Stephens v. McCargo,
22 U.S. 502 (1822)

Annotate this Case

U.S. Supreme Court

Stephens v. McCargo, 22 U.S. 9 Wheat. 502 502 (1822)

Stephens v. McCargo

22 U.S. (9 Wheat.) 502




The Land Law of Virginia of 1779 makes a preemption warrant superior to a Treasury warrant whenever they interfere with each other, unless the holder of the preemption warrant has forfeited that superiority by failing to enter his warrant with the surveyor of the county within twelve months after the end of the session at which the land law was enacted, and on that period's having expired, and being prolonged by successive acts, during which time there was one interval between the expiration of the law and the act of revival, the original right of the holder of the preemption warrant was preserved notwithstanding that interval, the entry of the holder of the Treasury warrant not having been made during the same interval.

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

This is an appeal from a decree pronounced by the Circuit Court of the United States for the District of Kentucky directing the appellant to convey to the respondents certain lands mentioned in their bill and claimed by them under two distinct titles.

The board of commissioners granted a certificate of preemption on 26 April, 1780, to Benjamin Harrison, for 1,000 acres of land, which certificate contained within itself a good location.

The entry with the surveyor was made on 5 June, 1786, the land was surveyed on

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12 December, 1787, and the grant was issued on 10 February, 1789.

The complainants deduce title from Harrison to parts of this land.

The appellant claims under a grant issued on 1 March, 1784, founded on a survey of 14 February, 1783, and on an entry made 30 May, 1780, on a Treasury warrant.

In an ejectment brought against all the persons occupying the land covered by his patent, judgment was rendered in his favor, whereupon several of the defendants filed their bill on the equity side of the court setting forth their better title under the preemption warrant of Harrison and praying that Stephens might be enjoined from proceeding further at law and might be decreed to convey to them, respectively, the lands they held under Harrison.

An amended bill was afterwards filed with the leave of the court in which two of the defendants in the suit at law, who were not parties to the original bill, united with the original complainants. This amended bill sets forth that on 10 May, 1780, Richard Barbor made a valid entry of 1,000 acres of land on a Treasury warrant, which was surveyed in January, 1786, and patented in June, 1787. One of the original complainants and the two complainants introduced in the amended bill show a regular title under this patent.

The answer of the defendant put the claims in issue, and the court sustained the titles both of

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Harrison and Barbor and directed the defendant, Stephens, to convey to the plaintiffs so much of the land recovered by him in the suit at law, as was held by those titles.

From this decree Stephens has appealed, and his counsel alleges that it is erroneous because

1. The titles of Harrison and Barbor are united in the same bill.

2. Stephens has the better title in equity, as well as law.

1. As to the form of the proceedings:

It may be admitted that two persons cannot unite two distinct titles in an original bill, although against the same person. Such a proceeding, if allowed, might be extended indefinitely and might give such a complexity to chancery proceedings as would render them almost interminable. But we know of no principle which shall prevent a person claiming the same property by different titles from asserting all his titles in the same bill. If this principle be correct, then, as three of the complainants held under both titles, there would be a strict propriety in submitting both titles to the court.

This would not be questioned so far as the same land was claimed by both titles. So far as the surveys of Barbor and of Harrison interfered with each other and the same person held under each, he would be unquestionably correct in comprehending both claims in the same bill. If this were the fact in only a small portion of the land, still the two titles may be brought before the court, and if this may be done, it would follow that all who

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claim under either and who are properly in court may assert their claims under both titles.

But a joint judgment has been rendered at law against all these complainants, and they have an unquestionable right to unite in their application to a court of equity for an injunction to this judgment. The court may consequently hear the whole cause for the purpose of determining whether this injunction shall be perpetuated, and it is a rule that a court of equity which has jurisdiction of a question may proceed to its final and complete decision. Directing a conveyance is only making that relief which would be afforded by a perpetual injunction more complete.

We think that all those against whom the judgment at law was rendered might properly unite in this bill and assert their titles under Barbor and Harrison, or either of them.

We proceed, then, to the inquiry whether the appellant or the respondent has the better title in equity.

This inquiry is confined to that part of the case which respects the title under Harrison. Barbor's entry, being prior to that of Stephens, gives a better equitable title, according to the settled course of decisions in Kentucky, if the entry be a valid one, as this is admitted to be.

The land law of Virginia, under which all parties claim, makes a preemption warrant superior to a Treasury warrant whenever they interfere with each other unless the holder of the preemption warrant shall have forfeited that superiority by failing to comply with some of the requisites of

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the law. One of these is that the warrant shall be entered with the surveyor of the county within twelve months after the end of the session of assembly in which the law was enacted. That session of assembly ended on 26 June, 1779, and consequently the time given by this act for making entries expired on 26 June, 1780.

But the legislature was induced by weighty considerations to prolong this time, and various acts of assembly were passed which did prolong it until after this entry was made. It has been supposed, however, that there was at least one interval between the expiration of the law and the act of revival, and this circumstance gives birth to the present controversy.

