The opinion of the court was delivered by: Mr. Chief Justice Marshall delivered the opinion of the Court.
THIS cause was argued by Mr. Scott for the appellants, and by Mr. Doddridge for the respondents.
This suit was brought originally by John Dunlap, the appellee, in the Circuit Court of the United States, sitting in the District of Ohio, to obtain a conveyance of one moiety of a tract of land in the State of Ohio, which was purchased, as is alleged in the bill, on the joint account of the plaintiff and of his uncle Alexander, one of the defendants in the Circuit Court. Alexander, who made the contract, obtained the conveyance to himself, and afterwards conveyed the land to his son James. Both Alexander and James were made defendants.
Some time about the year 1792 or 1793, Alexander Dunlap purchased from John Fowler an entry of one thousand acres of land on the Scioto river in the Virginia Military District, at the price of 100 pounds, Virginia currency. An agreement was entered into at the time between the plaintiff and the defendant, Alexander, that this purchase should be made in partnership, the plaintiff says, with himself, the defendant says, with John Dunlap, senior, his father. The testimony, however, proves incontestibly that, though the moiety of the purchase money was paid by the father, it was paid for the plaintiff, whom he always considered as the rightful proprietor of the land. The purchase will, therefore, be treated as being made on the joint account of the plaintiff and Alexander Dunlap. James Dunlap claims as a volunteer under Alexander, and his title is dependant on that of his father.
The original entry was made the 7th of August, 1787. It was withdrawn and re-entered on the 22d of April, 1796, and this entry was again withdrawn and re-entered on the 25th of July, 1796. The warrant was re-entered on nearly the same land. The changes were such as might probably be caused by a more perfect knowledge of the country; and the last entry, as surveyed on the 20th of October, 1796, contains about three hundred acres of surplus land. The plat of the surveyor, however, on which the patent issued, specifies only 1000 acres. The right to this surplus constitutes the chief subject of controversy between the parties The plaintiffs contend that the whole entry was purchased and that in such contracts the whole entry passes to the purchaser. The defendants insist that the original contract was for only 1000 acres, and that the surplus land belonged to Fowler. That he afterwards purchased this surplus, not on joint account, but for himself. In 1802 he obtained a grant for the whole tract in his own name, and now claims the whole surplus as his separate property.
The entry is for 1000 acres of land. The survey made on the entry purports to be for 1000 acres of land. The plat and certificate of survey were transferred by John Fowler to Alexander Dunlap, by an endorsement in the following words: 'I do hereby assign all my right, title, and interest to the within land to Alexander Dunlap, and request a grant may issue accordingly.'
This is the only written evidence of the contract, and purports to be a tranfer of the whole entry and survey.
The defendant, Alexander, alleges, in his answer, that the original contract was 'only for 1000 acres of land,' that after the survey he discovered the surplus and mentioned it to Fowler, who said that he had contracted to sell but 1000 acres, and should require additional compensation for the excess. The respondent agreed to give him 300 dollars for the surplus, and Fowler's receipt for that sum, dated the 17th of October, 1800, is annexed to the answer. Though the defendant introduces into his answer the allegation that he purchased only 1000 acres of land, yet it is remarkable, that in the first part of the same answer he states himself to have purchased the entry and also says that the surplus was not discovered until many years afterwards, when the survey was made. The reservation of a surplus, when no surplus existed, in a contract which purported to be made for the entire tract, at a time when the purchase of entries was a common transaction, and the probability that an entry might be so surveyed as to comprehend more land than it called for, or so as to interfere with other entries and lose a part of the land it covered, was a matter of general notoriety, is so extraordinary a circumstance as to justify a critical examination of the testimony by which it is supported.
Alexander Dunlap, in the first instance, states the contract to have been, in fact, what it purports to be, a purchase of the entry, that is, of the entire entry. To reconcile this with the subsequent declaration, that 'the purchase was only of 1000 acres of land,' we must suppose that, as the entry called for that quantity, and he purchased the entry, he might allow himself to say that he purchased only 1000 acres. He drew an inference, however, which the law does not draw, and on which he ought not to have acted until he consulted his partner.
The defendants also sustain their pretensions by the testimony of John Fowler, whose deposition was first taken on the 24th of October, 1817. He identifies the receipt, and swears that it was a fair transaction.
His deposition is taken a second time on the 3d of August 1819. He swears 'that he sold to Alexander Dunlap 1000 acres of land within the bounds of a military survey, made in his name, as assignee of Arthur Lind, on the Scioto river, and, afterwards, about the 7th day of October, 1800, he sold to said Alexander Dunlap, for the consideration of 300 dollars, all the surplus contained within the bounds of the said military survey.'
This deposition states the original contract as if a survey, not an entry, had been the subject of it; and as if the transfer had been of a specified portion of that survey, not of the whole.
On the 18th of November, 1820, a copy of the plat and certificate of survey was obtained from the general land office, by which it appeared that the survey was made on the 20th of October, 1796, ...