Lindsey v. Lessee of Miller
31 U.S. 666 (1832)

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U.S. Supreme Court

Lindsey v. Lessee of Miller, 31 U.S. 6 Pet. 666 666 (1832)

Lindsey v. Lessee of Miller

31 U.S. (6 Pet.) 666

Syllabus

Ejectment. The plaintiff claimed the land in controversy, which was situated in the Virginia Military District in the State of Ohio under a patent from the United States dated l December, 1824, founded on an entry and survey executed in the same year. The defendants offered in evidence a patent, issued by the State of Virginia, in March, 1789, to Richard C. Anderson for the same land, which was rejected by the court, and they gave in evidence an entry and survey of the land made in January, 1783, recorded on 7 April in the same year, and proved possession for upwards of thirty years. The warrant under which the defendants' survey was made stated that the services for which it issued were performed in the Virginia state line, and not on the continental establishment. On 1 March, 1786, Virginia conveyed to the United States the territory northwest of the River Ohio, with the reservation of such a portion of the territory, ceded between the Rivers Scrota and Little Miami, as might be required to make up deficiencies of land on the south side of the Ohio, called the Green River lands, reserved for the Virginia troops on continental establishment. The holders of Virginia warrants had no right to locate them in the reservation until the good land on the south side of the Ohio was exhausted, and it was deemed necessary that Virginia should give notice to the general government when the Green River lands were exhausted, which would give a right to the holders of warrants to locate them in the district north of the Ohio. Lands could be entered in this district only by virtue of warrants issued by Virginia to persons who had served three years in the Virginia Line on the continental establishment.

In May, 1800, Congress authorized patents to issue on surveys made under Virginia warrants issued for services on the continental establishment; warrants issued by Virginia for services in her state line gave no right to the holder to make an entry in the reserved district.

The land in the possession of the defendant was surveyed under a warrant which did not authorize the entry of lands in the reserved district. The possession of the same did not bar the plaintiff's action.

It is a well settled principle that the statute of limitations does not run against a state. If a contrary rule were recognized, it would only be necessary for intruders on the public lands to maintain their possessions until the statute of limitations shall run, and they then would become invested with the title against the government and all persons claiming under it.

The entry and survey of the defendant were made before the deed of cession; at the time the location was made, the land in the reserved district was not liable to be appropriated in satisfaction of warrants granted by the State of Virginia for military services in the state line.

No act of Congress was passed subsequent to the deed of cession, which enlarged the rights of Virginia to the lands in the military contract beyond the terms of the cession. Longer time has repeatedly been given for locations, but no new rights have been created. It would seem, therefore, to follow that when the

Page 31 U. S. 667

act of 1807 was passed for the protection of surveys, Congress could have designed to protect such surveys only as had been made in good faith; they could not have intended to sanction surveys made without the shadow of authority, or, what is the same thing, under a void authority.

It is essential to the validity of an entry that it shall call for an object notorious at the time and that the other calls shall have precision. A survey, unless carried into grant, cannot aid a defective entry against one made subsequently. The survey, to be good, must have been made in pursuance of the entry.

To cure defects in entries and surveys was the design of the act of 1807. It was intended to sanction irregularities which had occurred without fraud in the pursuit of a valid title. In the passage of this act, Congress could have had no reference but to such titles as were embraced in the deed of cession.

This was an ejectment in the Circuit Court of Ohio, instituted by the defendants in error for the recovery of a tract of land situated in the Virginia Military District in the State of Ohio. The title of the plaintiff's lessor was derived from a patent issued by the United States, dated 1 December, 1824, for the premises in controversy, of which the defendants were in possession.

On the trial, the defendants offered in evidence the copy of a survey, bearing date 5 January, 1788, recorded on 7 April in the same year. The entry and survey, which comprehended the land in dispute, were in the name of Richard C. Anderson, and the latter purported to be made for four hundred and fifty-four acres of land, part of a military warrant No. 2481 on the Ohio River on the northwest side, &c.

The defendants then read in evidence the Act of Congress of 3 March, 1807, authorizing patents for land located and surveyed by certain Virginia revolution warrants, and the act amending the same passed in March, 1823. They also offered in evidence the deposition of James Taylor to prove that the defendants had been in possession of the premises for upwards of thirty years, which deposition was admitted by the court.

The plaintiff then offered evidence to prove that the warrant on which the defendants' survey was predicated was issued by the State of Virginia on 12 February in the year 1784, for services performed in the Virginia state line,

Page 31 U. S. 668

and not in the continental establishment. The defendants objected to this evidence, but the court overruled the objection and permitted the same to go to the jury. The defendants, by their counsel, then moved the court to instruct the jury that if they believed that the survey under which the defendants claim was founded on the warrant so admitted in evidence by the court, it did not render the survey void, but that the survey and possession, under the acts of Congress referred to, constituted a sufficient title to protect the defendants in their possession. The court refused to give the instruction, and directed the jury that if it believed the survey of the defendants was founded on the warrant offered in evidence by the plaintiff, then that the survey was void, and that the survey and entry, together with the possession of the defendants, were no legal bar, under the acts of Congress aforesaid, to the plaintiff's right of recovery. They further requested the court to instruct the jury that if it believed the defendants had the uninterrupted possession of the premises for more than twenty-one years since the commencement of the act of limitations in the State of Ohio and before the commencement of this suit, that then the defendants had a title by possession unless the plaintiffs came within some one of the exceptions of the statute. The court refused to give such instructions.

They further requested the court to instruct the jury that, if it believed the defendants were innocent purchasers without notice of the warrant offered in evidence by the plaintiff, that the defendants were entitled to a verdict. The court refused to give such instructions.

To these proceedings of the court the defendants excepted, and a verdict and judgment having been rendered for the plaintiff, they prosecuted this writ of error.

Page 31 U. S. 672

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