The right of the legislature to give further time for entering preemption warrants has never been drawn into doubt, but the influence of such laws on the rights or claims of others has been questioned. The appellant contends that by making his entry on 30 May, 1780, he acquired an inchoate right to the land which could be defeated only by such an observance of the law on the part of the person possessing the preemption warrant as would preserve it from forfeiture, and that the land vested in him by virtue of his entry the instant the forfeiture took place.

We will inquire how far this principle is countenanced by the words of the act.

When the Virginia Assembly was about to open a land office for the purpose of selling the immense tract of vacant territory within its limits, certain preexisting rights were recognized and

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affirmed, and others which had no previous legal existence were created and conferred on meritorious individuals as a reward for the fatigue and hazard encountered in exploring the country. Of the latter description was the preemptive right given to him who had marked and improved a tract of land. When the land office was opened, it was opened for the sale of waste and unappropriated land, not for the sale of land already appropriated or of land a right to appropriate which was vested by law in another; consequently no entry, strictly speaking, was authorized either by the act or the words of the warrant on lands which were not at the time waste and unappropriated.

The words of the law opening the land office are

"Be it enacted that any person may acquire title to so much waste and unappropriated land as he or she shall desire to purchase on paying the consideration of forty pounds for every hundred acres,"

&c. The land, then, which was brought into market and offered for sale, on which the purchaser might place his warrant, and to which he might acquire a title, was "waste and unappropriated land" -- land to which another had by law a preemptive right -- could not be of this description. So long as that preemptive right continued, it was withdrawn from the general mass of property brought into market and offered for sale; it was land to which the power of appropriation conferred by the warrant did not extend.

The idea and intention of the legislature on this subject is more clearly expressed in the clause

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which provides for the disposition of the property in the event of a failure to make the entry within the time limited by law. It is in these words:

"And where any such warrant shall not be entered and located with the county surveyor within the before mentioned space of twelve months, the right of preemption shall be forfeited and the lands therein mentioned may be entered for by any other person holding another land warrant, but such preemption warrant may nevertheless be located on any other waste and unappropriated lands, or upon the same lands, where they have not in the meantime been entered for by some other."

It would be at least useless, to grant an express power to the holder of a common Treasury warrant to locate the land after the forfeiture of the preemption right if that power had been previously granted by the general clause which enables him to locate waste and unappropriated land, and the limitation on the right of location, which makes it to commence after the forfeiture of the preemptive right, is opposed to the idea of its preexistence.

The subsequent words authorize the holder of the preemption warrant to locate it "on any other waste and unappropriated lands, or upon the same lands, where they have not in the meantime been entered for by some other."

There can be no doubt that the words "in the meantime" do of themselves import that interval which occurred between the forfeiture of the preemption right and the reentry of the warrant.

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Only an entry made in this interval, obstructs the reentry which may be made by the holder of the preemption warrant. If the sense of these words could be rendered still plainer, it would be done by considering them in connection with the other parts of the sentence. The entry which is preserved and protected against the reentry of the preemption warrant is that which had just before been authorized -- that is, an entry made after the right of preemption had been forfeited. If the preemption warrant of Harrison had been reentered and had come in conflict with the entry of Stephens made prior to its forfeiture, it must have prevailed or the words of the law have been entirely disregarded. The act of assembly prolonging the time for making his entry is certainly equivalent, while in force, to a reentry made by himself without such act. It was in force when his entry was made on 5 June, 1786.

Upon the words of the law, then, there can be no doubt respecting the superiority of the title under Harrison so far as it depends on the entries. The difficulty is produced by the circumstance that a patent was issued to Stephens before the warrant of Harrison was entered with the surveyor.

The entry of Stephens was made on 30 May, 1780, before the preemptive right of Harrison had expired. The survey was made on 14 February, 1783, while the act of May session, 1782, which prolonged the time for making these entries until June, 1783, was in force. The patent issued on 1 March,

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1784, at a time when the act, passed in 1783, prolonging the time for making entries until nine months after the end of that session of assembly, was in force.

It is not, we think, to be doubted that the several acts of assembly prolonging the time for entering preemption warrants have the same effect, except as to entries made "in the meantime" -- that is, in the interval between a forfeiture and a renewal of the right -- that would be allowed to the original act had it continued in force until after Stephens obtained his patent.

The act of 1783 expired in June, 1784, and was revived and continued by a subsequent law until November, 1786. It was during the existence of this law that Harrison's entry was made.

The preexisting law was permitted to expire before the act for its revival and continuance was passed, and the appellant contends that this interval cured all the defects in his title and placed it beyond the reach of any legislative enactment. In support of this position, he relies on the principle settled in Kentucky that a patent is an appropriation of land and that no subsequent entry can draw its validity into question. He relies also on the case of Hoofnagle v. Anderson, 7 Wheat. 212.

