A court in equity has no jurisdiction over a suit based upon an
equitable title to real estate unless the nature of the relief
asked for is also equitable.
A court of the United States sitting in equity cannot control
the principal surveyor of the Virginia Military District in the
discharge of his official duties or take charge of the records of
his office or declare their effect to be other than what appears on
their face.
The plain meaning of the Act of March 23, 1804, 2 Stat. 274, to
ascertain the boundaries of the Virginia Military District in Ohio
is that a failure within five years to make return to the Secretary
of War of the survey of any tract located within the territory,
made previous to the expiration of the five years, should discharge
the land from any claim founded on such location and survey and
extinguish all rights acquired thereby.
The series of acts relating to this district, beginning with the
Act of March 23, 1804, and ending with the Act of July 7, 1838, 5
Stat. 282, as revived and continued in force by later acts, are to
be construed together, and as if the third section of the Act of
March 23, 1804, had been repeated in every act of the series.
The Act of March 3, 1855, 10 Stat. 701, allowing persons who had
made entries before January 1, 1852, two years time to return their
surveys did not apply to those who had made both entries and
surveys before the latter date.
The land office referred to in § 2 of the Act of May 27, 1880,
21 Stat. 142, relating to the Virginia Military District in Ohio is
the General Land Office.
On the pleas and issues in this cause, the complainant has
failed to make good the case stated in the bill.
Page 113 U. S. 551
MR. JUSTICE WOODS delivered the opinion of the Court.
This was a bill in equity filed November 20, 1879, to establish
the title of the plaintiff to, and recover the possession of, a
certain tract of land in the County of Logan, in the State of Ohio,
and for an account of rents and profits. Filling the many blanks
left in the bill by resort to the evidence, the case made thereby
was substantially as follows:
On July 19, 1822, warrant No. 6,508 for 200 acres of land was
granted by the State of Virginia to the grandfather of the
plaintiff, Archibald Gordon, late of Cecil County, Maryland, in
consideration of his services as a private in the Virginia line
on
Page 113 U. S. 552
the Continental establishment in the war of the revolution. On
January 21, 1823, he caused his warrant to be located by entry No.
12,017 in the Virginia Military District in the State of Ohio, and
the entry to be duly recorded. On March 25 1823, he caused the
entry to be surveyed by Thomas J. McArthur, a deputy surveyor of
said military district, and on November 5, 1824, he had the survey
recorded in the office of the principal surveyor of the district.
Archibald Gordon died intestate about the year 1829, leaving
Archibald Gordon, Jr., late of Baltimore, Maryland, his only child
and heir at law. Archibald Gordon, Jr., died intestate about the
year 1833 or 1834, leaving the plaintiff and her sister, Sarah
Priscilla Gordon, his only children and heirs at law. The
plaintiff, on October 31, 1854, intermarried with Joseph B.
Fussell, who died December 6, 1864, and the plaintiff's sister,
Sarah Priscilla, having intermarried with one William H. Kelly,
died intestate on May 12, 1853, leaving issue one daughter, her
only child, Mary Elizabeth Kelly. William H. Kelly died at a date
not mentioned, leaving his daughter, Mary Elizabeth, surviving him,
who died at the age of nine years six months and three days without
issue, leaving the plaintiff her sole heir at law. The plaintiff
claimed that by direct inheritance from her father, Archibald
Gordon, Jr., and collateral inheritance from her niece, Mary
Elizabeth Kelly, she was seized of an equitable estate in fee in
the lands covered by survey 12,017, and entitled to the immediate
possession thereof.
It was further alleged that on October 4, 1851, Daniel Gregg,
one of the defendants, made an entry on the records of the
principal surveyor of the district, No. 16,070, of 130 acres on
military warrant No. 442, and on December 20, 1851, he procured one
hundred acres of his entry to be so surveyed as to cover one
hundred acres of land appropriated by the entry and survey of
Archibald Gordon, No. 12,017, and on November 2, 1855, he caused
the survey to be recorded, and on November 20, 1855, obtained a
patent of that date for the lands described in this survey. The
bill further averred that the entry, survey, and patent of Gregg
were all made and obtained in violation of the proviso of section 2
of the Act of March 1, 1823, entitled
Page 113 U. S. 553
"An act extending the time for locating Virginia military land
warrants, and returning surveys thereon to the General Land
Office," 3 Stat. 772, and were therefore null and void, and never
appropriated any land or vested any title in Gregg as against the
plaintiff, or those under whom she claimed.
