. 2 Wash. 272, 273. The court should have decided, that the grant under which the.plaintiffs claimed, was void. It is contended,, that a grant is. void if there is an insufficient or false description; or if it has been obtained on a false suggestion; or if it has been obtained by fraud.; or -if it has been obtained against the rules of the land office. And that in all these cases, if the objection appears on the face of the grant, or if it judicially appears, the grant is voidiii.a court of law. As to an insufficient r t false description. If lands are described as lying in a wrong parish, the. grant is void; Cited 3 Bac. Ab. 388. 2 Co.. Rep. 10, 2 Mod. 3, 4. Anderson, 148. 4 Cruise, Dig. 225. It is therefore contended ; that this grant is void, for an insufficient and false*description. And it always was within the jurisdiction of a court of law to declare, that for such a defect, a grant-or any other deed of conveyance was void. -.See 14 Vin. Abr. 100. 2 Co. Rep. 33. Hobart, 171. „ It has been decided that.to omit the name of the county will not vitiate the grant, if there is otherwise a sufficient description of the land., But to give the name of the county, and give it falsely, is a. defect that never was excused. 5 Mumf. 520. Let us consider the-consequences to which the false description in the grant in question would lead. One searches the records of Harrison, and the books of the com-, missioners of the revenue; he finds po notice.of any such grant; he searches, the office of the surveyor of Harrison and.Monongalia; he finds no survey recorded. Recording a deed in a wrong county is a fatal, objection, when urged by a purchaser without notice. So, after the district of Zanesville was formed from that of Marietta, the lands in. Zapesville ;district.could not be purchased at the office of Marietta. If lands ought to be conveyed by- a deed recorded in the proper county, so they 6ught to .be granted in the proper" county. 4 Wheat. 478, 479. 5 Cranch, 92. 1 Wash, C. C. Rep. 322. Of the false suggestion. The commonwealth’s grant issues on the suggestion of the grantee, and on evidence offered by. him, true or false, that he has "complied with the law. A grant on a false suggestion is void. The king being deceived, his grant is void. He should"be truly informed.' If the suggestion is false of the parties’ knowledge, the grant is-void. 5 Bac. Ab. 602. 10 Co. Rep. 112. 1 Co. Rep. 46, 52. Skinn. 656. 5 Co. 94, 113. Yelv. 48. “Lying in Monongalia,” is the suggestion'of-the grantee, and it is false. The grant is notice, to. all men that the grantee does not claim lands in Harrison. The commonwealth is deceived, and every citizen is deceived who may-see this grant, and locate the lands claimed in Harrison. The king’s grant can do no wrong ; rather than do wrong, it is void; where it would do wrong, it. is. void. 1 Co. Rep. 44. Shep. Abr. 91. Here fees áre due to the surveyor of Harrison county and the college. The grant is issued on a survey made by a maii falsely pretending to be a deputy surveyor of Monongalia; the surveyor of Harrison is certainly defrauded. The grant has been obtained by fraud. The register had no authority Jo issue a grant for lands in Harrison. In this way all the vacant land in Harrison might haVe been surveyed as in Monongalia, and granted as in Monongalia, and thus the surveyor of Harrison be defrauded of-his fees. They are a part of the consideration ; a. portion of them is appropriated to the college. The governor supposed that the surveyor’s fees weje paid. The commonwealth is interested that her officers shall receive their, dyes, and that the. college shall receive the fund appropriáted for the support of education. 5 Wheat. 293, 303. 5 Mumf. 522. A grant fraudulently obtained is‘ void. In the' case of Huidekóóper’s lesseem Burrus, judge Washington decided that a patent for land is only prima facie evidence of title; but if the previous steps for vesting a title be not performed, proof of such omission, will defeat the same. 5 Harris & Johns. 223. 1 Wash. C. C. Rep. 109. 1 Harris & Johns. 370. 2 Harris & Johns. 456, 458. 1 Hen. & Mumf. 306, 307. Perhaps it will be said that although the grant might have been repealed by petition in chancery, yet it is good in a court of law. It is. contended that the statutory provision of Virginia for repealing grants, doés pot affect the authority of the common law-courts to declare grants void. It is a new remedy in some cases ; in others it is conclusive ; in others it does not apply; and this is one of those latter cases. There is no law by which this grant may be repealed : ..for he who would repeal a grant, must have a prior equitable claim. We are taught that for every wrong there is a remedy; but there is no remedy for this wrong, unless a court of law may- adjudge this grant void. Might one have taken all the good lands in the county of Cabel by plats fabricated, purporting to have been made by the surveyor of Henrico, had them granted as lands lying in Henrico, sold the‘m as'lands lying in Henrico; and have the title adjudged.good, because there was no prior equitable claimant to ask for a repeal of the grant ? The providing of a remedy by the repeal of patents, obtained regularly and without fraud, in favour of á prior equitable claimant, did hot take away the power, of courts of law to adjudge grants void for insufficiency or fraud. The English courts of láw declare grants and other deeds void, on trials of writs of. right and ejectments. Virginia i has adopted the common law of England. Where is the act o/ assembly that takes this power from her common law coitrtsi The law which avoids.a grant,- is the same in Virginia as in England. Judge Blacksfone says/ a patent is void in a court of law, if the cause appears on its face. 2 Blacks, 348. Judge. Roane says the same thing. 