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.
