The colonial charters, a great portion of the individual grants
by the proprietary and royal governments, and a still greater
portion by the states of the Union after the Revolution, were made
for lands within the Indian hunting grounds. North Carolina and
Virginia, to a great extent, paid their officers and soldiers of
the Revolutionary War by such grants, and extinguished the arrears
due the army by similar means. It was one of the great resources
which sustained the war not only by those states, but by other
states. The ultimate fee, encumbered with the right of Indian
occupancy, was in the Crown previous to the Revolution, and in the
states of the Union afterwards, and subject to grant. This right of
occupancy was protected by the political power and respected by the
courts until extinguished, when the patentee took the unencumbered
fee. So this Court and the state courts have uniformly held.
The State of Kentucky has an undoubted power to regulate and
protect individual rights to her soil and to declare what shall
form a cloud on titles, and having so declared, the courts of the
United States, by removing such cloud, are only applying an old
practice to a new equity created by the legislature, having its
origin in the peculiar condition of the country. The unappropriated
lands of the State of Kentucky have been opened to entry and grant
at a very cheap rate, which policy has let in abuses. The clouds
upon old titles by the issuance of new patents for the same lands
were the consequence, and the citizens of other states are entitled
to come into the courts of the United States, to have their rights
secured to them by the statute of Kentucky of 1796.
The State of Kentucky may prescribe any policy for the
protection of the agriculture of the country that she may deem wise
and proper. She has, in effect, declared that junior patents issued
for previously granted lands shall be delivered up and cancelled,
with the addition that a release of title shall be executed, and it
is the duty of the courts to execute the policy.
Where the legislature declares certain instruments illegal and
void, there is inherent in the courts of equity a jurisdiction to
order them to be delivered up, and thereby give effect to the
policy of the legislature.
The state legislatures have certainly no authority to prescribe
the forms or modes of proceeding in the courts of the United
States, but having created a right and at the same time prescribed
the remedy to enforce it, if the remedy prescribed is substantially
consistent with the ordinary modes of proceeding on the chancery
side of the federal courts, no reason exists why it should not be
pursued in the same form as in the state courts. On the contrary,
propriety and convenience suggest that the practice should not
materially differ when titles to land are the subjects of
investigation.
In the State of Tennessee, the legislature has provided that the
courts of equity may divest a title, and vest it in another party
to a suit, and that the decree shall operate as a legal conveyance.
In Kentucky the legislature has declared that courts may appoint a
commissioner to convey, as attorney in fact of litigant parties,
and such shall pass the title, in both instances binding infants
and
femes coverts if necessary. The federal courts of the
United States, in the instances referred to, have adopted the same
practice for many years, without a doubt having been entertained of
its propriety. It may be said with truth that it is a mode of
conveyance and of passing title which the states have the exclusive
right to regulate.
The undoubted truth is that when investigating and decreeing on
titles in this country, the court must deal with them in practice
as it finds them, and accommodate our modes of proceeding in a
considerable degree to the nature of the case, and to the character
of the equities involved in the controversy, so as to give effect
to state legislation and state policy, not departing, however, from
what legitimately belongs to the practice of a court of
chancery.
Page 38 U. S. 196
William Clark, the father of the appellants, filed a bill in the
Circuit Court of the District of Kentucky, praying the court to
compel the defendant to release his pretended title to certain
lands in the State of Kentucky, claimed by under certain patents
obtained from the State of Kentucky, more than thirty years after
the registration of the survey of the ancestor of the complainants,
George Rogers Clark. The possession of the land had continued in
the ancestor of the complainant, and in himself, up to the time of
the filing of the bill. The conveyance asked by the bill was sought
to be in conformity with the provisions of the act of the assembly
of Kentucky giving jurisdiction to courts of equity in such
cases.
The circuit court was unanimously of opinion that the
complainants had established the legal title to the land mentioned
in the bill, under a valid grant from the Commonwealth of Kentucky,
to George Rogers Clark, his ancestor, and that he was in possession
of the same at the commencement of this suit, and that the
defendant had not shown that he had any right or title, either in
law or equity, to the land or any part of it, but the judges of the
circuit court being divided in opinion on the question of the
jurisdiction of the circuit court to compel the defendant to
execute the conveyance prayed for in the bill, it was not the
opinion of the court (the defendant having set up and exhibited
junior patents from the Commonwealth of Kentucky for the land, to
himself) that on any other ground apparent in the cause, the
circuit court had jurisdiction, on the general principles which
determine the equity jurisdiction of the courts of the United
States, to grant to the complainants any other relief. The bill of
the complainants was dismissed; and they prosecuted this
appeal.
Page 38 U. S. 200
MR. JUSTICE CATRON delivered the opinion of the Court.