It was further alleged that the defendant Eleazer P. Kendrick,
being the principal surveyor of the Virginia Military District, and
in possession of the records of that office, did, subsequently to
the entry and survey of Gregg, without the knowledge or consent of
plaintiff or of any person under whom she claimed title, write in
the margin of the record of Archibald Gordon's entry the word
"withdrawn," and in and across the plat and record of the survey
thereof the words "state line," and that Kendrick refused to give
the plaintiff a duplicate of said survey to enable her to obtain a
patent for the land described therein.
Daniel Gregg, Eleazer P. Kendrick, William Swissgood, Emily
Swissgood, Francis Higgins, John W. Higgins, Angeline Higgins,
Matilda Higgins, James Eaton, W. G. Smithson, and Andrew Murdock
were made defendants to the bill of complaint, the bill alleging
that the defendants, except Gregg and Kendrick, wrongly kept the
plaintiff out of possession of the premises sued for, claiming
title under Gregg. The prayer of the bill was that the validity of
the entry and survey of Gordon might be affirmed and established,
and the entry, survey, and patent of Gregg declared void; that the
words "withdrawn" and "state line" might be adjudged to have been
written upon the record of the Gordon entry and survey without
authority; that the plaintiff might be put in possession of the
premises sued for and have an account of rents and profits, and for
general relief. Daniel Gregg, Francis Higgins, John W. Higgins,
Angeline Higgins, and Matilda Higgins, by plea, and the other
defendants, except Kendrick, by answer, denied the title of the
plaintiff and set up the limitation of 21 years prescribed by the
statute of Ohio in bar of the relief prayed by the bill. Kendrick
made no defense. Upon final hearing upon the pleadings and
evidence, the circuit court dismissed the bill, and the plaintiff
appealed.
Page 113 U. S. 554
We think that the averments of the bill do not entitle the
plaintiff to relief. Her case, as alleged, is that she has an
equitable estate in fee in the premises in dispute, and that the
defendants, except Gregg and Kendrick, are in possession without
title -- in other words, are naked trespassers. The theory of her
bill seems to be that because she has an equitable title only, and
for that reason could not recover in an action at law, a court of
equity has jurisdiction of her case. But this is plainly an error.
MR. JUSTICE BRADLEY, in
Young v. Porter, 3 Woods 342. To
give a court of equity jurisdiction, the nature of the relief asked
must be equitable, even when the suit is based on an equitable
title. The plaintiff does not allege that the defendants, who are
in possession of the premises, have the legal title, or that they
obtained possession under any person who had it. Nor does she state
any facts which connect them with her equity. They being mere naked
trespassers in possession, she prays that they may be turned out
of, and she, who has only an equitable title, may be put in,
possession. The relief prayed for is such as a court of law is
competent to grant if the plaintiff's title would justify it. But
the plaintiff does not seek by her bill to better her title. If all
the relief asked for were granted, she would still have an
equitable title only. The case is therefore an ejectment bill
brought on an equitable title. In these respects it is similar to
the bill in the case of
Galt v.
