The possession of a warrant has always been considered at the
land office in Ohio sufficient authority to make locations under
it. Letters of attorney were seldom, if ever, given to locators,
because they were deemed unnecessary.
An entry could only be made in the name of the person to whom
the warrant was issued or assigned, so that the locator could
acquire no title in his own name except by a regular
assignment.
When an entry is surveyed, its boundaries are designated, and
nothing can be more reasonable and just than that these shall limit
the claim of the locator. To permit him to vary his lines so as to
affect injuriously the rights of others subsequently acquired would
be manifestly in opposition to every principle of justice.
Since locations were made in the Virginia Military District in
Ohio, it has been the practice of locators, at pleasure, to
withdraw their warrants, both before and after surveys were
executed. This practice is shown by the records of the land office,
and is known to all who are conversant with these titles.
The withdrawal is always entered on the margin of the original
entry as a notice to subsequent locators, and no reason is
necessary to be alleged as a justification of the act. If the first
entry be defective in its calls, or if a more advantageous location
can be made, the entry is generally withdrawn. This change cannot
be made to the injury of the rights of others, and the public
interest is not affected by it. The land from which the warrant is
withdrawn is left vacant for subsequent locators, and the warrant
is laid elsewhere on the same number of unimproved lands.
As the records of the land office are of great importance to the
country and are kept under the official sanction of the government,
their contents must always be considered, and they are always
received in courts of justice as evidence of the facts stated.
Under the peculiar system of the Virginia land law as it has
been settled in Kentucky and in the Virginia Military District in
Ohio by usages adapted to the circumstances of the country, many
principles have been established which are unknown to the common
law. A long course of adjudications has fixed these principles, and
they are considered as the settled rules by which these military
titles are to be governed.
An entry or the withdrawal of an entry is in fact made by the
principal surveyor at the instance of the person who controls the
warrant. It is not to be presumed that this officer would place
upon his records any statement which affected the rights of others
at the instance of an individual who had no authority to act in the
case. The facts, therefore, proved by the records must be received
as
prima facie evidence of the right of the person at
whose instance they were recorded and as conclusive in regard to
such things as the law requires to be recorded.
Page 29 U. S. 333
No principle is better settled than that the powers of an agent
cease on the death of his principal.
A location made in the name of a deceased person is void, as
every other act done in the name of a deceased person must be
considered.
The withdrawal of an entry is liable to objection, subject to
the rights which others may have acquired subsequent to its
withdrawal's having been entered in the land office. This is
required by principles of justice as well as of law.
James Galt, as heir to his brother Patrick Galt, the ancestor of
the complainants, on 6 August, 1787, made an entry for military
lands in the Virginia reservation in the following words:
"No. 610, James Galt (heir) enters 1,000 acres on part of a
military warrant, No. 194, on the Miami River, beginning at the
upper corner of Francis Wheeling's entry, No. 438, running up the
river five hundred poles when reduced to a straight line; thence at
right angles with the general course of the river, and with
Wheeling's line for quantity."
The bill of the appellants stated that this entry was valid on
15 November, 1796, and that a survey under the same was made
thereon agreeably to its calls; that James Galt died intestate
prior to 2 March, 1807, and that posterior thereto Elias Langham,
without any authority from James Galt or from the complainants,
caused an entry of the withdrawal of 400 acres to be made in the
books of the surveyor, the effect of which was to render the
residue of the entry of such a shape as that it could not be
legally surveyed, the law requiring that the breadth of a survey
shall be one-third of its length. Subsequent to this withdrawal,
the 400 acres which Langham attempted to have left vacant thereby
were located by Galloway by entries of 300 acres in his own name
and 100 acres in that of Ladd, both of which were included in one
survey made on 18 June, 1808; but afterwards, on 20 July, 1809,
Galloway having caused the word "error" to be entered on the face
of the plats of the survey of 1808, had separate surveys executed
in his own name and in that of Ladd, and also caused a survey to be
made for himself of 600 acres of James Galt's entry of August 1787
of
Page 29 U. S. 334
1,000 acres, the part of the same, to withdraw which no attempt
had been made by Elias Langham. A patent for the 400 acres was
obtained by Galloway; and he afterwards conveyed the land included
in the same to different persons, who are made parties to the bill.
