Lindsey v. Lessee of Miller
31 U.S. 666

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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

ERROR TO THE CIRCUIT COURT OF THE

UNITED STATES FOR THE DISTRICT OF OHIO

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

MR. JUSTICE McLEAN delivered the opinion of the Court.

This is a writ of error brought to reverse a judgment of the Circuit Court for the District of Ohio. The plaintiff in the court below prosecuted an action of ejectment to recover possession of four hundred and fifty and a half acres of land lying in what is called the Virginia Military District and known by entry numbered 12,495.

Stephen Lindsey and others were made defendants, and were proved to be in possession of the land in controversy.

On the trial, the plaintiff exhibited a patent for the land bearing date 1 December, 1824, which was founded on an entry and survey executed in the same year.

The defendants offered in evidence a patent issued by the Commonwealth of Virginia in March, 1789, to Richard C. Anderson for the same land, which was rejected by the court. They then gave in evidence an entry and survey of the land made in January, 1783, which were duly recorded on 7 April in the same year, and proved possession for upwards of thirty years.

The plaintiff then offered in evidence the warrant on which the entry and survey of the defendants were made, accompanied by proof that the military services for which said warrant issued were performed in the Virginia state line, and not on the continental establishment. This fact was apparent on the face of the warrant. To the admission of this evidence the defendants objected.

The defendants then requested the court to instruct the jury that the uninterrupted possession for more than twenty-one years was a bar to the plaintiff's recovery. That this possession, under the entry and survey before stated, ought to protect them against the title of the plaintiff. The court refused to give the instructions, on which ground and because the court admitted the evidence offered by the plaintiff, which

Page 31 U. S. 673

was objected to by the defendants, a bill of exceptions was taken which presents to this Court the above questions.

That the possession of the defendants does not bar the plaintiff's action is a point too clear to admit of much controversy. It is a well settled principle that the statute of limitations does not run against a state. If a contrary rule were sanctioned, it would only be necessary for intruders upon the public lands to maintain their possessions until the statute of limitations shall run, and then they would become invested with the title against the government and all persons claiming under it. In this way the public domain would soon be appropriated by adventures. Indeed it would be utterly impracticable by the use of any power within the reach of the government to prevent this result. It is only necessary, therefore, to state the case in order to show the wisdom and propriety of the rule that the statute never operates against the government.

The title under which the plaintiff in the ejectment claimed emanated from the government in 1824. Until this time, there was no title adverse to the claim of the defendants. There can therefore be no bar to the plaintiff's action.

To understand the objection to the validity of the defendant's title under their entry, survey and patent, it will be necessary to advert to the conditions on which the district of country within which the location was made was ceded by Virginia to the United States.

By her deed of cession, which was executed in behalf of the commonwealth by her delegates in Congress in 1784, Virginia conveyed to the United States the territory northwest of the River Ohio with certain reservations and conditions, among which was the following:

"That in case the quantity of good land on the south east side of the Ohio, upon the waters of the Cumberland River, and between the Green River and Tennessee River, which have been reserved by law for the Virginia troops on continental establishment, should, from the North Carolina line bearing in further upon the Cumberland lands than was expected, prove insufficient for their legal bounties, the deficiency should be made up to the said troops in good lands, to be laid off between the Rivers Sciota and Little Miami, on the northwest side of the River Ohio; in such

Page 31 U. S. 674

proportions as have been engaged to them by the laws of Virginia."

From this condition it is clear that until the good land was exhausted in the district of country named, the holders of Virginia warrants had no right to locate them in the above reservation. This is the construction given by Congress to the deed of cession, as appears from a resolution adopted by them on the subject. It was also 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, by an act of Congress, the proper officer was authorized to

"issue patents on surveys which have been, or may be made within the territory reserved by the State of Virginia, northwest of the River Ohio, and being part of her cession to Congress, on warrants for military services issued in pursuance of any resolution of the legislature of that state, previous to the passing of that act, in favor of persons who had served in the Virginia Line on the continental establishment."

Several laws were subsequently passed in relation to this reservation, and to the rights of warrant holders, in all of which a reference is made to warrants issued for services performed on the continental establishment. This was in conformity to the deed of cession, and although not necessary, was deemed proper in giving time to locate warrants in this district in order to prevent the semblance of right from being acquired by virtue of locations made on other warrants.

It was known that Virginia had issued other military warrants for services in her state line which gave no right to the holder to make an entry in the above district.

In the Act of the 2 March, 1807, to extend the time for locating military warrants in the reserved district and for other purposes, it is provided

"that no locations within the above mentioned tract shall, after the passing of that act, be made on tracts of land for which patents had been previously

Page 31 U. S. 675

issued or which has been previously surveyed, and any patent obtained contrary to the provisions of that act was declared to be null and void."

As by the deed of cession the fee to this district passed to the United States, the patents for lands entered and surveyed within it necessarily emanated from the general government. It is therefore clear that the circuit court did not err in rejecting, as evidence the patent which was issued by Virginia for this land several years subsequent to the deed of cession. But the defendants below rely upon their survey as being protected by the act of 1807. This is the main point in the case, and it becomes necessary fully to consider it.

The entry and survey of the defendants were made before the deed of cession, but it is not contended that at the time this location was made the land within this district, under the laws of Virginia, was liable to be appropriated in satisfaction of warrants granted by the state for military services in the state line. The fact, therefore, of this location's having been made while the fee of this district remained in Virginia cannot give it validity, as the entry was not made in pursuance of the laws of Virginia.

