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January 1, 1832


ERROR to the circuit court of the United States for the district of Ohio. 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 the 1st day of 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 the 5th of January 1788, recorded on the 7th of 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 north-west side, &c. The defendants then read in evidence the act of congress of the 3d of 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 the 12th of February in the year 1784, for services performed in the Virginia state line, 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 they 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 they 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 they 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. The case was argued by Mr Ewing and Mr Corwin, for the plaintiffs in error; and by Mr Leonard and Mr Doddridge, for the defendant. The only question argued before the court was that which had reference to the validity of the title derived by the plaintiffs in error, the defendants below, under the entry and survey in the name of Richard C. Anderson. The counsel for the plaintiffs in error abandoned the point made in the circuit court, that they were entitled to the benefits of the statute of limitations. For the plaintiffs in error it was argued, that the plaintiffs' title was protected by the act of congress of March 3, 1807. That act was made to protect possessions against entries under certain descriptions of warrants; to prevent and entry or location on tracts for which patents had issued, or surveys had been made. It was admitted that there must have been a survey by some person, acting in an official capacity. The party claiming must show a colour of title; and that has been shown by the entry and survey in this case. There is no distinction under the law between surveys which were void and voidable. These terms are of very indefinite import, and the application of the act cannot turn upon them. The cases of Anderson's lessee v. Clarke, 1 Peters, 636, and of Hoofnagle v. Anderson, 7 Wheat. 212, sustain the principles claimed by the plaintiffs in error. When in 1807 congress passed the law, they must be presumed to have legislated on the then existing state of things. It was then well known that there were lands held under claims drawn under surveys made for services in the Virginia state line. It must be presumed the act was intended to apply to those cases. The equities of both classes of claimants were the same; both were meritorious; and the powers of congress extended to both. In 1823, congress passed a law in precise accordance with the act of 1807, after the decision of the court in Hoofnagle v. Anderson, in 1822, relating to Virginia state warrants. There is nothing appearing on the face of the survey, under which the plaintiffs in error held the land, showing that their title below was derived under a warrant for services in the state line: nor is it open to inquiry whether the surveyor was legally authorized to make the survey. The plaintiffs in error held as bona fide purchasers under Anderson's title: they are purchasers without notice. The case of Miller and others v. Kerr and others, 7 Wheat. 1, and the cases cited for the defendant in error have no application to this case. The law of 1807 was not in the view of the court in the decision of these cases. The limitation upon claims intended to be brought within the act of 1807, extends in terms to such a warrant as the plaintiffs'. The meaning of the terms 'patent' and 'survey,' is decided tin the case of Hoofnagle v. Anderson; and in that case, the survey was under a state line warrant. Mr Leonard and Mr Doddridge, for the defendant in error, contended that the act of congress upon which the plaintiffs rely, was intended to protect informal or imperfect entries or surveys under continental warrants, and not such as were absolutely void; such as surveys made under state line warrants. The surveys made on the ground, were to be protected when made under proper warrants. This construction is established in the cases reported in Hard. Reports, 348, 358, 359. In Miller and others v. Kerr and others, 7 Wheat. 1, this court decided, that as there was no reservation whatever of these lands in favour of the bounties due to the state line, no title could be acquired in virtue of such service. They add, the same principle was asserted by the court in the case of Polk's lessee v. Wendall; and we think it too clear to be controverted. The question upon which the court felt difficulty in Miller's case, was the admission of evidence questioning the validity of the warrant, which expressly recited, that the land was 'due in consideration of services for three years as a lieutenant of the Virginia continental line.' They determined in favour of admitting this evidence, because they say, 'until the consummation of the title by grant, the persons who acquire an equity, hold a right subject to examination. The validity of every document is then open to examination, whatever the law may be after the emanation of a patent.' The force of this decision, as applicable to this case, is in no respect impugned by the case of Hoofnagle v. Anderson, susequently decided, and reported in 7 Wheat. 212. In this latter case the party was protected by his patent, which was issued before the making of his adversary's entry. In Miller's case, the party claiming under a warrant, in the state line, did not hold an operative patent. He held the elder entry and survey. The other party, having the senior patent, held the legal title. Consequently the party stood upon his entry and survey, which was open to examination. In this case, the plaintiffs in error, having no legal grant, stand also upon their entry and survey: and upon the doctrine of Miller's case, these confer no title whatever. In the Lessee of Anderson v. Clarke and Ellison, 1 Peters, 628, it was considered what description of survey protected land from entry under the law of March 2, 1807. The question presented in that case was, whether an entry and survey upon a warrant previously satisfied, was protected. The general principle was not decided; the court being of opinion that the particular circumstances and relations of the parties connected with the entries operated to protect them. No doctrine is better settled than that a survey without an entry is void; none, than that an entry without a warrant to authorise it, is void. If the act of March 2, 1807, can be made to protect this survey, it protects that which before the passage of the law, was absolutely void–as much so as an entry made without reference to any warrant. The object of the law was to protect bona fide entries and surveys, made upon warrants capable of appropriating the land, but defective in some of the requisites specified in the law. This was a prudent and parental object. But it ought never to be construed as protecting that which originated in positive wrong, and unauthorised encroachment upon the rights of others. Whatever might have been the original rights and equities of the two classes of claimants, and however true it may be, as suggested by the chief justice, in Hoofnagle v. Anderson, 'that the rights of the state officers were not sufficiently respected when the legislature omitted to insert them, as well as their brethren of the continental line, in the reservation for military warrants;' it is certain that that omission limited and concluded their rights. An entry specifying that it was made upon a warrant in the state line, and a survey and patent containing the same specification, would be mere nullities; because all were contrary to law, and unauthorised upon the face of them. It is only where prima facie every thing is legal, that the grant appropriates the land: until the grant issues to shut up all inquiry into intermediate proceedings, the validity of both entry and survey depends upon the warrant. If that confer no authority, the entry and survey originate no right. Surely the act of March 2, 1807, was intended to protect existing rights, and not to be made the foundation of new ones. Yet such must be its operation if it protect the survey in question. Cited also, Swann's Collection of Ohio Land Laws, 121; 5 Cranch, 234; 7 Wheat. 212; 9 Wheat. 480.

The opinion of the court was delivered by: Mr Justice M'lean 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 twelve thousand four hundred and ninety-five.

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 the 1st 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 the 7th of 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 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 north west 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 north west side of the river Ohio; in such 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 authorised to 'issue patents on surveys which have been, or may be made within the territory reserved by the state of Virginia, north-west 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 ...

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