1 Mumf. 141, Is it.required that the' falsehood and the truth shall both appear on the face Of the grant?. - Certainly nó. The falsehood appears on the face of the. grant ; the truth appears by the. evidence, in the cause; and-.then, the grant is adjudged void. In-this case the. truth appears by the. record, and that which avoids the grant/-appears on its face. It.calls for- lands in Monongalia. If the land claimed is identified in Harrison,. that circumstance renders the grant void.; for on its face, if appears thát the. land was-surveyed after'Harrison became a county. • Whe'n it appears judicially that the king is deceived, hi's grant is void. Skin. 659, 6 Mumf. 120. It is not-necessary to. repeal a grant* unless that, grant* unrepealed, confers a title: buf this grant confers-no title to land in Harrison, therefore it-is Unnecessary to repeal if. With regard to deeds, a' distinction has been taken, that.. you cannot, .in a court of law, invalidate them bjc proving á fraud in-the consideration; but that you-may prove a fraud in the execution. Here we say the execution .Was.obtained by fraud. The.governor was, by falsehood, induced to execute the grant. Would he have signed it had fie been truly informed? Certainly,nof.. it has been decided in Virginia/in a similar case, that- a, grant might, be declared void in a coutt of law; and_that decision has^never been declared not to be law. Hambledon vs. Wells. Mr Doddridge, for the defendant in error. The matters alleged in the first bill of exceptions are wholly unimportant. The testimony offered and rejected, was not receivable for any purpose,,The plaintiffs stood oil the oidest grant, or the Only grant appearing in the cause; and in such a case, besides. the formalities affirmed by the common rule, the only ques? lion between the parties was that of identity, "and neither for this nor for any other purpose were they permitted to look behind the grant. This will hereafter be proved; when-considering the questions raised by the second and third bills of exceptions. The evidence offered and given by the plaintiffs, except the grant and surveyor’s report, was unnecessary.; as he had nothing to do with.the conscience’of Stringer, perhaps, it might be admitted that-this testimony waá improper; yet it was not objected to. Butthe'testimony offered by the defendants and rejected,-was improper -in every-view. It was offered to prove a general belief that the bond was vacant; a fact which, if admitted, could avail them nothing. The questions raised by the second bill of exceptions are: 1. Whether a defendant, when a legal grant for the land claimed, and the official survey on which it is founded, are given in evidence agains;him, can avoid the grant, by showing, by the bookof surveys, that the survey was not recorded; and by parol-prbof'that the deputy was not the deputy of the surveyor, certifying'the,pTát, but of another surveyor 9 . 2. -Whether the .defendant can offer the same evidence to disprove the identity of the land *? The question raised by the' third bill of exceptions was this. The official plot and certificate of survey is dated the 13th of December.1784; and the plaintiffs’ -grantthereon the 10th June 1736. The county of,-Harrison .was created the 3d of May 1784. The law commenced in force the 20th of July 1784. So that when the survey bears date, the county of Harrison was in being, and the land in fact was, in that county; ,and the question is¡ ought the cpurt to have instructed' the jury that, if they found these facts, the grant,was void at law, and that the plaintiffs could npt disprove the descriptive call, “ Monongalia County,” in the survey and the grant"/ The questions raised by the second and third bills of exceptions may be considered together. 1. The first position is,- that the parties can: go behind the grant for nothing in an action at law; because evidence before the grant, would take the party by surprize; and because, the grant is, ipso facto, an appropriation, and the question to be determined is the identity of the thing granted. Againin the case of a land office warrant, in Virginia, the entry is, and the survey is not,, an inceptive appropriation. The title is transferred by the grant, towards obtaining which, the survey is .but a progressive step. Even the entry .cannot be brought before the court. Wilson vs. Mason, 1 Cranch, 45, 101. Johnston vs. Brown, 3 Call, 359, 268. M’Arthur vs. Browder, 4 Wheat. 