The Court has felt great difficulty on this point. The proposition that a patent is an appropriation of the land it covers, although the proceedings previous to its emanation may be irregular and defective, is unquestionably true, but this principle has never, so far as is known to the Court,

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been applied to a case in which the opposing title to the particular land in controversy had its commencement before the patent issued. In the case of Hoofnagle v. Anderson, the plaintiffs sought to set aside a patent by an entry made after the grant had issued on a warrant which gave no specific claim to the particular land in controversy, but a general right to locate any unappropriated land in the military district. In that case too, the warrant, under which Anderson's patent had been obtained, was issued to an officer really in the state line, but said by mistake to belong to the continental line. It was originally equally entitled with that under which Hoofnagle and others claimed to be placed in the military district northwest of the Ohio, and had lost that equal right by an act of the legislature not entirely compatible with that strict regard to vested interests, which all governments deem a sacred obligation. The mistake in the warrant was a plain official error not mingled with the slightest suspicion of fraud, and its holder, who was a purchaser without notice, had lost, in consequence of that mistake, the chance of acquiring any other land. The mistake, too, had done no more than to restore him a right which had been taken from him, perhaps inadvertently, certainly with a belief that no injury was done him.

The situation of both parties was different in that case from what it is in this. The party who obtained the patent had an original right equal to that of the person who demanded the land. In

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this case, the appellant has no such original right. The warrant of Hoofnagle and others gave them no particular claim to the land in controversy, but in this case, Harrison's warrant gave him and those claiming under him originally an exclusive right to the particular land in controversy. That exclusive right, it is true, was forfeitable and was at one time forfeited. But the legislature, which created the right and limited its duration might with the strictest propriety prolong its existence, and might also prescribe the manner in which the property should be afterwards acquired by any other person. The legislature has prescribed that manner. It is by an entry made when the preemptive right was forfeited. With the single exception of the claim given by such an entry, the legislature might certainly remit the forfeiture and reinstate the preemptioner in his original rights.

A title acquired according to law might very properly be considered as obstructing the operation of this reinstating act and be sustained against him, but a title which in no stage of its progress was authorized by law appears under circumstances much less favorable. That patents obtained on improper entries have prevailed against persons whose titles commenced after such patents have issued is no authority for the opinion that such patents ought to prevail against a title which traces its commencement to a time anterior to the emanation of the patent. The only difficulty in the case consists in connecting the right of the preemptioner at the time his

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entry was made with the original right given by the act which opened the land office. That act gave the person who had marked and improved a piece of ground the preemption to 1,000 acres of land, to include his improvement, provided the warrant was entered within twelve months. That any act prolonging the time for making this entry would continue the original right is not to be questioned. It is plainly the intention of the legislature, and nothing can prevent that intention from being effectual but the intervention of some other title which the legislature cannot rightfully remove. The original act shows how that other intervening title may be obtained. It is by an entry made while the preemptive right had no existence.

Considering this question as being res integra, entirely unaffected by the decisions made in the courts of Kentucky, the opinion of this Court would be that a title acquired while the preemptive right of Harrison was in force, could not be sustained against his entry, if made according to the act by which his right was continued. We do not think that this opinion is opposed to the decisions of Kentucky, because no decision has ever been made in that country against a preemption right, properly entered, under the acts of assembly for continuing the original law in favor of a Treasury warrant, located while those laws were in force. Titles under Treasury warrants, entered during the existence of a prior right, have been sustained against other subsequent entries

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made under similar circumstances, but never, so far as we are informed, against that prior right if completed according to acts of the legislature prolonging the time for its completion.

In the case of Alsted v. Miller, Hurdin 193, the Court of Appeals of Kentucky decided in favor of a title founded on a preemption warrant entered in December, 1782, against a title founded on a Treasury warrant, entered on 9 June, 1780. That case is admitted to differ essentially from this because, when Miller's preemption warrant was entered, no interval had occurred between the different acts during which the land might have been legally entered, and because too Miller's appears to have been the oldest patent. But in that case the court decided that the time for entering the preemption warrant might be prolonged notwithstanding the previous entry of a Treasury warrant on the same land. The court observed that the holders of Treasury warrants purchased subject to the reservations made in favor of preemptioners; that the legislature might have permitted this reserved land to return to the common fund on the failure of the person holding the preemption warrant to comply with the terms of the law, or might dispense with those terms in his favor and prolong the time allowed for making his entry. The principle of this decision is that an entry made during the existence of the preemptive right is not such an inceptive title as could be defeated only by the performance of the condition on which

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the preemption right depended at the time his entry was made. It gave him no rights which were not under the control of the legislature and might not be defeated by an act giving the preemptioner further time to enter his warrant.

So far, then, as the decisions of Kentucky go, they are rather in favor of the opinion that the original right of Harrison was preserved notwithstanding the interval during which it was forfeited, since the entry of the appellant was not made in that interval.

The decree of the circuit court affirmed with costs.

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