Golloway, 4 Pet. 332. That was a bill in equity
brought by the heirs of James Galt for general and special relief
against Galloway, Baker, Patterson, and others, setting up title to
1,000 acres of land in the Virginia Military District in Ohio based
upon an entry and survey in the name of James Galt. Baker and
Patterson were in possession of 600 acres of the land, claiming
title in the name of Galt. The court found that Baker and Patterson
had no title to the lands held by them, and, upon this state of
case, said:
"These occupants can be considered in no other light by the
court than intruders, and the remedy against them is at law, and
not in chancery. No decree could be made against them unless it be
that they should deliver possession of the premises, and to obtain
this the action of ejectment is the appropriate remedy. Page
29 U. S. 339. "
Page 113 U. S. 555
This decision is in point, and shows the bill to be without
equity as to those of the defendants who are in possession. Their
possession is good against all the world except the true owner. As
the bill asserts no equity against them, they have the right to
stand on their possession until compelled to yield to the true
title, and to demand a trial by jury of the question whether the
plaintiff has the true title. The plaintiff cannot deprive them of
that right by neglecting to acquire the legal title, and upon the
ground of her equitable title ask the aid of a court of equity. She
can turn the defendants out of possession only upon the strength of
the legal title, which she must first acquire. Having done this, a
court of law is the proper forum in which to bring her suit.
Hipp v. Babin,
19 How. 271;
Parker v. Winnipiseogee
Manufacturing Co., 2 Black 545;
Grand
Chute v. Winegar, 15 Wall. 373;
Lewis v.
Cocks, 23 Wall. 466;
Killian v.
Ebbinghaus, 110 U. S. 568.
As to the defendant Kendrick, it is clear that a court of the
United States, sitting in equity, cannot control him in the
discharge of his duties as principal surveyor, or take charge of
the records of his office, or declare their effect to be other than
what appears upon their face.
But we are also of opinion that upon the issues raised by the
pleas and answers, the plaintiff has failed to make good the case
which she has stated in her bill. The pleas and answers denied that
the plaintiff had, as she averred, an equitable estate in fee in
the lands described in the bill.
We think that this defense is established by the facts; that by
reason of the failure of Archibald Gordon or his legal
representatives to make return of the survey to the General Land
Office within the time prescribed by the several acts of Congress
on that subject, the entry and survey became vacated, annulled, and
void, and the lands covered thereby became released from such entry
and survey. So that the plaintiff, at the time of bringing her
suit, was without any interest or estate in the lands described in
her bill.
The lands in controversy are within what is known as the
Virginia Military District, in the State of Ohio. The State of
Virginia claimed title to a large territory northwest as well
as
Page 113 U. S. 556
southeast of the Ohio River by virtue of a grant to the Colony
of Virginia made by King James I of Great Britain on May 23, 1609.
The Virginia Military District is within the limits of this grant.
The State of Virginia, by an act of its legislature passed in
October, 1779, 10 Hening's Stat. 159, provided for bounty in lands
to the officers and soldiers of Virginia in the Revolutionary War,
both in what was designated as the Continental and state
establishment, and prescribed the quantity to which they were
respectively entitled. Other acts of the legislature provided for
the issue of land warrants to those entitled to them, 10 Hening's
Stat. 50, and prescribed how they might be located, 11 Hening's
Stat. 353. On March 1, 1784, the delegates of the State of Virginia
to the Congress of the United States, being authorized thereto by
an act of the legislature passed December 20, 1783, 11 Hening's
Stat. 326, conveyed to the United States all the lands which the
State of Virginia owned or claimed northwest of the Ohio River.
See deed of cession, 11 Hening's Stat. 571.
The cession was made subject to certain reservations and
conditions, among which was the following:
"That in case the quantity of good land on the southeast side of
the Ohio, upon the waters of the Cumberland River, and between the
Green River and Tennessee, which has been reserved by law for the
Virginia troops on the 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 Scioto and Little Miami on the
northwest side of the River Ohio, in such proportions as have been
engaged to them by the laws of Virginia."
This Court, in the case of
Jackson v.
Clark, 1 Pet. 628, speaking by Chief Justice
Marshall, construed this reservation to be
"not a reservation of the whole tract of country between the
Scioto and Little Miami Rivers; it is a reservation of only so much
of it as may be necessary to make up the deficiency of good lands
in the country set apart for the officers and soldiers of the
Virginia line in the Continental establishment southeast of the
Ohio,"
and declared that the residue of the lands was
Page 113 U. S. 557
ceded as a common property for the use and benefit of the
members of the Confederation, and this trust was to be executed by
a faithful and
bona fide disposition of the land for this
purpose.
