Hughes v. Clarksville
31 U.S. 369

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U.S. Supreme Court

Hughes v. Clarksville, 31 U.S. 6 Pet. 369 369 (1832)

Hughes v. Clarksville

31 U.S. (6 Pet.) 369

ERROR TO THE DISTRICT COURT OF THE

UNITED STATES FOR THE DISTRICT OF INDIANA

Syllabus

Construction of the Act of the Legislature of Virginia entitled

"An act fur the locating and surveying the one hundred and fifty thousand acres of land granted by a resolution of the assembly to George Rogers Clark and the officers and soldiers who assisted in the reduction of the British post in the Illinois,"

passed on 18 October, 1790, of the act of 1783, entitled "An act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the grant," and also of the act entitled, "An act to amend an act entitled An act for surveying and, apportioning the lauds granted to the Illinois regiment,' and establishing a town within the grant," passed in 1790.

Construction of the act of the Legislature of Virginia, passed in December, 1783, adding the territory northwest of the River Ohio to the United States, and of the deed of cession of the same territory, executed on the lot of March, 1784.

That a lessee will not be allowed to deny the title of his lessor, is admitted, but it is not admitted that a contract executed for the purpose of conveying and acquiring an estate in fee, but wanting that legal formality which is required to pass the title, may be converted into an agreement contemplated by neither party, and by this conversion estop the purchaser, while it leaves the seller free to disregard the express stipulation.

The facts are stated in the opinion of the court.

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

This is a writ of ejectment originally brought by Joseph Bartholomew and others, trustees of the Town of Clarksville, in the Circuit Court for the County of Clark in the State of Indiana, and removed on the petition of the original defendant into the court of the United States for that district.

The parties agreed on a case in the following words:

"John Doe ex dem. Joseph Bartholomew, &c., Trustees of the Town of Clarksville v. James Hughes."

"The lessors of the plaintiff derive their title to the lands in

Page 31 U. S. 370

the declaration mentioned, from the State of Virginia, by virtue of an Act of the General Assembly of said State of Virginia, passed in the year 1783, and entitled 'an act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant,' and also of another act of the General Assembly of the State of Virginia, passed in the year 1790, entitled"

"an act to amend an act entitled an act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant,"

which said acts are in the words and figures following, to-wit:

"An act for the locating and surveying the one hundred and fifty thousand acres of land granted by a resolution of assembly, to Col. George Rogers Clark, and the officers and soldiers who assisted in the reduction of the British post in the Illinois. Be it enacted by the general assembly that William Fleming, John Edwards, John Campbell Walker Daniel, gentlemen, and George Rogers Clark, John Montgomery, Abraham Chaplain, John Bailey, Robert Todd, and William Clark, officers in the Illinois regiment, shall be, and they are hereby constituted a board of commissioners, and that they, or a major part of them, shall settle and determine the claims to land under the said resolution. That the respective claimants shall give in their claims to the said commissioners, on or before 1 April, 1784, and, if approved and allowed, shall pay down to the commissioners, one dollar for every hundred acres of land, such claim, to enable them to survey and apportion the said lands. The said commissioners shall appoint a principal surveyor, who shall have power to appoint his deputies, to be approved by the said commissioners, and to contract with him for his fees. That from and after the 1 April, 1784, the said commissioners, or a major part of them, shall proceed with the surveyor, to lay off the said hundred and fifty thousand acres of land on the northwest side of the Ohio River, the length of which shall not exceed double the breadth, and after laying out one thousand acres, at the most convenient place therein for a town, shall proceed to lay out and survey the residue, and divide the same by fair and equal lots among the claimants, but no lot or survey shall exceed five hundred acres. That the said commissioners, in their apportionments

Page 31 U. S. 371

of the said land, shall govern themselves by the allowances made by law to the officers and soldiers in the continental army. That the said commissioners shall, as soon as may be, after the said one hundred and forty-nine thousand acres shall be surveyed, cause a plat thereof, certified on oath, to be returned to the register's office, and thereupon a patent shall issue to the said commissioners, or the survivors of them, who shall hold the same in trust for the respective claimants, and they, or a major part of them, shall thereafter, upon application, execute good and sufficient deeds for conveying the several portions of land to the said officers and soldiers."

