The proviso in the second section of the Act passed on 1 March,
1823, 3 Stat. 773, entitled, "An act for extending the time for
locating Virginia military land warrants and returning surveys
thereon to the General Land Office," which proviso is as follows,
viz.,
"Provided that no locations, as aforesaid, in virtue of this or
the preceding section of this act shall be made on tracts of lands
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 act
shall be considered null and void"
protected an entry which had been made in the name of a dead man
in 1822. And a subsequent conflicting entry came within the
prohibition of the statute, and was therefore void.
The cases of
Galt v.
Galloway, 4 Pet. 345; McDonald's Heirs v. Smalley,
6 Pet. 261; Jackson v. Clarke, 1 Pet. 628;
Taylor's
Lessee v. Myers, 7 Wheat. 23; and
Galloway
v. Finley, 12 Pet. 264, reviewed.
This case was before this Court at January term, 1842, and was
then remanded to the circuit court upon the ground that a material
error had been committed by the clerk in stating the point intended
to be certified. It now came back with the error corrected.
It was originally a bill filed on the equity side of the circuit
court by Dun against McArthur, in which the same matters of
controversy were involved as in the present case. Dun obtained a
decree against McArthur in 1836.
In 1838, McArthur filed the present bill of review. The
following table presents a view of their conflicting titles to the
land in question:
image:a
Page 48 U. S. 263
All the facts in the case are stated in the certificate of
division in opinion, which was as follows,
viz.:
"This cause having been remanded from the Supreme Court of the
United States to this Court for a further order touching the point
upon which the opinions of the judges of this Court upon the
hearing thereof were opposed, in compliance with said mandate of
said Supreme Court, the said point of disagreement of said judges
is now ordered to be restated more specially and at large. The said
point of disagreement arose out of the following facts, stated and
set forth in the original bill of said Walter Dun and admitted to
be true by the demurrer of said Duncan McArthur thereto, who was
the respondent to said original bill,
viz., that said
McArthur, on 3 January, A.D. 1825, obtained a patent for the tract
of land in controversy, which is situate in the Virginia Military
Reservation in the State of Ohio, on an entry made on a Virginia
military land warrant in the name of Robert Means, assignee, on 23
November, A.D. 1822, followed by a survey of said entry made in the
name of the said Robert Means, assignee, on 18 March, A.D. 1823,
which said Robert Means before said entry, and as early as the year
A.D. 1808, had departed this life. And that on 4 April, 1825,
another patent for the same tract of land was issued to one James
Galloway on an entry thereof made in the name of said Galloway on
10 December, A.D. 1824, on another Virginia military land warrant,
and which was duly surveyed in his (said Galloway's) name on the
15th of the same month of December, A.D. 1824, and which tract of
land was subsequently conveyed by said Galloway to said Walter Dun.
Upon which said state of facts touching the titles of the said
parties to said tract of land this point was raised by the counsel
for the complainant in said bill of review upon the hearing and
argument thereof,
viz., whether the said location and
survey of said tract of land in the name of said Galloway, and the
patent issued to him for the same, are not null and void as being
made and done in contravention of the proviso to the second section
of the Act of Congress of 1 March, A.D. 1823, entitled 'An act
extending the time for locating Virginia military land warrants and
returning surveys thereon to the General Land Office.'"
"And upon the point so as aforesaid raised by the counsel for
the complainants in review, the opinions of the judges of this
court being opposed, the said point of disagreement is, on motion
of said complainants' counsel, stated as above, under the direction
of said judges, and is hereby ordered to be certified to the
Supreme Court of the United States at its next session to be
hereafter holden for its final decision upon said point of
disagreement. "
Page 48 U. S. 264
The proviso referred to was in these words, 3 Stat. 773:
"Provided that no locations as aforesaid, in virtue of this or
the preceding section of this act, shall be made on tracts of lands
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 act
shall be considered null and void. "
Page 48 U. S. 266
MR. JUSTICE DANIEL delivered the opinion of the Court.