The bill also stated that Thomas Baker resides on part of the 1,000
acres, claiming title under Joshua Collet. That Collet claims title
to part; that William Patterson is in possession of, claiming title
to the residue; and that Galloway refuses to withdraw the 400
acres. The complainants say they cannot procure a patent for the
600 acres, without jeopardizing their title not only to the 400
acres, but also to the 600 acres, and pray for particular and
general relief.
The answer of James Galloway, Jr., states that Langham withdrew
the 400 acres of Galt's entry of 1,000 acres and that he believes
the withdrawal was authorized, but knows not by whom, and that
since the bill was filed, he has heard the same was authorized by
Westfall. The survey on the 600 acres, the residue of Galt's entry,
he says, he executed and returned, and that he was at the time he
made the same a regular deputy under Anderson. He obtained a patent
for 300 acres of the land included in the patent, and sold the
same.
Joshua Collet and William Patterson, in their answers, claim to
hold title under Westfall, the same having been sold as his
property for his debts or responsibilities. Patterson represents
that he believes Westfall made a contract with Galt for the whole
of warrant No. 194, on a part of which his claim is founded, and
that Westfall obtained patents in his own name for other entries on
the warrant and sold them for his own benefit.
Elias Langham answers that at the request of Westfall, he
withdrew the 400 acres as charged. He believed Westfall purchased
the warrant No. 194 from Galt, in his lifetime. He considered
himself in possession of the whole as agent of Westfall, except
1,000 acres transferred to Mallow from 1797, and never heard of
complainants' claim
Page 29 U. S. 335
until after the death of Westfall. By order of Westfall, he laid
off the Town of Westfall in Pickaway County, and sold several small
tracts of land, part of warrant No. 194, and that he contracted
with Westfall to withdraw and reenter other lands, which entitled
him to 600 acres.
Evidence was exhibited intended to show that an impression
prevailed generally that Westfall was entitled to half of Galt's
military land warrant. That Galt's warrant was put into Westfall's
hands to locate land. The opinion of the court states such parts of
the testimony and other facts of the case, as were considered made
out by proof.
The circuit Court of Ohio gave a decree against the
complainants, and they appealed to this Court.
Page 29 U. S. 337
MR. JUSTICE McLEAN delivered the opinion of the Court:
The complainants claimed through their ancestor, James Galt,
1,000 acres of land under a military warrant
Page 29 U. S. 338
obtained by him, as heir to his brother, Patrick Galt. The entry
was made on 6 August, 1787, as follows:
"No. 610, James Galt, heir, enters 1,000 acres on part of a
military warrant, No. 194, on the Miami River: beginning at the
upper corner of Francis Whiting's entry, No. 438, running up the
river five hundred poles, when reduced to a straight line; thence
at right angles with the general course of the river, and with
Whiting's line for quantity."
On 15 November, 1796, the entry was surveyed agreeably to its
calls, and the survey was recorded on 31 May, 1798. James Galt died
intestate in 1800. In 1805, Elias Langham, under the authority, as
he alleges in his answer, of Westfall, who made the original entry,
withdrew 400 acres of the warrant, on this entry, and located the
same number of acres at another place, in the name of James Galt,
heir, &c.
The 400 acres left vacant by this withdrawal were located by
James Galloway, Jr., 300 acres of which were entered in his own
name, and 100 acres in the name of J. Ladd. These entries were
surveyed on 20 July, 1809, after Galloway had caused to be made a
survey of the 600 acres, which remained of the entry in the name of
Galt. A patent was issued on the entries and surveys of Galloway,
and he has conveyed to four of the defendants, each, 100 acres.
Thomas Baker and William Patterson are in possession of, and claim
title to the 600 acres in the name of Galt. Baker's claim
originated by a sale under an attachment against Westfall, and
Patterson's by a purchase from him, but he does not appear from the
facts in the case to have had any interest in the land.
There is no evidence that Galloway had any agency in the
withdrawal of a part of the entry, as stated by Langham. The
complainants allege that the withdrawal of the 400 acres will
invalidate the residue of the entry, as a survey, agreeably to its
calls, will give the 600 acres an illegal form. They pray for such
general and particular relief, as the nature and circumstances of
their case may require.