As an inference from these views, the Court further held that it
was within the power of Congress to prescribe the time within which
the lands to be appropriated by those holding the bounty warrants
should be separated from the general mass, so as to enable the
government to apply the residue, which it was then supposed would
be considerable, to the other purposes of the trust, and if the
time within which the warrants might be located was extended by
Congress, it had the right to annex conditions to the
extension.
Congress, in the exercise of these powers which, in the case
just cited, it was subsequently decided it possessed, on March 23,
1804, passed an act entitled
"An act to ascertain the boundary of the lands reserved by the
State of Virginia northwest of the River Ohio for the satisfaction
of her officers and soldiers on Continental establishment, and to
limit the period for locating the said lands."
2 Stat. 274. Section 1 of this act defined the boundary of the
Virginia Military District in Ohio. Section 2 provided:
"That the officers and soldiers, or their legal representatives,
who are entitled to bounty lands within the above-mentioned
reserved territory shall complete their locations within three
years after the passing of this act, and every such officer and
soldier, or his legal representatives, whose bounty land has or
shall have been located within that part of the said territory to
which the Indian title has been extinguished shall make return of
his or their surveys to the Secretary of the Department of War
within five years after the passing of this act, and shall also
exhibit and file with the said Secretary, and within the same time,
the original warrant or warrants under which he claims, or a
certified copy thereof, under the seal of the office where the said
warrants are legally kept, which warrant, or certified copy
thereof, shall be sufficient evidence that the grantee therein
named, or the person under whom such grantee claims, was originally
entitled to such bounty land, and every person
Page 113 U. S. 558
entitled to said lands, and thus applying, shall thereupon be
entitled to receive a patent in the manner prescribed by law."
The third and last section provided:
"That such part of the above-mentioned reserved territory as
shall not have been located, and those tracts of land within that
part of said territory to which the Indian title has been
extinguished, the surveys whereof shall not have been returned to
the Secretary of War within the time and times prescribed by this
act, shall thenceforth be released from any claim or claims for
such bounty lands."
The plain meaning of the act is that a failure within five years
after its passage to make return to the secretary of was of the
survey of any tract of land located within said territory, made
previous to the expiration of said five years, should discharge the
land from any claim founded on such location and survey, and
extinguish all right, title, and estate previously acquired
thereby, and that all lands within said district not located within
the same period, should be released and discharged from the right
of any person to locate a military warrant thereon. The survey of
the entry of Archibald Gordon has, to this day, never been returned
to the Secretary of War, or, as provided by subsequent acts, to the
General Land Office of the United States. His right to the lands
covered by his entry and survey was therefor cut off by the Act of
March 23, 1804, unless it has been saved by subsequent legislation
of Congress. Counsel for plaintiff, not denying that such was the
effect of the Act of March 23, 1804, insists that the period
limited for returning the survey has been, from time to time, so
prolonged that the entry and survey of Gordon are now valid and
subsisting, and vest in the plaintiff, as the sole heir of Gordon,
an equitable estate in the lands covered by the survey.
This legislation will not be noticed. The act which first
followed the law of 1804 was that approved March 2, 1807, 2 Stat.
424. It allowed the officers and soldiers who were entitled to
bounty lands in the Virginia Military District a further time of
three years from March 23, 1807, to complete their locations, and
five years from the same date to return
Page 113 U. S. 559
their surveys and warrants to the office of the Secretary of
War. The act also contained the following proviso:
"That no location, as aforesaid, within the above-mentioned
tract shall, after the passage of this act, be made on tracts of
land for which patents had previously been issued or which had been
previously surveyed, and any patent which may nevertheless be
obtained for land located contrary to the provisions of this
section shall be considered as null and void."
The period of limitation prescribed by the Act of March 23,
1804, for making locations and returning surveys was subsequently,
from time to time, extended by successive acts of Congress. Act of
November 3, 1814, 3 Stat. 143; Act of February 22, 1815, 3 Stat.