This case comes before this Court upon a certificate of division
of opinion between the judges of the Circuit Court of the United
States for the District of Ohio upon a bill of review exhibited in
that court. The character of the cause as made upon the pleadings
and evidence, and the question on which the judges were divided in
opinion are so succinctly and at the same time so clearly disclosed
in the statement of the judges that they will be best presented by
a simple repetition of that statement in these words:
"This cause having been remanded from the Supreme Court of the
United States to this Court for a further order touching the point
upon which the opinions of the judges of this court upon the
hearing thereof were opposed, in compliance with said mandate of
said Supreme Court, the said point of disagreement of said judges
is now ordered to be restated more specially and at large. The said
point of disagreement arose out of the following facts, stated and
set forth in the original bill of said Walter Dun and admitted to
be true by the demurrer of said Duncan McArthur thereto, who was
the respondent to said original bill,
viz.:"
"That said McArthur, on 3 January, A.D. 1825, obtained a patent
for the tract of land in controversy, which is situate in the
Virginia Military Reservation in the State of Ohio, on an entry
made on a Virginia military land warrant in the name of Robert
Means, assignee, on 23 November, A.D. 1822, followed by a survey of
said entry, made in the name of the said Robert Means, assignee, on
18 March, A.D. 1823; which said Robert Means before said entry, and
as early as the year A.D. 1808, had departed this life. And that,
on 4 April, 1825, another patent
Page 48 U. S. 267
for the same tract of land was issued to one James Galloway, on
an entry thereof made in the name of said Galloway, on 10 December,
A.D. 1824, on another Virginia military land warrant, and which was
duly surveyed in his (said Galloway's) name, on the 15th of the
same month of December, A.D. 1824, and which tract of land was
subsequently conveyed by said Galloway to said Walter Dun. Upon
which said state of facts touching the titles of the said parties
to said tract of land this point was raised by the counsel for the
complainant in said bill of review upon the hearing and argument
thereof,
viz., whether the said location and survey of
said tract of land in the name of said Galloway, and the patent
issued to him for the same, are not null and void as being made and
done in contravention of the proviso to the second section of the
Act of Congress of 1 March, A.D. 1823, entitled 'An act extending
the time for locating Virginia military land warrants and returning
surveys thereon to the General Land Office.'"
Thus it will appear that the only question for consideration
here arises on the proper construction of the proviso contained in
the second section of the act of Congress above mentioned. This act
-- after providing in the first section that the officers and
soldiers of the Virginia line or Continental establishment, their
heirs or assigns, entitled to bounty lands within the country
reserved by the State of Virginia, between the Little Miami and
Scioto Rivers, shall be allowed a further time of two years from 4
January, 1823, to obtain warrants and complete their locations, and
the further time of four years from the same period to return their
surveys and warrants to the General Land Office to obtain patents
-- contains in the second section a proviso in the following
words:
"Provided that no locations as aforesaid in virtue of this or
the preceding section of this act shall be made on tracts of lands
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 act
shall be considered null and void."
3 Stat. 773. Upon this proviso, which appears to be a literal
transcript of the proviso contained in the first section of the act
of 1807, the question for our consideration, as has been already
remarked, is presented.
On behalf of the complainants in the bill of review (the heirs
of Duncan McArthur) and the holders of the elder patent, it is
insisted that not only is their title under the prior entry and
survey in the name of Means, and the patent issued in pursuance
thereof, protected by the operation of the proviso
Page 48 U. S. 268
just mentioned, but that the effect of that proviso -- nay, its
express language -- renders absolutely void the claim of title set
up by the heirs of the junior patentee, Dun, denying to it, and to
all similar clauses any foundation on which legally or equitably
such claims can be founded. The heirs of Dun contend that the
patent to McArthur having been granted upon a location and survey
made in the name of Means, when in fact Means had been dead
fourteen years anterior to the entry and thirteen years previously
to the survey in his name, this entry and survey, and the patent
issued to McArthur thereon, were of no legal efficacy, and should
be superseded by the patent to James Galloway, upon an entry made
by said Galloway in 1824, under which patent the heirs of Dun
derive title by purchase. In support of this position it is said
that an entry in the name of a dead man is on general principles
void, as was ruled by the cases of
Galt
v. Galloway, 4 Pet. 345, and of
McDonald's
Heirs v. Smalley, 6 Pet. 261. These cases, though
express to the single point for which they have been cited, are
nevertheless by no means decisive of the question certified, if
indeed they are at all applicable thereto, that question not
involving simply the validity of an entry made in the name of a
dead man, but embracing the legality of locations made since the
enactment of the proviso upon lands previously patented or
surveyed, without reference to the circumstance of the death or
life of those in whose names such previous patents may have been
granted or surveys made.