488, 491, Finley vs. Williams, 9 Cranch, 164, 167. In the case of a military warrant under the colonial government, it was otherwise. There , was no entry, and'of course, the survey was an inceptive act of appropriation. Taylor vs. Brown, 5 Cranch, 234, 241. • It follows that the warrant in the latter case, without any other act, conferred on the surveyor ail authority to survey; whereas, under the land law of Virginia, of May session 1779, ch. 13, the warrant must be lodged With the surveyor, and the party must make an entry on the land he selects. This entry, alone, confers on the surveyor tne authority to survey ; and his-certificate of survey proves as well that the possession of the warrants \Vere necessary, as the entry under which he surveys ; as under tne military warrant it proved the possession pf the war-" t. That is, it.proves the existence of the authority by .rich ft was made. Taylor vs. Brown. 5 Cranch, 234, 241. 2. The whole duty of a surveyor, in relation to a survey and'recording it, is prescribed by thé act of 1779, ch. 13. 10 Hen. S. L. page 57. These* duties are again prescribed in 1784, by act reducing into one the several acts concerning surveyors; 10 Hen. S. L. page 352 : but by the latter act these duties are not varied. These laws require the surveyor to run, and plainly mark and bound the survey, except where the same is bounded ‘ by water courses, the lines of surveys before made. They require him, in, his certificate, to note the boundaries, courses, and distancesj variation from the true meridian, and to set down, the names of adjoining owners, and of the hundreds, where any are establishéd; and to observe a due proportion between length and breadth. The law does not expressly require the county to be named, but it is admitted that it does so impliedly. Yet, as a survey is a progressive step, and those duties merely directory, it has been holden that the' name of the owner of the survey itself may be mistaken in the certificate and„grant, and both contradicted by parol testimony; as where the survey imported to be made for one Yinegard, it was allowed tobe proved that, in fact, it was made for oneUnrod. Johnston vs. Buffington, 1 Wash. 116. That the dutiés imposed on the surveyor are directory, and the omission to perform'them does not affect the right of the party, is settled by this court in Craig vs. Radford, 3 Wheat. 594, and several other cases. 3. The name of the county is matter of general description, and although a surveyor ought to state it truly, yet if he does not, the name of the county may as well be corrected by evidence as the name of the owner. If he misstate it, he finis in his duty; but this shall not injure the party. In a grant, a description that will identify the land is all that is necessary. M’Arthur vs. Browder, before quoted. If even a location have certain material calls sufficient to support it, and to.describe the lands, other calls less material and incompatible with the essential calls may be disregarded. Taylor vs. Brown, 5 Cranch, 234, 241. Now, water Courses are natural, material,-permanent and.essential calls; while the lines of a county are immaterial and artificial ones. 4. The omission of the name of the county does not vitiate a grant, which proves this description immaterial. M’Lean vs. Tomlinson, 5 Mumf. 220, 223. The patent in that case, on its face, purports to have issued on a certificate of survey, bearing date the 14th of July 1773; on warrants of a subsequent dqte in that and the next year, and the name of the county is left blank. The court decided the omission to be immaterial, ihe patent containing other sufficient descriptions, as “ at the round, bottom” “ on the Ohio,” &c. &c. The .history of that title is as follows : general Washington procured a deputy surveyor of West Augusta to make a private survey for him in 1773. He possessed the filed .notes, and afterwards purchased warrants to cover it of a date subsequent to his private survey. In October 1776, the counties of Monongalia, Ohio arid Yohogania, were formed out of West Augusta. See Hen. S. L. Vol 9, 262, 269. The .law creating these counties took effect the 8th of November 1777; 263. After this period, the surveyor of West Augusta ceased, to be surveyor of either of those, counties; yet on these-private, field notes, and of the acquired warrants, he returned a plat and certificate of survey; but not knowing info which, of .those new counties the land fell, he left the name blank. Here the survey was made without any authority whatever; the special verdict having fpund the true date of the.survey and warrants, and all this appearing on the face of the grant; and yet it was sustained as valid at law. 5. Rut if it were granted that the surveyors book of surveys could be produced for any purpose, it would follow of course, and, a fortiori, that*the book of entries could also be pro* duced; which would be contrary to'the decisions of.this court, and pf the courts of Kentucky. If parties in another county were supposed to be ready to do this, then the real fact would appear, that the entries were made in Monongalia, while Harrison, was part of that county, and remained rinsurveyed' at the time of the separation. The date of the entry does not appear from the patent, and the true date of the survey does not appear in the case otherwise , than by the certificate. This date shourd.be controlled by the certificate that the lands ¡are in Monongalia corinly, which, they could not be af the date of the certificate. Or if the court would not sustain the position, then this, court have