212; Act of April 11, 1818, 3 Stat. 423; Act of February 9, 1821, 3
Stat. 612; Act of March 1, 1823, 3 Stat. 772; Act of May 20, 1826,
4 Stat. 189. These acts, except that of February 22, 1815, 3 Stat.
212, all contained and repeated the proviso above recited of the
Act of March 2, 1807.
Congress having established by the Act of April 25, 1812, 2
Stat. 716, a General Land Office, the Act of November 3, 1814,
provided for the return of the surveys and warrants to that office
instead of to the Secretary of War, and in this respect was
followed by the subsequent statutes, except the Act of February 22,
1815, which contained no direction in respect to the return of
surveys and warrants. The Act of May 20, 1826, extended the time
for making locations to June 1, 1829, for making surveys to June 1,
1832, and for returning surveys to June 1, 1833. After the
expiration of the term limited by this act, an interval of five
years occurred during which no authority existed for making
locations, surveys, or returns of surveys.
The Act of July 7, 1838, 5 Stat. 262, extended the time for
making locations and surveys, and the return of surveys to the
General Land Office, to August 10, 1840, and provided as
follows:
"That all entries and surveys which may have heretofore been
made within the said reservation in satisfaction of any such
warrants on lands not previously entered or surveyed, or on lands
not prohibited from entry and survey, shall be held
Page 113 U. S. 560
to be good and valid;, any omission heretofore to extend the
time for making of such entries and surveys to the contrary
notwithstanding."
It also contained the proviso of the Act of March 2, 1807, above
recited.
By an Act approved August 19, 1841, 5 Stat. 449, the Act of July
7, 1838, was "revived and continued in force" until January 1,
1844, and by an Act approved July 29, 1846, 9 Stat. 41, the Act of
August 19, 1841, was "revived and continued in force" until the
first day of January, 1848. On July 5, 1848, 9 Stat. 244, a like
act was passed by which the Act of August 19, 1841, was "revived
and continued in force until January 1, 1850." And by an act passed
February 20, 1850, 9 Stat. 421, the same Act of July 5, 1848, was
revived and continued in force until January 1, 1852.
The effect of the series of acts, beginning with the Act
approved August 19, 1841, and ending with the Act of February 20,
1850, was to continue in force the Act of July 7, 1838, till
January 1, 1852. The whole series, beginning with the Act of March
23, 1804, and ending with the Act of July 7, 1838, as revived and
continued in force by the later acts just referred to, relates to
the same subject and is to be construed together.
United
States v. Freeman, 3 How. 556;
Rex v.
Loxdale, 1 Burr. 447. It appears even from a cursory reading
that section 3 of the Act of March 23, 1804, was not repealed or
modified either directly or indirectly by any of the subsequent
acts above mentioned. There was no direct repeal of the section.
Neither was there any repeal by implication.
McCool v.
Smith, 1 Black 459;
United
States v. Tynen, 11 Wall. 88;
Henderson's
Tobacco, 11 Wall. 652;
Murdock v.
Memphis, 20 Wall. 590;
Red Rock v. Henry,
106 U. S. 596. It
was allowed to remain unaltered on the statute book, the effect of
the subsequent legislation being only to suspend its operation
until the first day of January, 1852. The interpretation must
therefore be the same as if the third section of the Act of March
23, 1804, had been repeated in every subsequent statute of the
series. As neither Archibald Gordon nor any of his heirs or
representatives ever made a return of the survey of the land in
dispute either to the Secretary of War or the Commissioner of the
General
Page 113 U. S. 561
Land Office either before or after the first day of January,
1852, the third section of the Act of March 23, 1804, cuts up by
the roots all the right and title derived from the location and
survey of Archibald Gordon.
Under the acts of Congress, Gordon, by his entry and survey,
acquired title depending on his performance of certain prescribed
conditions. His failure to perform the conditions stripped him of
all interest or estate in the lands covered by his entry and
survey. That such is the effect of the third section of the Act of
March 23, 1804, is made manifest by the proviso above quoted of the
Act of July 7, 1838, which declared all entries and surveys
theretofore made to be good and valid notwithstanding any omission
by Congress to extend the time for making such entries and surveys.