Page 29 U. S. 339
It is contended by the defendants' counsel that no relief can be
given against the defendants, who claim title to the 600 acres, as
by the facts stated in the bill it clearly appears they have no
title either equitable or legal. That the sale under the attachment
could convey no title to Collet, as Westfall had no claim whatever
to the land, and that Baker and Patterson, who are now in
possession, must be considered as trespassers. These occupants can
be considered in no other light by the Court than intruders, and
the remedy against them is at law, and not in chancery. No decree
could be made against them unless it be that they should deliver
possession of the premises, and to obtain this, the action of
ejectment is the appropriate remedy.
Jurisdiction of this branch of the cause cannot be taken as an
incident to the other, for it does not appear that the withdrawal
of the 400 acres will destroy the entry for the residue, and if it
did, it would only be necessary to relieve against the defendants
who held the legal title, to restore to the complainants the means
of perfecting their title to the 600 acres.
It appears that a land warrant, numbered one hundred and
ninety-four, for 6,000 acres was issued to James Galt, heir at law
and legal representative of Patrick Galt, deceased. That this
warrant was placed in the hands of Westfall, who located it on
various tracts of land, including the tract in controversy.
In 1798, 3,000 acres of this warrant were assigned by Galt to
Westfall. The assignment was made on three surveys which had been
executed under these entries; one of these surveys was assigned by
Westfall to Adam and Henry Mallow, and on all of them patents have
been issued.
The possession of the warrant by Westfall is the only evidence
of his right to make the locations, and this has been uniformly
considered, at the land office, as a sufficient authority. Letters
of attorney were seldom, if ever, given to locators, because they
were deemed unnecessary.
The entry could only be made in the name of the person to whom
the warrant was issued or assigned, so that the
Page 29 U. S. 340
locator could acquire no title in his own name except by a
regular assignment.
The power of Westfall to make the location is not contested, but
the validity of the withdrawal is denied by the complainants on two
grounds:
1. That the warrant had become merged in the survey, and could
not be withdrawn.
2. That Langham had no power to withdraw it.
Several authorities have been referred to in support of the
first position. Much reliance is placed on the decision in the case
of
Estill v. Hart's Heirs, reported in Hardin 567. In its
opinion, the court in that case said that
"Whatever doubts might be raised as to the particular time at
which the warrant shall be said to be merged in the survey, whether
from the time it is approved by the chief surveyor and recorded or
from the time it was delivered out to the owner or from the end of
three months after making the survey, we conceive the case clear
that after registering, the warrant was no longer an authority to
any surveyor to receive an entry or make another survey."
The right of withdrawing a warrant after a survey had been
executed was not involved in this case.
Two entries were made by Hart, one in 1780, the other in 1782,
and both were surveyed in 1784. Boon subsequently entered land
adjoining these surveys. Some years after this was done, Hart's
executor and one of his heirs caused another survey to be made of
the entries of his ancestor, which, varying from the former
surveys, covered a part of Boon's land. The court decided, and very
properly, that the second survey was void. When an entry is
surveyed, its boundaries are designated, and nothing can be more
reasonable and just than that these shall limit the claim of the
locator. To permit him to vary his lines so as to affect
injuriously the rights of others subsequently acquired would be
manifestly in opposition to every principle of justice.
In the case of
Loftus v. Mitchel, 3 March. 598, it is
laid down by the court that a survey made by a person without the
authority of the owner of the entry does
Page 29 U. S. 341
not merge the warrant. The same principle is recognized in the
case of
Galloway's Heirs v. Webb, 1 Marsh. 130. In the
case of
Taylor v. Alexander, 3 Marsh. 501, the court
decided that a second survey of the same entry was void.
It will be perceived that none of the authorities cited sustains
the position that a warrant cannot be withdrawn after the survey
has been executed and recorded. If the warrant merge in the entry,
and the entry in the survey, as laid down in some adjudications,
and if the warrant, being once merged, is beyond the control of the
owner, an entry equally with a survey would prevent a withdrawal of
the warrant.