already decided that the official certificate of a survey proves the authority by which the same was made, .and therefore proves a good and valid entry made in-Monóngalia before the separation of the counties, and at that time remaining unsurveyed. If it is contended that this entry ought to have been certified to .the surveyor of the new county, the law on the subject is misunderstood. Prior to the act of October session, 17th, ch. 51, there was no provision for so certifying an entry. See 12 Hen. S. L. 709. The preamble puts the matter beyond dispute. An unsurveyed entry remains subject to forfeiture if not surveyed in time, and all the duties and responsibilities attached to that surveyor with whom the entry was made. Should he have stated the lands to . have been in Harrison coun.ty at the time of survey *? If so, he has made a mistake. Ought he to have recorded the survey, and did he fail to do so? Then he has, in both cases, failed 'in the discharge of a directory duty* merely; by which the right of the party is not impaired. [MAJORITY — Mr Chief Justice. Marshall] Mr Chief Justice. Marshall delivered the opinión of the Court. . This was an ejectment brought in the court of the United States for the western district of Virginia. The jury found a verdict for the plaintiffs, on which the judgment of the court was rendered j which judgment has been brought to .this court by writ of error. At the trial, three bills T>f exception were taken to opinions, given by the court to the jury, and the cause depends on the correctness of these opinions. The first bill of exceptions is in substance; the plaintiffs at the trial of this cause produced a grant, (setting it forth in words .and figures therein.) This grant is issued to" John. Young, dated the 10th of June 1786, for four thousand acres, bounded as follows•: Beginning.at a black oak corner to land entered by George Jackson, and running thence'N. 3° W. 1001 poles, crossing waters of. Stone Coal creek to a beech, thence N 80° E 641 poles, crossing a branch of said creek to a white oak S. 3° E. 1001 poles, by lands surveyed for Thomas Laidjey, to' a white, oak, and thence S. 80° W. 660 poles, crossing, waters by lands of said waters to the beginning. AIs© the plat-and report of the surveyor, Thomas Haymond, made in this cause, in pursuance of an order, &c. The plaintiff also offered in evidence a number of entries of recent date, made by the defendant Stringer within the bounds of the tract of land designated on said report as John Young’s four thousánd acres, being the land claimed by the plaintiffs; and attempted- to . prove by a witness, that Young, when he made said entries, had heard of the plaintiffs’ claim to the land in controversy. The defendants thereupon offered to introduce as evidence, official copies of entries made by other and third persons, since the date of the plaintiffs’ grant, for the purpose of proving a general opinion that the lands contained in the report and diagram of the surveyor, made in this cause, were vacant at the date of such entries, and to disprove notice to Stringer of the identity of the plaintiffs’ claim when he made the entries under which the defendants claim; but the court declared its opinion to be that the said evidence was inadmissible, and rejected the same. The testimony offered by. the defendants was unquestionably irrelevant. Entries made subsequent to the plaintiffs’ grant, whatever might be the impression under which they were made, could not possibly affect the title, and were therefore clearly inadmissible. This principle has never been controverted; but the plaintiffs in error insist that they had a right to introduce this testimony, in order to rebut other .equally irrelevant testimony which had been offered by the plaintiffs in ejectment. This testimony was the recent entries made by Stringer, and the witness who proved that at the time of making them, he had no notice of the plaintiffs’ claim. This testimony was undoubtedly irrelevant, and had it been opposed, could not have been prqperly admitted. Had the defendant moved the court to instruct the jury that it must be utterly disregarded, that it must not be considered by them as testimony, and this instruction had been refused, the refusal to give it would have been error. The defendant, however, has not taken this course; but has chosen ro repel the testimony by other evidence, which was clearly inadmissible. Whether a case may exist in which improper testimony m'ay be calculated to make such an impression on the jury that no instruction given by the judge can efface it, and whether in such a case testimony not otherwise admissible may be introduced, which is strictly and directly calculated to disprove it, are questions on .which this court does not mean to indicate any opinion. It is unnecessary, because the testimony rejected by .the court is not of this character. Entries mad© subsequent to the plaintiffs’, grant by others* can have,no.tendency to disprove the evidence of notice by the defendant when his entries were made. The*second bill of exceptions is in these words. Upon the trial of this cause, the plaintiffs, in support of the issue on their part, introduced a grant to the lessor of the-plaintiffs in .the word's end figures following“ Patrick