This is equivalent to a declaration by Congress that section 3 of
the act of 1804 was still in force, and legislation was necessary
to relieve from its operation entries and surveys not made within
the time limited by that or the subsequent enactments.
Since the Act of February 20, 1850, Congress has passed two
acts, on both of which the plaintiff relies as making good his
title. The first of these is the Act of March 3, 1855, 10 Stat.
701, entitled
"An act allowing the further time of two years to those holding
land by entries in the Virginia Military District in Ohio which
were made prior to the first of January, 1852, to have the same
surveyed and patented."
This act provided
"That the officers and soldiers of the Virginia line of
Continental establishment, their heirs or assigns, entitled to
bounty lands which have, prior to the first day of January, 1852,
been entered within the tract reserved by Virginia between the
Little Miami and Scioto Rivers for satisfying the legal bounties to
her officers and soldiers upon Continental establishment, should be
allowed the further time of two years from and after the passage of
this act to make and return their surveys and warrants, or
certified copies of warrants, to the General Land Office."
This act is, by its terms, confined to lands entered and not
surveyed prior to January 1, 1852. The policy of the act is
Page 113 U. S. 562
clear. The acts passed prior to the Act of July 7, 1838, fixed
one period for locating entries and a longer time for making and
returning surveys, plainly because the surveys could not be made
until the entries were made. But the Act of July 7, 1838, as
revived and continued in force by subsequent statutes, fixed the
first day of January, 1852, as the limit allowed both for making
entries and making and returning surveys. It therefore doubtless
happened that laggard warrant holders procrastinated the making of
their entries until it was too late to make and return their
surveys before the first of January, 1852. Therefore the Act of
March 3, 1855, was passed, allowing the holders of warrants who had
made their entries before January 1, 1852, two years further time
after the passage of the act to make and return their surveys.
Those who, before January 1, 1852, had made both their entries and
surveys were not within the words or spirit of the act.
The next act on which the plaintiff relies is the Act of May 27,
1880, 21 Stat. 142. This act is entitled
"An act to construe and define 'An act to cede to the State of
Ohio the unsold lands in the Virginia Military District in said
state,' approved February 18, 1871, and for other purposes."
The act which was to be construed and defined provided "that
lands remaining unsurveyed and unsold in the Virginia Military
District, in the State of Ohio, be, and the same are hereby, ceded
to the State of Ohio," and saved to any
bona fide settler
not exceeding one hundred and sixty acres by him occupied, by his
preempting the same in such manner as the State of Ohio might
direct. 16 Stat. 416.
The plaintiff relies on the first three sections of the Act of
May 27, 1880. The first section declares that the true intent and
meaning of the Act of February 18, 1871, just mentioned, was to
cede to the State of Ohio only such lands as were unappropriated
and not included in any entry or survey within said district
founded on military warrants upon Continental establishment. The
second section is as follows:
"That all legal surveys returned to the land office on or before
March 3, 1857, on entries made on or before January
Page 113 U. S. 563
1, 1852, and founded on unsatisfied Virginia military
continental warrants, are hereby declared valid."
The third section provided that the officers and soldiers of the
Virginia line on Continental establishment, their heirs or assigns,
"entitled to bounty lands which have, on or before January 1, 1852,
been entered" in the Virginia Military District in Ohio should be
allowed three years after the passage of the act to make and return
their surveys for record to the office of the principal surveyor of
said district, and might file their plats, certificates, and
warrants in the General Land Office and receive patents for the
same.
The provisions of the third section are based on the same
policy, and are similar to those of the Act of March 3, 1855,
ubi supra, and must receive the same construction --
namely that three years' further time was allowed for the return of
the surveys of the lands which had been entered but not surveyed
before January 1, 1852. The section does not, therefore, help the
plaintiff's title. But the plaintiff relies confidently on the
second section, and her contention is that the "land office"
referred to in this section is the same as the "office of the
principal surveyor of said," the Virginia military, "district"
mentioned in the third section of the act, and that, as on November
25, 1824, Archibald Gordon had recorded his survey in the latter
office, kept at Chillicothe, Ohio, the section above quoted makes
the survey valid.