The language of the proviso is broad and comprehensive enough to
comprise patents and surveys in the names of persons either living
or dead, and it expressly declares to be null all patents posterior
in time to those surveys and patents thus generally described and
protected by that language. The proviso, then, if the natural and
common meaning of its terms be adopted, must extend to and protect
alike patents, entries, and surveys of either description, so far
as this end is accomplished by preventing the possibility of
conflict with locations and patents coming into existence after its
date. Its operation and effect must be thus comprehensive unless
they can be understood to have been limited and controlled by some
clear and authoritative exposition. Have they been so limited? It
cannot be necessary here to discuss the competency of Congress in
reference either to the power of imposing a limitation upon the
time within which locations upon the ceded lands should be made or
as to the conditions on which further time might be extended to
persons who had been excluded by the limitation first laid on
locations. These subjects have been treated with clearness by Chief
Justice Marshall in the case of
Page 48 U. S. 269
Jackson v.
Clarke, 1 Pet. 628, and the power of Congress with
respect to them placed beyond objection.
In the next place, in the interpretation of the proviso
contained in the laws of 1807 and 1823, the case of
Jackson v.
Clarke, we think, effectually overrules the distinction
attempted in the argument of this cause between a patent and a
survey in the operation of either proviso -- a distinction, as we
have already remarked, not taken by the language of the statute.
Speaking of the survey in the case just quoted, Chief Justice
Marshall says:
"The survey, having every appearance of fairness and validity
given to it by the officers of the government, is sold as early as
1796 to persons who take possession of it and have retained
possession ever since. Why should not the proviso in the act of
Congress apply to it? The words, taken literally, certainly apply
to it. Does the language of the clause furnish any distinction
between the patent and the survey? Lands surveyed are as completely
withdrawn as lands patented from subsequent location."
Again it is said in the same case that
"a survey made by the proper officer, professing to be made on
real warrants and bearing on its face every mark of regularity and
validity, presented a barrier to the locator which he was not
permitted to approach, which he was not at liberty to examine."
The case of
Jackson v. Clarke may be appealed to for
another illustration which is very apposite to the present
controversy. In support of the junior location and patent of Dun,
the court has been referred to the case of
Taylor's
Lessee v. Myers, 7 Wheat. 23, as an instance in
which a location on land previously surveyed had been permitted
subsequently to the proviso of 1807. But in the case of
Taylor's Lessee v. Myers, the owner had openly abandoned
his location and survey, and had placed his warrant on other land.
In such a case, said the Court,
"the land was universally considered as returning to the mass of
vacant land, and becoming, like other vacant land, subject to
appropriation; therefore, in
Taylor's Lessee v. Myers, the
Court said, the proviso which annuls all locations made on lands
previously surveyed applies to subsisting surveys, to those in
which an interest is claimed, not to those which have been
abandoned, and in which no person has an interest. This survey has
not been abandoned by any person having an interest in it."
No force, then, is perceived in the instance adduced, and no
strength can be imparted by it to the position occupied by the
defendants in this case, because by the abandonment the previous
location and survey to every legal and operative purpose were
annihilated, and there might be said in effect to have been none
such, the original locator could not be compelled to hold
Page 48 U. S. 270
or continue them, it having been expressly ruled by this Court
that the owner of a survey or a patent may abandon either at his
pleasure.
But it is contended for the defendants that the entry and survey
made in the name of Means, being by reason of his death at the date
of that entry and survey absolutely void, under the authority of
the decisions of
Galt v.
Galloway, 4 Pet. 345, and
McDonald
v. Smalley, 6 Pet. 261, the proviso in the act of
Congress did not revive them or give them validity. That according
to the interpretation of the act of Congress in the case of
Jackson v. Clarke, the proviso is extended no farther than
to irregular patents. The language of the decision just mentioned
does not literally apply to surveys pronounced absolutely void, by
the death of the locator, or by any other cause; but it is equally
true that neither the terms nor the spirit of the reasoning of the
court, not of the decision, declare or imply anything against the
justice of such claims. The reasoning of the Court in that case
would apply as strongly to the justice of cases which were not
perfected by reason of death, as it possibly could do to such as
were not perfected in consequence of the neglect or omission of the
persons interested, and surely the intrinsic character of the claim
could not be affected by the former cause; its justice as against
the government would remain precisely the same. The government
would not have fulfilled its acknowledged obligation to the owner
of the warrant or survey.