Henry, &ci” The defendants thereupon offered to introduce the surveyor’s book of Monongalia county, to prove no such, survey had ever been -returned to the office of said surveyor, and recorded in the book of said office* and further, offered to introduce evidence that Henry Fink, the deputy upon whose survey said grant purports to have issued, resided at the date of the said Survey in Harrison county* and was not a deputy surveyor of Monongalia coúnty. The. defendants offered said evidence to prove the said grant issued without any survey having been made, and that the register of the land office issued said grant without proper authority,, and that the. same was therefore Void. To the giving of which evidence the plaintiffs, by their counsel, objected, and:the court declared its opinion to be, that such evidence could not be given for the purposes aforesaid, and rejected the same. Whereupon the defendants, by their counsel, offered the same evidence to disprove the identity of the land contained in theplaintiffs’ grant with that now claimed by the plaintiffs, and represented by the figure ih the said surveyor’s report. But the court declared its opinion to be, .that the said évidence ought not to be received for the last mentioned purpose. In rejecting this testimony, the court decided that the non appearance of the survey on which the grant of the plaintiffs had been, issued on the book of the surveyor of Monongalia county, where it ought to have been recorded; and the fact that the person who made the survey was not at the time a deputy surveyor of Monongalia county* could not avoid the patent; and that the evidence of those facts was consequently inadmissible. The land law of Virginia directs that within three months after a survey is. made, the surveyor shall enter the plat and certificate thereof in a book, well bound, to be provided by the court of his county, at the county charge. After prescribing- this among other duties, the law proceeds to enact, that any surveyor failing in any of the duties aforesáid, shall be liable to be. indicted, &c.- The law, however, does not declare that the validity of such survey shall depend in any degree on its being recorded. The act also direct?, that the surveyor. “ shall, as soon as it can conveniently be done, and within thrée months at the farthest after making the survey, deliver to his employer or his order, a fair and true plat and certificate of such survey,” &c. This plat and certificate is to be returned into the land office within twelve months at farthest. It may.be returned immediately, and consequently may be returned to the land office before the expiration of the three months allowed to the surveyor for recording it in his book. This plat and certificate of survey is an authority to the register to issue a patent. The. surveyor undoubtedly negjfects his duty, if he fails to record the plat and certificate of survey, and is punishable for this neglect,; but the act furnishes no foundation for the opinion that the validity of the survey ox of the patent is in any degree affected by it. This point occurred in the case or Taylor vs. Brown, 2 Cranch, 234. That was a suit in chancery, brought by a junior patentee to establish an elder, equitable title against the elder patent. Both claimed under old military surveys, made in virtue of military warrants, granted for services under the regal government, an entry of which with the surveyor was not required by law; consequently.the survey was the foundation of a title to be asserted in a court of equity, against a title which was valid at law. The omission of any circumstance affecting his title was not, as in this case, cured by the patent: In answer to the objection that the survey was not recorded within the time prescribed by the act of 1748, which contains a similar provision to that which is found in the present land law, the court said “ this section is merely directory to the surveyor. It does not make the validity of the survey dependent on its being recorded, nor does it give the proprietor any right to control the conduct of the suryeyor in this respect. His title, where it can commence without an entry, begins with-the survey; and it would be unreasonable to deprive him of that title; by the subsequent neglect of an officer not appointed by himself, in not performing an act which the law does not pronounce necessary to his title, the performance of which he hqs.not the means of coercing.” We adhere to this opinion. The circumstance that Fink, who iá stated not to have residéd at the time in Monongalia, nor to have been a deputy surveyor of that county, has also been considered as vitiating the patent. The chief surveyor appoints deputies at his will, and no mode of appointment is prescribed. The survey made by his deputy is examined and adopted by himself, and is certified by himself to the register of the land office. • He'recognizes the actual surveyor as his deputy, in that particular transaction; and this, if it. be unusual or irregular, cannot effect the grant. This point also appears to have been substantially decided in the case of Taylor vs-. Brown. . In that case Taylor’s survey was made by Hancock Taylor, who was. killed by Indians, so that he never returned the plat-'and certificate of survey to