Since locations were made in the Virginia Military District in
Ohio, it has been the practice of locators, at pleasure, to
withdraw their warrants, both before and after surveys were
executed. This practice is shown by the records of the land office,
and is known to all who are conversant with these titles.
The withdrawal is always entered on the margin of the original
entry as a notice to subsequent locators, and no reason is
necessary to be alleged as a justification of the act. If the first
entry be defective in its calls, or if a more advantageous location
can be made, the entry is generally withdrawn.
This change cannot be made to the injury of the rights of
others, and the public interest is not affected by it. The land
from which the warrant is withdrawn is left vacant for subsequent
locators, and the warrant is laid elsewhere, on the same number of
acres of unappropriated land.
In the case of
Taylor's Lessee v.
Myers, 7 Wheat. 23, one of the questions considered
and settled was
"can the owner of a survey, made in conformity with his entry,
and not interfering with any other person's right, abandon his
survey after it has been recorded?"
THE CHIEF JUSTICE, who delivered the opinion of the Court,
said
"It seems to be an ingredient in the character of property that
a person who has made some advances towards acquiring it may
relinquish it, provided the rights of others be not affected by
such relinquishment. This general principle
Page 29 U. S. 342
derives great strength from the usage which has prevailed among
these military surveys. The case states that it has been customary
ever since the year 1799 to withdraw surveys after they have been
recorded. The place surveyed has, of course, been considered as
having become vacant, and has been appropriated by other warrants
which have been surveyed and carried into grant."
In that case, the Court did not decide, because it was
unnecessary to do so, that the warrant thus withdrawn could again
be located, but this would follow as a matter of course. If the
withdrawal leave vacant the land entered, the warrant remains
unsatisfied, and may be again located on any other unappropriated
land.
It appears, therefore, that the right of the owner of withdraw
his warrant after the survey has been executed and recorded is
clear both on principle and authority.
The power of Langham to make the withdrawal is the next point to
be considered.
Possession of the warrant, as has been shown, is a sufficient
authority to make the location, and it will not be questioned that
the locator may amend his entry by changing its calls. If he may do
this, he may withdraw it and make a new location. The control which
he must necessarily exercise over the warrant cannot, consistently
with the interest of the owner, be limited to the first attempt at
making an entry. If that attempt be imperfect or if the selection
of the land be less advantageous to his employer than it might be,
there is no reason why he should not change the entry. The
authority necessarily extends to the withdrawal as fully as to the
location, and such has been the uniform construction of the power
of the locator. Confidence is reposed in his knowledge and
discretion, and he has only to act in good faith to bind his
principal.
The register of the land office keeps a record of all entries
and surveys, and on his official certificates patents are issued by
the government. His records are always under his control and all
entries made in them are made by himself or by a person authorized
to act for him.
As the records of this
Page 29 U. S. 343
office are of great importance to the country, and are kept
under the official sanctions of the government, their contents must
always be considered, and they are always received in courts of
justice as evidence of the facts stated.
If a different rule were now to be established, and every act of
the locator in making an entry or withdrawing it must be shown to
have been done under a formal letter of attorney, it would destroy,
in all probability, a majority of the titles not carried into
grant.
Under the peculiar system of the Virginia land law, modified as
it has been in Kentucky and in the Virginia Military District in
Ohio by usages adapted to the circumstances of the country, many
principles have become established which are unknown to the common
law. A long course of adjudications has fixed these principles, and
they are considered as the settled rules by which these military
titles are to be governed.
An entry or the withdrawal of an entry is in fact made by the
principal surveyor, at the instance of the person who controls the
warrant. It is not to be presumed that this officer would place
upon his records any statement which affected the rights of others
at the instance of an individual who had no authority to act in the
case. The facts, therefore, proved by these records must be
received as
prima facie evidence of the right of the
person at whose instance they were recorded, and as conclusive in
regard to such things as the law requires to be recorded.
It will be in the power of an individual to rebut this
presumption of authority in a person whose acts have been injurious
to him and were unauthorized by an exhibition of facts and
circumstances.
In the case of
Moore v. Dodd, reported in 1 Marsh. 140,
the withdrawal of an entry by administrators was declared to be
void, as the right had descended to the heir, and the
administrators had no control over it. That the withdrawal in that
case was made at the instance of the administrators appeared from
the entry on the record.