By patent of 15 September, 1795, there was granted to George
Rogers Clark, by the Commonwealth of Kentucky, 36,962 acres of
land, beginning on the Ohio River at the mouth of the Tennessee;
running south 16�, east 1,280 poles, north 74�, west 3,840 poles,
north 16�, east 1,800 poles, to the bank of the Ohio, with its
miles below Fort Massac, thence running up the Ohio, with its
several meanders 4,480 poles to the beginning.
The patent is in conformity to a survey of 7 June, 1784,
returned to the land office of Virginia, founded on an entry, and
an amendment thereof, dated 17 May and 26 of October, 1780, made by
virtue of various Treasury warrants. The entry having been for
71,962 acres, with liberty to return one or more surveys.
The identity of the land, as entered, surveyed, and patented, is
established beyond doubt, as the survey made by order of the court
below, represents it.
William Clark, the complainant, by various mesne conveyances,
became the owner in fee of the same, and by his tenant has
Page 38 U. S. 201
been in possession from 1819 up to the time of filing the bill,
the claim of the Chickasaw Indians, having been extinguished to the
country where the land lies by the treaty of 19 October, 1818, to
which time the right of possession was necessarily suspended.
The first exception taken by the answer is that the patent was
made for lands lying within a country claimed by Indians, and
therefore void.
To which it may be answered that the colonial charters, a great
portion of the individual grants by the proprietary and royal
governments, and a still greater portion by the states of this
Union after the Revolution, were made for lands within the Indian
hunting grounds. North Carolina and Virginia, to a great extent,
paid their officers and soldiers of the Revolutionary War, by such
grants, and extinguished the arrears due the army by similar means.
It was one of the great resources that sustained the war not only
by these states but others. The ultimate fee (encumbered with the
Indian right of occupancy) was in the Crown previous to the
Revolution, and in the states of the Union afterwards, and subject
to grant. This right of occupancy was protected by the political
power, and respected by the courts until extinguished, when the
patentee took the unencumbered fee. So this Court and the state
courts have uniformly and often holden.
10
U. S. 6 Cranch 87;
13
U. S. 9 Cranch 11.
By the act of November, 1781, Virginia opened the whole country
south of the Tennessee River for the satisfaction of military
claims, and excluded the location of Treasury warrants, and the
officers and soldiers, through their superintendents, Thomas
Marshall and others, caveated George Rogers Clark's claim, praying
no grant might issue to him for the 36,932 acres. The caveat was
filed in the Supreme Court of the District of Kentucky, but because
the judges were interested in the event, the suit was transferred,
pursuant to an act of assembly, to the Court of Appeals of
Virginia, where it was pending from 1786 to 1791, when that court,
amongst other things, held
"that the dormant title of the Indian tribes remained to be
extinguished by the government, either by purchase or conquest, and
when that was done, it enured to the benefit of the citizens who
had previously acquired a title from the Crown, and did not
authorize a new grant of the lands, as waste and
unappropriated."
And the state having succeeded to the royal rights, could
appropriate the waste lands within her chartered limits in the same
manner.
2. That by the act of 1779, the lands south of Tennessee River
were subject to be located by Treasury warrants, and that the act
of 1781, for the benefit of the officers and soldiers, could not
have a retrospective operation so as to defeat General Clark's
prior entry, made according to the existing laws.
The opinion having been returned to the Court of Appeal of
Kentucky at the October term thereof, 1793, the caveat was
dismissed,
Page 38 U. S. 202
and in September, 1795, General Clark obtained his patent.
Hughes, Kentucky Reports 39.
The validity of the title of the complainant is therefore not
now open to controversy on these grounds, and such was the opinion
of the circuit court. But that court being divided in opinion on
the question of jurisdiction, no decree could be made in conformity
to the prayer of the bill, and which was dismissed for this
reason.
It seeks to enforce the act of Kentucky of 1796, which provides
that
"Any person having both legal title to and possession of land,
may institute a suit against any other person setting up a claim
thereto, and if the complainant shall be able to establish his
title to such land, the defendant shall be decreed to release his
claim thereto, and pay the complainant his costs, unless the
defendant shall by answer disclaim all title to such lands, and
offer to give such release to the complainant, in which case the
complainant shall pay to the defendant his costs, except for
special reasons appearing, the court should otherwise decree."
The foregoing extract is the twenty-ninth section of an act
professedly regulating proceedings in the court of chancery.
Conflicts of title were unfortunately so numerous that no one
knew from whom to buy or take lands with safety; nor could
improvements be made without great hazard, by those in possession,
who had conflicting claims hanging over them; and which might thus
continue for half a century -- the writ of right being limited to
fifty years in some cases; that is, where it was brought upon the
seizin of an ancestor or predecessor, and to thirty years, if on
the demandant's own seizin. Act of January 1796. During all which
time, the party in possession had no power to litigate, much less
to settle the title at law; for he might be harassed by many
actions of ejectment, and his peace and property destroyed,
although always successful; by no means an uncommon occurrence.