William Preston, the principal surveyor, as was required by law. His field notes, however, were brought to the principal surveyor, who. made out a plat and certificate of survey from them. To the objection that the plat and certificate not having been returned to the office, the survey was not completed, the court answered, “ this survey then is in law language made by William Preston. It is confirmed as a survey made by him. The law recognizes it as his survey. . Assuredly then his certificate may authenticate it.” It cannot escape observation, that if these objections were properly overruled when urged in support of the legal title, against an equity dependent entirely on the survey; they can have no weight when urged against the validity of a patent which has been regularly issued in all the forms of law. 'Bt-Virginia, the patent is i he completion of title, and establishes the, performance of every pre-requisite. No inquiry into the regularity of those preliminary measures which ought to precede it, is made in a trial at law. No pase has shown that it may be impeached at law, unless it be for fraud; not legal and technical, but actual and positive, fraud in fact, committed by the person who obtained it; and even this is questioned. In Hambledon et al. vs. Wells, reported in a note in 1 Hen. & Mumf. 307, the defendants in ejectriient in the district court offered evidence to prove that the grant under which the lessor claimed, was defective in several pre-requir sites to a patent. The court of appeals overruíed these objections ; but determined “ that the district court érred in not permitting the appellants to give evidence that the appellee procured the plat on which the patent was obtained to be returned to the office, knowing that an actuál survey had not been made.” In this case the objectionable act was a fraud knowingly committed by the patentee himself. Even this case has been questioned; though not, as far as is known, expréssly overruled. In Witherington vs. M’Donald, 1 Hen. & Mumf. 306, the defendant in ejectment offeréd evidence' to. show that the survey upon which- the plaintiff’s patent was founded was illegal; and also that the patent was obtained upon a certificate signed by Charles Lewis, as clerk of the land office, instead of being signed by the register or his deputy, as is required by law. The defendant excepted to the opinion of the court rejecting this testimony, and appealed to the court of appeals. The judgment was unanimously affirmed in that court. In the course of the trial, the case of Hambledon vs. Wells was mentioned by several of the judges with disapprobation; and it was said, that a single case decided by three judges against two, was not considered as conclusively settling the law. The case of Hoofnagle vs. Anderson, 7 Wheat. 212, was a suit in chancery, brought to obtain a conveyance for a tract of land in the Virginia military reserve, in the state of Ohio, for which Anderson had obtained a patent. After its emanation, the plaintiff had located a military land warrant on the same land, issued for services, performed by an officer ip the Virginia line, on continental establishment. The services performed by-the-officer on whose warrant Anderson’s patent had been issued, were in the state line; though the warrant; was expressed, by mistake, to be for services ¡in the continental line. This court said, “ It is not doubted that a patent appropriates the land. Any defects in the preliminary steps which are required, .by law, are cu.red by the patent. It i's;a title from its date, and has always been held conclusive against all whose rights did. not-commence previous to its emanation;” After the rejection of this testimony, when offered to defeat the patent, it was offered for the purpose of disproving that the land contained in the patent was the same land claimed in the suit The court rejected it when offered for this-parpóse also. It is. admitted to have been indispensably necessary to the plaintiffs’ action, to show, a valid title to the land-in contro-, vérsy; and that the defendants were at liberty to meet this testimony by any evidence tending in any degree to disprove this identity. Rut thé defendants were not at liberty to offer evidence having, no such tendency, but'which might either effect a different purpose, or be wholly irrelevant. The question of its relevancy must be decided by the court; and any error in its judgment would be corrected by an appellate tribunal. Now this court cannot perceive that the omission of the surveyor to record the "survey, or the fact that the survey was made by a . person not a regular deputy, had any tendency to prove that the land described in the patent was not the land for which the suit was instituted. The third exception stated that the plaintiffs had offeréd in evidence a-grant as set forth in the second bill of exceptions, &c. The defendants thereupon offered in evidence a certified copy of an act of the assembly of Virginia-, establishing the county of Harrison in the words and figures following : “ An act for dividing, &-c.” and á copy.of the certificate of survey on which said grant issued, in the words and figures following: “December 13th 1784, &c.” and proved that the land purported to be granted, and the land claimed as