Langham, in his answer, states that he made the withdrawal of
the 400 acres, by the authority of Westfall.
Page 29 U. S. 344
This withdrawal was made eighteen years after the date of the
entry, and nine years after the survey was executed. So great a
lapse of time from the entry to the withdrawal is a circumstance
which must be considered as shaking the right of the locator, which
depends alone upon his having located the warrant. In this case
there is no positive evidence that Westfall, after the entry,
exercised any agency over the land in the payment of taxes or in
any other manner until this withdrawal took place on the
application of Langham.
The survey which was executed by O'Connor in 1796 does not
appear to have been done at the instance of Westfall, though, from
his having made the entry he may be presumed to have directed the
survey.
From the answer of Patterson it appears that Westfall sold the
300 acres claimed by him to one Davis in the year 1806, and gave a
bond with security for a title. It is now apparent that he had no
claim to any part of the land in controversy. The right to the
warrant for 6,000 acres by assignments on the surveys for 3,000
acres, which seems to have been urged in the court below, is
abandoned by the counsel in the argument here, and the power to
withdraw the 400 acres is rested on the first location of the
warrant.
In the absence of any proof of right, the sale of a part of this
tract by Westfall is an evidence of bad faith on his part, and
tends to throw suspicion over the act of withdrawal. It is a well
settled principle that the locator, as such, has no right to sell
the land.
It is in proof that James Galt, to whom the warrant issued, and
in whose name the locations under it were made, died in 1800. The
withdrawal was made in 1805, and the question is presented whether
the decease of the owner of the warrant puts an end to the power of
the locator.
No principle is better settled than that the powers of an agent
cease on the death of his principal. If an act of agency be done
subsequent to the decease of the principal, though his death be
unknown to the agent, the act is void.
On the death of James Galt, the land in controversy
Page 29 U. S. 345
descended to his heirs, and there is no proof that they
authorized Westfall to act in their behalf. If he had the power to
withdraw any part of the warrant, it must have been derived from
the single circumstance of his having had the control of the
warrant when the entry was made.
Under ordinary circumstances, this power, as has been shown,
would be sufficient. But it is a power which may be revoked or
terminated by circumstances. The possession of the warrant is
tantamount to a letter of attorney to make the entry, to alter or
withdraw it, and to direct the survey, but is there no limitation
when this authority under the warrant shall cease? Can it be safely
considered an investing the locator with a higher power than a
letter of attorney?
If the authority be in the nature of a power of attorney, and
subject to the same principles of law, it ceased on the death of
Galt. On that event, new interests sprung up which could not be
controlled by the agent of the deceased. In the case of
Hansford v. Minor's Heirs, reported in 4 Bibb 385, the
court decided that
"After the death of Minor, as the law then stood, it was clearly
irregular to survey the entry and obtain the grant in his name, but
as he at that time had a devisable interest in the land, upon his
decease that interest passed to Nicholas, the father of the
appellees, and consequently the title ought regularly to have been
perfected in his name."
By a statute of Kentucky passed in 1792, lands granted to
deceased persons descended to their heirs or devisees. This statute
is not in force in Ohio so as to give validity to the location in
the name of James Galt of the 400 acres withdrawn by Langham. This
location, having been made in the name of a deceased person, is
believed to be void, as every other act done in the name of a
deceased person must be considered.
An entry made in the name of a dead man is a nullity, as appears
from the decision in the case of
McCracken's Heirs v. Beall
& Bowman, reported in 3 March. 210, but such an entry in
Kentucky, under the statute of 1792, enures to the benefit of the
heirs of the deceased.
There is no pretense that the withdrawal was made under
Page 29 U. S. 346
any authority from the heirs of Galt; such a presumption would
be rebutted by the subsequent location of the 400 acres in the name
of the deceased. An attempt has been made to show that the heirs of
James Galt claim all the lands in Ohio entered in his name, and
among other tracts, the 400 acres located by the withdrawn warrant.
But no other proof of the fact has been adduced except the vague
declarations of David Collens, an alleged agent of William T. Galt,
who acted for the other heirs, and these are not evidence. If the
heirs had sanctioned the withdrawal by claiming the new location,
it would render the act valid, and if such evidence be in the power
of the defendants, it should have been produced.