This evil it was the object and policy of the legislature to cure
not so much by prescribing a mode of proceeding as by conferring a
right on him who had the better title, and the possession, to draw
to him the outstanding inferior claims. It is in effect declared
that the junior claimant shall be deemed to hold a trustee for him
in possession, and be compelled to release his inferior title by a
conveyance, so that the junior patent, for instance, could not be
perfected by possession, and the lapse of time into the better
right by force of the acts of limitation, now reduced in Kentucky
in such cases to a seven years' adverse holding. The junior patent,
as between the state and the grantee is a valid title, and if in
this instance, Smith were to hold adverse possession of anyone of
his thirty-two tracts, for seven years, he would have the better
legal title, and if the grants of Smith are released to Clark, a
holding by him in virtue of the release, would have the same
effect.
The legislature having declared that he who has the legal and
equitable title and the possession, may treat the adverse claimant
as a trustee, and coerce a release to himself of the inferior
claim;
Page 38 U. S. 203
of course the statute secures a highly valuable right which it
is the duty of the courts to enforce and which can only be enforced
in a court of equity.
Kentucky has the undoubted power to regulate and protect
individual rights to her soil and to declare what shall form a
cloud on titles, and having so declared, the courts of the United
States, by removing such clouds, are only applying an old practice
to a new equity created by the legislature, having its origin in
the peculiar condition of the country. The unappropriated lands of
that state have been opened to entry and grant at a very cheap
rate, as this record shows, which policy has let in the abuse
sought to be remedied by the bill. That clouds upon old titles by
the issuance of new patents for the same lands would be the
consequence was manifest, and that citizens of other states are
entitled to come into the courts of the United States to have the
rights secured to them by the statute of 1796 enforced we cannot
doubt.
But we apprehend jurisdiction may be assumed by the federal
equally with the state courts upon another ground. Kentucky may
prescribe any policy for the protection of the agriculture of the
country that she may deem wise and proper; she has in effect
declared that junior patents issued for previously granted lands
shall be delivered up and cancelled, with the addition that a
release of title shall be executed, and it is the duty of the
courts to execute the policy.
Where the legislature declares certain instruments illegal and
void, as the British annuity act does or as the gaming acts do,
there is inherent in the courts of equity a jurisdiction to order
them to be delivered up, and thereby give effect to the policy of
the legislature. 10 Ves. 218. 5 Ves. 604. 2 Yerger 524. 1 Maddock's
Ch.Pra. 185, and authorities cited.
The state legislatures certainly have no authority to prescribe
the forms and modes of proceeding in the courts of the United
States, but having created a right and at the same time prescribed
the remedy to enforce it, if the remedy prescribed is substantially
consistent with the ordinary modes of proceeding on the chancery
side of the federal courts, no reason exists why it should not be
pursued in the same form as it is in the state courts; on the
contrary, propriety and convenience suggest that the practice
should not materially differ where titles to lands are the subjects
of investigation. And such is the constant course of the federal
courts. For instance, in Tennessee, the legislature has provided
that the courts of equity may divest a title, and vest it in
another party to the suit, and that the decree shall operate as a
legal conveyance. So in Kentucky, the legislature has declared that
the courts may appoint a commissioner to convey as the attorney in
fact of a litigant party, and that such deed shall pass the title,
in both instances binding infants and
femes covert if
necessary. The federal courts in the states referred to have
adopted the same practice for many years without a doubt's having
been entertained of its propriety. It may be said
Page 38 U. S. 204
with truth that this is a mode of conveyance and of passing
title which the states have the exclusive right to regulate; still
the same statute that conferred the power thus to decree a
conveyance prescribed the mode of proceeding, and had the form of
the remedy been rejected by the courts of the United States, the
right to have such record conveyance would have fallen with it, as
they could not be separated.
The undoubted truth is that when investigating and decreeing on
titles in this country, we must deal with them in practice as we
find them, and accommodate our modes of proceeding in a
considerable degree to the nature of the case and the character of
the equities involved in the controversy, so as to give effect to
state legislation and state policy, not departing however from what
legitimately belongs to the practice of a court of chancery.
The complainant's case being one coming clearly within the rules
alluded to, we order that the decree of the court below be
Reversed and the cause remanded to be proceeded in according
to the rights of the parties.
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
Kentucky and was argued by counsel. On consideration whereof it is
adjudged and decreed by this Court that the decree of the said
circuit court in this cause be and the same is hereby reversed 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 in
conformity to the opinion of this Court.
