Hollingsworth v. Barbour
29 U.S. 466

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U.S. Supreme Court

Hollingsworth v. Barbour, 29 U.S. 4 Pet. 466 466 (1830)

Hollingsworth v. Barbour

29 U.S. (4 Pet.) 466




H. entered, with the proper surveyor for the District of Kentucky, 45,000 acres of land in the County of Washington in that state by virtue of Treasury warrants. A survey was made thereon in 1786, and a patent for the land issued

to H. in 1797. The warrants were purchased by the ancestor of the complainant,

by a parol agreement with H. previous to their entry. Before this agreement H., in connection with a person who owned other warrants, had made an agreement with S. to locate their respective warrants, which agreement was ratified by the complainant, who paid a sum of money to S. for fees of patenting, and agreed to make S. a liberal compensation for his services, and S. located and surveyed under the warrants 45,000 acres, returned the surveys to the office, and paid the fees of office. The locating and surveying of the warrants, and all the necessary steps for completing the title, were done by S., who was employed first by H. and afterwards by the complainant, who paid in money for the same. H. being deceased and having made no conveyance of the legal title to the lands, the complainant filed a bill in the County of Washington "against the unknown heirs of H.," and in 1815 a decree was made by that court for a conveyance of the lands by the unknown heirs, or in their default by a commissioner appointed in the decree to make the same. Held that the conveyance was not authorized by the laws of Kentucky in force at the time of the decree.

By the general law of the land, no court is authorized to render a judgment or decree against anyone or his estate until after due notice by service of process to appear and defend.

The acts of the Assembly of Kentucky authorizing proceedings against absent defendants referred to and examined.

The statute under which the proceedings of the complainants in this case were instituted authorized the court to make a decree for a conveyance in a suit for such a conveyance only in the case in which the complainant claims the land as locator or by bond or other instrument in writing.

The claim of "a locator" is peculiar to Kentucky, and has been universally understood by the people of the country to signify that compensation of a portion of the land located, agreed to be given by the owner of the warrant to the locator of it for his services.

The record of proceedings against "unknown heirs" is no evidence that any such heirs existed, and the decree and deed made in pursuance of it cannot avail to pass any title without some evidence that there were some heirs.

Page 29 U. S. 467

MR. JUSTICE BALDWIN delivered the opinion of the Court.

This was a bill filed on the equity side of the court by the appellants setting forth that on 21 February, 1784, a certain John Abel Hamlin entered, with the proper surveyor for the District of Kentucky, 45,000 acres of land, lying in the County of Washington by virtue of sundry Treasury warrants, issued by the State of Virginia. That a survey was made thereon on 13 April, 1786, and a patent issued 8 June, 1798, to the said John Abel Hamlin. That previous to the date of such entry, the complainant had purchased from the said Hamlin the warrants on which the entry and surveys had been made for the sum of $3,700, which he paid. That although the entries, survey, and patent were in the name of said Hamlin, they were for the benefit of the complainant, who alleged the equitable title thereto as belonging to him. That Hamlin being dead, without having made a conveyance, the complainant in 1814 exhibited his bill in chancery in the Circuit Court for the County of Washington against the unknown heirs of said Hamlin, and obtained a decree of said court ordering them to convey to him the legal title of said lands by a day named in said decree, in default whereof the court appointed a commissioner for that purpose, who, by deed approved by the court, conveyed the same to the complainant on 15 August, 1815, by virtue of which decree and conveyance he became vested with the right, title, and interest of said Hamlin to all the lands embraced in the patent of the commonwealth to him.

The bill then sets forth that the defendants, sixty-six in number, had obtained grants of various portions of the land patented to Hamlin, and were in possession of the same by virtue of warrants, entries, and surveys adverse to his, and concludes with a prayer against the appellees, the respondents below, that they may be compelled to convey to the complainant the land claimed by them respectively under their patents, which were elder than the one to Hamlin.

In support of the allegations of his bill, the complainant produced the entries, survey, and patent before mentioned, but offered no evidence of any contract, written or parol,

Page 29 U. S. 468

between him and Hamlin for the sale of these lands, and did not attempt to rest his claim to hold the title of Hamlin on any other authority than the decree of the Circuit Court of Washington County, and the deed of the commissioner appointed to execute the conveyance to him of the lands included in the patent. In the court below, the defendants, in their answers, made various objections to the entries on Hamlin's warrants; set up title in themselves, by the patents, under which they claimed and their long possession of the lands within their respective surveys, for a period in many of the cases exceeding, and in few falling short of the period prescribed by the act of limitation.

If this Court entertained a doubt of the validity of the decree rendered by the Circuit Court of the County of Washington ordering a conveyance of the title of Hamlin in the lands in question to Hollingsworth, we should feel it our duty to enter into the consideration of all the questions arising on the bill, answer, and exhibits in this case.

When the case was first reached on the calendar, no counsel appeared on the part of the appellants. The counsel of the appellees brought the case before the court and presented the various points which arose at the hearing in the circuit court, beginning with the first in order, the right of Hollingsworth to put himself in place of Hamlin, as to a remedy against the appellants. He was informed by the court that, as then advised, it did not wish to hear him on the other points. Counsel afterwards appearing for the appellants and requesting to be heard, the court directed an argument on what then appeared to them the turning question on the whole case. We have carefully weighed the reasons urged for a reversal of the decree of the court below on that ground, and still retain the opinion formed on the ex parte argument that the decree in the case of Hollingsworth against the unknown heirs of Hamlin, and the deed executed by the commissioners pursuant thereto, was void and wholly inoperative to transfer any title, and that Hollingsworth or his heir had no right to call on the appellees to transfer their prior legal title to him, as representing Hamlin or his heirs. That be the title of the

Page 29 U. S. 469

appellees good or bad, the complainant had no equity against them. Being a stranger to Hamlin's title, he had no right to any conveyance to himself or any relief sought for by the bill now under the consideration of the court.

The original bill against the unknown heirs of Hamlin thus deduces the complainant's right to a decree for the conveyance of the legal title vested in Hamlin or his heirs by the entries, survey, and patent before referred to: that Hamlin was indebted to the complainant in the sum of about $4,000 by book account; that he had absconded, and complainant took a writ of attachment against his effects, out of the Court of Common Pleas of the County of Philadelphia of September term 1784; that in execution of that writ the sheriff broke open the counting house of Hamlin, but found no property therein except thirty-nine Virginia warrants for 90,000 acres of land, of which he took possession, but made no return of them on the writ; that Hamlin sometime afterwards returned to Philadelphia, being wholly insolvent, and proposed to complainant that he should take the warrants for the sum of $3,700, to which he assented, and gave Hamlin a credit to that amount on the account; that the warrants were accordingly delivered to the complainant, but without any transfer or assignment in writing. That before the circumstances of Hamlin became desperate, he had, in cooperation with a person who owned some Virginia warrants, made an agreement with Benjamin Stevens of New Jersey to locate their respective warrants, which agreement was ratified by the complainant, who paid to Stevens

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