There can be no question as to the power of the government to
revive or confirm surveys or patents made or granted to persons not
actually in life when such surveys or patents were made; there is
an obvious propriety in a fulfillment of its undertakings by the
government, and in its forbearance to enforce a forfeiture founded
on no delinquency in those who would be affected thereby, and there
is nothing in the act of Congress or in any judicial constitution
thereof requiring or indicating an opposite conclusion. Indeed, the
utmost which it has been attempted to deduce from the statute, or
from any interpretation of the statute, is the absence of an
authoritative declaration, that surveys and patents made or issued
in the names of persons not living at the periods of their
respective dates have not in fact been reserved and confirmed.
But is not this deduction directly at war with the unequivocal
authority of this Court, in open conflict with the decision of
Galloway v.
Finley, reported in 12 Pet. 264? We hold that it
is. In order to escape from this decision, it has been argued that
the case last mentioned ruled nothing beyond this that Galloway, as
the vendee of Finley, should not be permitted to avail
Page 48 U. S. 271
himself of information derived from his vendor, and use it with
the view to impeach the vendor's title, and as a means to obtain a
better title in himself, in opposition to the title of that vendor.
It is true that the point here stated was ruled in the case, but
the decision was by no means limited to that single point. Under
the pleadings and proofs in that case, the title of Finley was
necessarily brought into review; its character and the effect of
the act of Congress with respect to it were discussed and decided
upon. In that case, as in the present, it was contended that the
statute operated upon titles merely irregular or defective, and did
not embrace such as were void. In refutation of this
interpretation, the Court proceed thus:
"It is insisted that the section had reference to imperfect, and
not to void, titles. The legislature merely affirmed a principle
not open to question, if this be the true construction. Had an
effective patent issued, the government would not have had any
title remaining, and a second grant would have been void of course.
Something more undoubtedly was intended than the protection of
defective, yet valid, surveys and patents."
Again, the Court said
"The death of the grantee is an extrinsic fact, not impairing
the equity of the claim as against the government. The defects of
all others most common in the military districts of Kentucky,
Tennessee, and Ohio were where the soldier had died, and the entry,
survey, and grant had been made in the name of the deceased. In his
name the warrant almost uniformly issued; who the heirs were was
usually unknown to the locator, and disregarded by the officers of
the government when perfecting the titles. In Tennessee and
Kentucky, provision was made at an early day that the heir should
take by the grant; and why should we presume that Congress did not
provide for the protection of his claim to the lands purporting to
have been granted, when the legislation of the federal government
was of necessity controlled in this respect by the experience of
members coming from states where there were military lands? The
statute is general, including by name all grants, not
distinguishing between void and valid; and the plainest rules of
propriety and justice require that the courts should not introduce
an exception, the legislature having made none. Congress had power
in 1807 to withhold from location any portion of the military
lands, and, having done so in regard to the lands of C. Bradford,
the complainant Galloway had no right to enter the same."
Authority so directly in point leaves little room for comment;
indeed, it may be said that,
mutate nomine, the case of
Galloway v. Finley is the case of
McArthur's Heirs v.
Heirs of Dun. Upon the plain and natural import of the
Page 48 U. S. 272
proviso in the statutes of 1807 and of 1823, upon the reasoning
of this Court in the case of
Jackson v.
Clarke, 1 Pet. 628, but chiefly upon the very
pointed authority of the case of
Galloway v. Finley, we
are of the opinion that the location and survey of the land in
question in the name of James Galloway, and the patent issued to
him for the same, as mentioned in the certificate of division, are
null and void as being made and done in contravention of the
proviso to the second section of the Act of Congress of 1 March,
A.D. 1823, entitled, "An act extending the time for locating
Virginia military land warrants, and returning surveys thereon to
the General Land Office," and we do order this opinion to be
certified to the Circuit Court of the United States for the
District of Ohio.
Order
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 on the point and question on which the judges of the said
circuit court were opposed in opinion, and which were certified to
this Court for its opinion agreeably to the act of Congress in such
case made and provided, and was argued by counsel. On consideration
whereof, it is the opinion of this Court that the location and
survey of the land in question in the name of James Galloway, and
the patent issued to him for the same, as mentioned in the
certificate of division, are null and void, as being made and done
in contravention of the proviso to the second section of the Act of
Congress of 1 March, A.D. 1823, entitled, "An act extending the
time for locating Virginia military land warrants, and returning
surveys thereon to the General Land Office." Whereupon it is now
here ordered and decreed by this Court that it be so certified to
the said circuit court.