As the heirs are residents of another state, the lapse of time
does not raise a very strong presumption against them.
No doubt can exist that Langham, in making the withdrawal, acted
without authority, and the question is presented whether an act
thus done shall bind the owners of the entry.
There is much plausibility and force in the argument that the
entry of a withdrawal on the record, being notice to subsequent
locators, must be held valid, though done without authority, in
favor of rights subsequently acquired, without notice of the
improper withdrawal.
The law requires the principal surveyor to record entries and
surveys; these and any other matters which the law requires to be
recorded must be received as conclusive of the facts, and parol
evidence cannot be received to invalidate them unless fraud be
shown. But the law does not require the withdrawal of an entry to
be recorded. This is an act of the party, rendered essentially
necessary to the regularity of entries, but it cannot be considered
of as high validity as the record of an entry or survey.
It operates as a notice to subsequent locators, and must be
received as
prima facie evidence of the right of the
person who caused the withdrawal to be made. But unless the law had
required the principal surveyor to judge of the authority by which
the warrant is withdrawn, and to make
Page 29 U. S. 347
the withdrawal on his record, can it be considered as
conclusive?
The principal surveyor may enter a withdrawal, as was done in
the case under consideration, at the instance of an individual who
has not the shadow of authority. If entries and surveys may be
destroyed in this manner, they must be considered of little value.
On the other hand, if the authority of the person who withdraws the
warrant may be contested under any circumstances, entries
subsequently made may be annulled.
In the latter case, however, it is always in the power of the
locator, when he is about to enter a tract from which a warrant has
been withdrawn, to ascertain at whose instance the withdrawal was
made, and this fact will enable him to investigate the authority
under which the act was done. If the withdrawal was made by the
owner of the warrant or the person who located it, the authority
would be unquestionable. In the latter case, a great lapse of time
might create doubts whether the power of the locator had not
terminated, and this would lead to particular inquiry.
If it appeared that the warrant had been withdrawn by a
stranger, should not that circumstance put the subsequent locator
on strict inquiry? He has the means of guarding his interests by
reasonable diligence, and this the law always imposes.
But the owner of the original entry, if it may be withdrawn
without authority, has no means by which his interests can be
protected. The principal surveyor is not under his control, nor, by
the usages of the office, is he answerable to him for damages. It
seems, therefore, that the principles of justice as well as of law
require the act of withdrawal to be liable to objection within the
limits above prescribed.
As the withdrawal in this case was without authority, it was a
void act, and consequently no right was acquired by the subsequent
location.
The decree of the circuit court must be affirmed, so far as
relief is denied against Baker and Patterson, who are in possession
of the 600 acres, and reversed as to the
Page 29 U. S. 348
other defendants, and the cause is remanded to the circuit
court with instructions to decree that William Wilson, Andrew
Gibson, Mattew Gibson, and William Stephenson do, on or before the
first day of November next, execute to the complainants, jointly or
severally, a release of their interest in the premises, provided
before that time they shall have been paid of their improvements
under the statute of Ohio. And the circuit court is hereby directed
to proceed to ascertain the value of such improvements agreeably to
the above statute, each party to pay his own costs in this
Court.
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, adjudged, and decreed by this Court that the decree of the
said circuit court in this cause be and the same is hereby affirmed
so far as relief is denied by the said court against Baker and
Patterson, who are in possession of the 600 acres of land, and that
the said decree of the said circuit court in this cause be and the
same is hereby reversed as to the other defendants. And it is
further ordered by this Court that this cause be and the same is
hereby remanded to the said circuit court, with instructions to
decree that William Wilson, Andrew Gibson, Matthew Gibson, and
William Stephenson do, on or before the first day of November of
the year of our Lord 1830, execute to the complainants jointly or
severally a release of their interest in the premises, provided
that before that time they shall have been paid for their
improvements, under the statute of Ohio. And that the said circuit
court be and the same is hereby directed to proceed to ascertain
the value of such improvements agreeably to the above statute, and
that the said court do and act further in the premises as to law
and justice may appertain. And it is further ordered by this Court
that each party respectively in this Court pay his own costs
accruing in this Court.