"And be it further enacted that a plat of the said one thousand acres of land laid off for a town shall be returned by the surveyor to the Court of the County of Jefferson, to be by the clerk thereof recorded, and thereupon the same shall be and is hereby vested in William Fleming, John Edwards, Walker Daniel, John Campbell George Rogers Clark, John Montgomery, Abraham Chaplain, John Bailey, Robert Todd, and William Clark, gentlemen, trustees, to be by them, or any five of them, laid off into lots of half an acre each, with convenient streets and public lots, which shall be and the same is hereby established a town by the name of Clarksville. That after the said land shall be laid off into lots and streets, the said trustees or any five of them shall proceed to sell the same or so many as they shall judge expedient at public auction for the best price that can be had, the time and place of sale being previously advertised two months, at the courthouses of the adjacent counties, the purchasers, respectively, to hold their said lots subject to the condition of building on each a dwelling house twenty feet by eighteen, at least, with a brick or stone chimney, to be finished within three years from the day of sale, and the said trustees or any five of them are hereby empowered to convey the said lots to the purchasers thereof in fee simple, subject to the condition aforesaid, and the money arising from such sale shall be applied by the said trustees in such manner as they shall judge most beneficial for the inhabitants of said town. That the said trustees or the major part of them shall have power from time to time to settle and determine all disputes concerning the bounds of said lots and to settle such rules and orders for the regular building

Page 31 U. S. 372

thereon as to them shall seem best and most convenient, and in case of death, removal out of the county, or other legal disability of any of the said trustees, the remaining trustees shall supply such vacancies by electing others from time to time who shall be vested with the same powers as those particularly nominated in this act. The purchasers of the said lots, so soon as they shall have saved the same according to their respective deeds of conveyance, shall have and enjoy all the rights, privileges, and immunities which the freeholders and inhabitants of other towns, in this state, not incorporated, hold and enjoy. If the purchaser of any lot shall fail to build thereon within the time before limited, the said trustees, or a major part of them, may thereupon enter into such lot, and may either sell the same again and apply the money towards repairing the streets or in any other way for the benefit of the said town or appropriate such lot to the public use of the inhabitants of the said town."

"An act to amend an act entitled 'An act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant,' passed 10 December, 1790. Be it enacted by the general assembly that so much of the act entitled 'an act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant' as requires that one thousand acres of land for a town shall be laid off into half acre lots, and each to be improved by building, subject to the condition of building on each a dwelling house twenty feet by eighteen at least, with a brick chimney, to be finished within three years from the day of sale, is hereby repealed."

"The trustees of the said town are hereby directed to convey to those who have already purchased a lot or lots in said town, titles in fee simple, although the said lots may not have been improved agreeably to the requisitions of the said recited act."

"And be it further enacted, that the said trustees, or any five of them, are authorized and required to sell at public auction the residue of the said one thousand acres of land, for the best price that can be had for the same at twelve months' credit, in lots not exceeding twenty acres, nor less than half an acre, taking from the purchasers bond, with approved security, for the payment thereof, and when received, to be applied to the

Page 31 U. S. 373

benefit of the said town, notice of the time and place of such sale being previously advertised two months successively in the Kentucky Gazette."

"And be it further enacted, that the said trustees shall convey to the said purchasers titles in fee, and that the said lots shall not be liable to forfeiture on account of any failure in improving the same, but that the titles thereof shall be absolute and unconditional, anything in the said recited act to the contrary notwithstanding."

In pursuance of the act first above recited, the board of commissioners thereby constituted appointed William Clark principal surveyor and proceeded to lay off the one hundred and fifty thousand acres of land, and laid off for a town the said one thousand acres of land, a plat of which was, by the said surveyor, returned to the Court of the County of Jefferson, to be by the clerk thereof recorded, which survey and return is in the words and figures following, to-wit, and of which survey the annexed map is substantially a copy, upon which the land in controversy is correctly represented between the letters X and Y, and between two dotted lines upon the margin of the river (plat omitted).

"Surveyed one thousand acres of land on the northwest side of the Ohio River for the Town of Clarksville, agreeably to an act of the assembly entitled 'An act for the surveying and apportioning the lands granted to the Illinois regiment and establishing a town within the said grant.' Beginning on the bank of the Ohio River at a small white thorn, white oak, and hickory a little below the mouth of Silver Creek; running thence north, crossing Silver Creek twice, one hundred and seventy poles, to a sweet gum, beech, and sugar tree; thence east, crossing said creek again, three hundred and twenty-six poles, to three beeches; thence south 40

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