By the act of 1807, any patent is declared to be void that shall be issued on an entry of land which had been previously patented or surveyed. This language is general, and literally applies to all surveys which had been previously made, whether made with or without authority. Could Congress have designed by this act to protect surveys which had been made without the semblance of authority? If an intruder, without a warrant, had marked boundaries in a survey, either large or small, would it be protected under the act? When the object and scope of the act are considered, and other laws which have been enacted on the same subject, and the deed of cession are referred to, it would seem that much difficulty cannot be felt in giving a correct construction to this provision.

In making the cession, Virginia only reserved the right of satisfying warrants issued for military services in the state line on the continental establishment. Warrants of no other description, therefore, could give any right to the holder to any land in this district. In all the acts subsequently passed giving further time for the location of warrants in this reservation,

Page 31 U. S. 676

there is a reference to the kind of warrants which may be located. And in the act of 1807, the "officers and soldiers of the Virginia Line on continental establishment are named as entitled to land in the district."

No act of Congress passed, subsequent to the deed of cession, which enlarged the rights of Virginia to this district, 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 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, which is the same thing, under a void authority.

It is known to all who are conversant with land titles in this district that the mode pursued in making entries and surveys under the Virginia land law, gave rise to the most ruinous litigations. The docket of this Court contains abundant evidence of this fact. By the law of 1807, Congress intended to lessen litigation.

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 be made in pursuance to 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 by the deed of cession.

The case of Miller v. Kerr, 7 Wheat. 1, is cited by the defendants' counsel. In this case, the register of the land office of Virginia had by mistake given a warrant for military services in the continental line on a certificate authorizing a warrant for services in the state line. An equity acquired under this warrant was set up against a legal title subsequently obtained, but the court sustained the legal title. It considered the register a ministerial officer, and that his official acts as such might be

Page 31 U. S. 677

inquired into. This entry was made subsequent to the deed of cession, and the court seemed to think if this territory had not been ceded, there would have been great force in the argument that as the holder was entitled to the land for services rendered, and as, by the mistake of the officer, he had been prevented from locating the warrant in Kentucky, and as no provision existed by which his claim could be satisfied, if the entry made should not be sustained, that under such circumstances it should be held valid. The case was a hard one, but the Court was clear that by virtue of the warrant thus issued no right could be acquired in the Virginia reservation.

The case of Hoofnagle v. Anderson, 7 Wheat. 212, is strongly relied on as a case, if not directly in point, that has at least a strong bearing on the question under consideration. In that case, the Court decided that a patent is a title from its date, and conclusive against all those whose rights did not commence previous to its emanation. The entry on which this patent was founded was made in the Virginia reservation, by virtue of a warrant which was in fact issued for services in the state line, but it was stated on its face to have been issued for services on the continental establishment.

This case would have been similar to the one under consideration if the patent had not been issued, but the decision turned against the subsequent locator on the ground that the patent appropriated the land.

The Court said that the "principle is well settled that a patent is unassailable by any title commenced after its emanation." The case of Jackson v. Clark, 1 Pet. 628, it is contended, bears a close analogy to the one under examination. That was a case where the act of 1807 was decided to protect a survey although made on a warrant which had been previously located and not withdrawn. But the Court sustained the survey on the ground that it was not a void act, though it might be irregular. That to the purchaser of the survey, there was no notice of irregularity, much less of fraud.

The warrant was valid, and upon its face authorized the entry. The entry had been regularly made on the books of the surveyor, and the survey had been executed by a regular officer, and the only objection to the validity of the proceedings was that the warrant had been previously located. This

Page 31 U. S. 678

location, the Court said, might be withdrawn, and that would remove all objections to the subsequent proceedings. And it intimated that the powers of a court of chancery were sufficient to have compelled the original locator to withdraw the first entry or enjoin him from the use of it, so as to remove the objections to the second entry. Under all the circumstances of the case, it considered that the second survey was protected from subsequent entries by the act of 1807.

It said

"If it be conceded that this provision in the above act was not intended for the protection of surveys which were in themselves absolutely void, it must be admitted that it was intended to protect those which were defective, and which might be avoided for irregularity."

There can be no doubt that Congress did intend to protect surveys which had been irregularly made, and it is equally clear that it did not design to sanction void surveys. A survey is void unless made under the authority of a warrant, and it need not be stated again that the warrant under which the survey of the defendants in the circuit court was made gave no right to the holder to appropriate land north of the Ohio.

Neither the entry nor the survey is a legal appropriation of the land. The claimant is only vested with the equitable estate until his entry and survey have been carried into grant.

This Court decided in the case of Taylor's Lessee v. Myers, 7 Wheat. 23, that the act of 1807 did not protect a survey from which the entry had been withdrawn.

In the argument it was insisted that the entry and survey, having been made in the name of Richard C. Anderson, the principal surveyor, were void under the laws of Virginia; that by those laws he was prohibited from making an entry in his own name.

As there are other points in the cause on which the decision may rest, it is unnecessary to investigate this one further than to observe that under other circumstances it might be entitled to serious consideration.

This is a case of great hardship on the part of the defendants below, and regret is felt that the principles of law which are involved in the cause do not authorize a reversal of the judgment given by the circuit court.

Page 31 U. S. 679

The judgment must be affirmed with costs and the cause remanded for further proceedings.

MR. JUSTICE BALDWIN dissented, and gave an opinion in writing which was not delivered to the reporter.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and was argued by counsel, on consideration whereof it is ordered and adjudged by this Court that the judgment of the said circuit court in this cause be and the same is hereby affirmed with costs and that this cause be and the same is hereby remanded to the said circuit court for further proceedings to be had therein according to law and justice and in conformity to the judgment of this Court.

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