In construing the second section of the act of 1880, the rule
already referred to must be applied -- namely that all acts in
relation to the same subject are to be construed together as if one
act. The act of 1880 is part of the system of legislation relating
to the Virginia Military District in the State of Ohio, beginning
with the Act of March 23, 1804, and continued in the fourteen other
acts heretofore referred to. The acts of March 23, 1804, and of
March 2, 1807, passed before the establishment of the General Land
Office, required surveys to be returned to the Secretary of War.
All the subsequent acts
Page 113 U. S. 564
except the Act of February 22, 1815, which omitted any direction
for the return of surveys, fourteen in number, either directly or
by reference to other acts, required surveys to be returned to the
General Land Office. When, therefore, the second section of the Act
of May 27, 1880, provides that all legal surveys returned to the
"land office" before March 3, 1857, shall be valid, it is not open
to question that the land office referred to is the General Land
Office. In all the legislation on the subject, found in thirteen
acts of Congress extending over a period of sixty-eight years, no
other land office had been mentioned. The theory that the words
"land office" in the Act of May 27, 1880 meant the office of the
principal surveyor of the District of Chillicothe, which, in all
the previous legislation, had never been named or alluded to, is
without any support in any rule of construction, and is
inconsistent with the system for the disposition of the lands
adopted and maintained by Congress for more than three-quarters of
a century. That system, as we have seen, required the surveys and
warrants to be returned to the City of Washington, at first to the
Secretary of War and afterwards to the General Land Office. It
required that patents should be issued by the President upon
surveys so returned, and no patent could issue on any survey not so
returned. It cannot be conceived that Congress, by the omission of
the word "general" before the words "land office," intended to
reverse this policy which it had persistingly adhered to through
fifteen different statutes and for nearly three generations, and
thus to unsettle the titles to land in a large and densely peopled
territory.
Nor can we impute to Congress the incongruity of using the words
"land office" and the words "the office of the principal surveyor
of said district" in contiguous sections of the same act to mean
the same thing. But all doubt, if any existed, of the true meaning
of the words "land office" in the section under consideration is
removed by the fact that the section is plainly in substance and
effect a reenactment of the Act of March 3, 1855, which provided in
terms for the return of surveys to the General Land Office.
The plaintiff further insists that the first and second
sections
Page 113 U. S. 565
of the Act of May 27, 1880, repeal by implication the third
section of the Act of March 23, 1804. There is no ground for such a
contention. It is most unreasonable to suppose that Congress
intended, by doubtful inference, to repeal the salutary provision
of § 4 of the act of 1804, which, in numerous enactments, it had
cautiously preserved for a period of seventy-six years, and on
which the titles to a vast domain rested.
The object of the first and second sections of the Act of May
27, 1880, was not to confer new rights, but to preserve rights
already vested from impairment by any construction which might be
placed on the Act of February 18, 1871, by which the unsurveyed and
unsold lands in the Virginia Military District were ceded to the
State of Ohio. But it is enough to say that there is no
inconsistency between the two enactments, one of which is said to
repeal the other. There can therefore be no repeal by
implication.
It follows that the plaintiff can derive no aid from any act of
Congress passed since the first day of January, 1852. On that day,
all interest and estate of the heirs of Archibald Gordon in the
lands covered by his entry recorded on January 1, 1823, and his
survey recorded on November 6, 1824, ceased and determined. The
plaintiff therefore has failed to make good her averment that she
has an equitable estate in fee simple to the premises in
controversy. She has therefore shown no right to the relief prayed
by her bill.
It is immaterial whether the patent of Gregg under which the
defendants claim was valid or void. The plaintiff, having no title,
can have no relief against them. The defendants, being in
possession, are entitled to retain possession until ousted by one
who has the title. The decree of the circuit court, by which the
bill was dismissed, was therefore right, and is
Affirmed.