Elmendorf, Appellant v. Taylor and Others

Feb. 20th. 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 of their being made. This survey had thus become a matter of record: and subsequent purchasers 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.1 a 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 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.2 b 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.3 c The statute of limitations is made to protect against ancient claims, whether well or ill founded, the evidences of which may have been lost, or obscured by time.4 d March 5th.