# Clark v. Smith/Opinion of the Court

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* Opinion of the Court
United States Supreme Court
38 U.S. 195
Clark v. Smith
By patent of the 15th 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 1280 poles, north 74°, west 3840 poles, north 16°, east 1800 poles, to the bank of the Ohio, with its miles below Fort Massac; thence running up the Ohio, with its several meanders 4480 poles to the beginning.
The patent is in conformity to a survey of 7th June, 1784, returned to the land office of Virginia; founded on an entry, and an amendment thereof, dated 17th May, and 26th 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 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 the 19th of 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 estent, 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. 6 Cranch, 87. 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; 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 seisin of an ancestor, or predecessor, and to thirty years, if on the demandant's own seisin. 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 harrassed 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 any one 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; 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's Rep. 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 vonvenience 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 having been entertained of its propriety. It may be said 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.

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