haying been surveyed, lay in the bounds of the county of Harrison; established as aforesaid ; and therefore the defendants moved to instruct the jury, that if they are satisfied, from the.testimony, that the land lay in. a.different county from that in which the survey purports'to have been made, that the, grant was void; .and that it was not competent for the plaintiffs tó pontradict the call for the couhty.in the.patent and survey; but the-court then and there, declared its opinion to the jury; that if even the facts aforesaid were.true, they, could not avail'the defendants''in the present action, and that the grant under these circumstances would not be void. The warrant was entered, for the land in controversy with the surveyor uf Monongalia county, on the 7th of April 1784. At the May session of that year the general assembly divided the. county of Monongalia, and created a new county, to take effect in July, by the name of Harrison. The land .on which Young’s.warrant Vims entered lay in the new county. The certificate of survey is dated in December 1784, and, in accordance with the entry, states the land to lay in Monongalia; The grant, conforms, with the certificate. The land law of Virginia enacts that warrants shall be lodged'with the surveyor of the county in which the lands lie, and that the party shall direct the location thereof specially and precisely. Itmlso-epacts, that “every chief surveyor shall proceed with all practicable dispatch to survey, all lands entered for in his office.” No provision is made for the division of a coúnty between the entry and survey. The act establishing the county of Harrison, does not direct that the surveyor of the county of Monongalia shall furnish the surveyor of the new county with copies of, the entries of lands lying in Harrison, and with the warrants on which they were made.. In this state of things the survey was made under the authority of the surveyor of Monongalia, and the plat and certificate on which the patent afterwards issued were transmitted to the land office. It was not till the year 1788 that the legislature passed an act on this subject, which directs that when any county shall be thereafter divided, the surveyor of the new county shall be furnished with copies of the entries of all the surveyed lands lying in his county. If in this uncertain state of the law, the surveyor of Monongalia county has surveyed an entry properly made in his office, for land which by a subsequent division of the county falls into Harrison, and has made his certificate as if the county still remained undivided; ought this error, if it be an error of the officer, to annul the patent, and deprive the unoffending patentee of his property? The counsel for the plaintiffs in error has produced several cases to show that a mistake of this character in a royal grant, or any misinformation to the officers of the crown, will vitiate the instrument. We are not sure that grants which may be supposed to proceed from royal munificence, are to be'placed precisely on the same footing with grants which are the completion of a contract of sale,,every pre-' liminary step in which is taken by officers appointed for the purpose by government, who act without the control of the purchaser. After making his location, he may show the land located, but has nothing to do with the authority of the surveyor, or the language in which he may make out his plat and certificate of survey. In this casé there could have been no imposition attempted on the government by the purchaser. Thé mistake is accounted for, and there can be' no imputation on the intrinsic fairness of the transaction. The misnomer of the county might take place, as has been suggested at the bar, in a case in which all the proceedings were perfectly regular. Had the survey been made the day before the law dividing the county of Monongalia took effect, the plat and certificate of the surveyor must have stated the land to be in Monongalia. The patent could not have issued until six months afterwards, and must have stated the lands to lie in Monongalia; although at the time of its emanation they would in fact lie in Harrison. To say in such a case that the misnomer of the county could avoid the patent, would shock every sense of justice and of law'too much to be maintained. This misnomer of the county then must admit of explanation; and if explanation can be received, the patent is not absolutely void. The circumstances on which the motion to reject the grant, was made, might be very proper for the consideration of the jury, on the question whether it comprehended the land in controversy 5 but do not, we think, destroy its validity. A vast deal of testimony, of which the court can take no notice, is crowded into this record. The bills of exceptions taken to the opinions of the district judge present the only points which we are at liberty to consider. In those opinions there is, we think, no error. The judgment is affirmed, with costs. This cause came on to be heard on the transcript of the record from the district court of the United States for the district of West Virginia, and was argued by counsel 3 on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said district court in this cause be, and the same is. hereby affirmed with costs.