Hollingsworth v. Barbour,
29 U.S. 466 (1830)

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Hollingsworth v. Barbour, 29 U.S. 4 Pet. 466 466 (1830)

Hollingsworth v. Barbour

29 U.S. (4 Pet.) 466


H. entered, with the proper surveyor for the District of Kentucky, 45,000 acres of land in the County of Washington in that state by virtue of Treasury warrants. A survey was made thereon in 1786, and a patent for the land issued

to H. in 1797. The warrants were purchased by the ancestor of the complainant,

by a parol agreement with H. previous to their entry. Before this agreement H., in connection with a person who owned other warrants, had made an agreement with S. to locate their respective warrants, which agreement was ratified by the complainant, who paid a sum of money to S. for fees of patenting, and agreed to make S. a liberal compensation for his services, and S. located and surveyed under the warrants 45,000 acres, returned the surveys to the office, and paid the fees of office. The locating and surveying of the warrants, and all the necessary steps for completing the title, were done by S., who was employed first by H. and afterwards by the complainant, who paid in money for the same. H. being deceased and having made no conveyance of the legal title to the lands, the complainant filed a bill in the County of Washington "against the unknown heirs of H.," and in 1815 a decree was made by that court for a conveyance of the lands by the unknown heirs, or in their default by a commissioner appointed in the decree to make the same. Held that the conveyance was not authorized by the laws of Kentucky in force at the time of the decree.

By the general law of the land, no court is authorized to render a judgment or decree against anyone or his estate until after due notice by service of process to appear and defend.

The acts of the Assembly of Kentucky authorizing proceedings against absent defendants referred to and examined.

The statute under which the proceedings of the complainants in this case were instituted authorized the court to make a decree for a conveyance in a suit for such a conveyance only in the case in which the complainant claims the land as locator or by bond or other instrument in writing.

The claim of "a locator" is peculiar to Kentucky, and has been universally understood by the people of the country to signify that compensation of a portion of the land located, agreed to be given by the owner of the warrant to the locator of it for his services.

The record of proceedings against "unknown heirs" is no evidence that any such heirs existed, and the decree and deed made in pursuance of it cannot avail to pass any title without some evidence that there were some heirs.

Page 29 U. S. 467

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