# Clark v. Smith

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United States Supreme Court
38 U.S. 195
Clark v. Smith
ON appeal from the Circuit Court of the United States for the district of Kentucky.
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.
A printed argument was submitted to the Court by Mr. Crittenden for the appellants. No counsel appeared for the defendant.
The argument of Mr. Crittenden stated:--
This is a suit in chancery, under the 29th section of the act of 1796, (Ken. Stat. Law, 293,) to compel the defendant to release his pretended claim to the land in question. The complainant derives title as follows, to wit: Patent to George Rogers Clark, dated 15th September, 1795, founded on an entry on treasury warrants, made 26th October, 1780, 'to begin on the Ohio, at the mouth of the Tennessee river, running down the Ohio,' &c. &c., surveyed June 7th, 1784, and registered June 4th, 1785; the survey and patent being for 36,962 acres. The patented George Rogers Clark, afterwards conveyed to William Clark, by deed dated 28th July, 1803, proved and recorded in the Court of Appeals in November, 1803.
At the suit of a creditor of he said patentee, the same tract of land, after the deed to William Clark, was subjected to sale, for satisfaction of the creditor's demand, and was then again purchased by George Woolfolk, to whom the commissioner of the Court (Samuel Dickinson) conveyed it by deed of the 14th June, 1827; and Woolfolk, by deed of the 13th October, 1827, conveyed to the said William Clark.
William Clark, thus doubly invested with assurance of title, and alleging possession of the land, filed his bill to compel a release of the defendant's pretended claims.
The defendant, by his answer, contests Clark's title on various grounds, and asserts his own claims, which are nothing more than ninepenny claims, originating within a few years past, by entries and purchases made with and of the public receiver, under the laws of Kentucky for the disposal of the lands of the state below the Tennessee river.
The documentary evidence establishes, beyond question, the legal title of the complainant. His possession is not denied by the answer, is fully proved by the depositions, and is incontestable.
The origin of the defendant's pretended claims was between thirty and forty years after the date of Clark's patent, and about half a century after Clark's survey was registered in the proper office of the state of Virginia, from whose laws his title originally emanated.
Here the case ends. It is necessary to look no further to embrace its whole merits as a legal controversy; and the conclusion is clear and obvious in favour of the complainant, both on general principles, and on the terms of the act of Assembly under which the bill is filed. In accordance with this are the cases of Starling, &c. vs. Hardin, 2 Bibb. 522; and Loftus vs. Cates, 1 Monroe, 98; in the first of which it is expressly said that, in a contest with those who have no title originating anterior to the patent, no other evidence of title than the patent need be produced.
But the defendant has gone altogether beyond those limits, and proposes to litigate questions that, in our opinion, do not belong to or arise in the case. He contends that the land was not subject to appropriation by Clark's warrants at the date of his entry, and that, therefore, his claim is null and void.
It will not be denied that the land in question was within the territorial limits of the state of Virginia, until the separation of Kentucky placed it under the jurisdiction of the latter state. Virginia had, then, the right to dispose of it according to her policy or pleasure.
By the act of 1779 (1 Litt. 408) her whole unappropriated territory was thrown open for individual appropriation by treasury warrants, with these only exceptions: that 'no entry or location shall be admitted within the country and limits of the Cherokee Indians, or on the north-west side of the Ohio river, or on the lands reserved by act of Assembly for any particular nation or tribe of Indians, or on the lands granted by law to Richard Henderson and Co., or in that tract of country reserved by resolution of the General Assembly for the benefit of the troops serving in the present war, and bounded by the Green river, and south-east coast, from the head thereof to the Cumberland mountains, with said mountains to the Carolina line, with the Carolina line to the Cherokee or Tennessee river, with the said river to the Ohio river, and with the Ohio to the said Green river, until the further order of the General Assembly.'
This was the only restriction upon Clark's right to locate his warrants anywhere within the territorial limits of Virginia. His entries were made below the Tennessee river, and in the year 1780. They did not include any part of the excepted territories. Most clearly they did not interfere with the military reserve. It is true, that after Clark's entries at the November session, 1781, (1 Litt. 432,) the Virginia Legislature enlarged the military reserve, by adding to it the country below the Tennessee, including the land now in suit. But it will scarcely be contended that this act could affect, or was intended to affect, the previously acquired and vested rights of Clark; while it clearly shows that the legislature considered itself as having full power to dispose of this additional reserve; and that without this reservation the land would have been, and before it was, subject to individual appropriation. The only purpose of the reservation was to exempt it from such appropriation, to which it was then liable.
The decision in the case of the Superintending Officers vs. Clark, Hughes's Repts. 39, is a direct adjudication that the land was subject to appropriation by Clark's entries.
Neither in 1779, nor at any time since, has either the government of the United States, or Virginia, or 'Kentucky, ever recognised the land now in suit as embraced either by the limits of the Cherokee Indians, or within the limits of any reservation made by any act of Assembly, for any nation or tribe of Indians. At least, we know of no such recognition. Let the defendant show it. The treaties with the Cherokee Indians show that they were never considered as owning the country where this and lies. (See those treaties, 1 vol. Laws of the United States, 322, et seq.) On the contrary, the Indian title to the country below the Tennessee river was supposed to be extinguished by the treaty of 1818, made with the Chickasaw Indians, by Shelby and Jackson, as commissioners.
And in several acts of the Kentucky legislature, Stat. Law, 1040 and 915, the country below the Tennessee is recognised as land that was within the 'Chickasaw Indian boundary.' The land in question certainly does not lie within Henderson's grant, which is at the mouth of Green river.
Upon the whole, we conclude that Clark's claims, at the date of their location, in 1780, were not within any of the limits or territories exempted and excepted from appropriation by the act of 1779; and, consequently, that the land in question was legally subject to appropriation, and was legally appropriated by Clark's entries.
But suppose those entries, and survey or surveys, were made without sanction of law, and upon lands excepted or reserved from appropriation by them, was it not competent for Virginia and Kenucky, the successive sovereign owners of the country, to waive any objection to such irregularities? And when afterwards the title, however irregular in its inception and progress, was consummated, by patent from the state; is not that, at least, prima facie evidence of such waiver on the part of the state, and is it not conclusive upon all persons subsequently acquiring title from the state? To us it seems that all these questions must be answered in the affirmative.
There are numerous decisions by the Court of Appeals of Kentucky, that certificates for land, granted by commissioners or by county Courts, are conclusive upon the state, and upon all parties subsequently acquiring a claim from the state; and that such subsequent claimants cannot impeach or inquire into the prior certificates. These decisions seem to have a decided bearing upon the present case; and the principle of them must equally exclude the defendant from questioning or impeaching the patent under which the complainant claims. The decisions alluded to are so numerous and sell known that it would be idle parade to cite them: it is a well settled doctrine, too, that one claiming under an entry, &c. originating subsequent to a patent on the same land, cannot avail himself of any defect or irregularity in the entry or survey of the prior patentee. Ward and Kenton vs. Lee and Orr, 1 Bibb, 33; Fitche's devisees vs. Bullock, 1 Bibb, 229; and in Hardin's Reports, Greenup vs. Kenton, 15; Patterson vs. Bradford, 105; and Jasper vs. Quarles, 469, &c.
But if all these analogies, principles, and precedents should fail us, we contend that the legislative authority has sanctioned and made good the survey of Clark, whatever defect or objection previously existed in or to it, or the entry on which it was founded.
It will be seen, by the register's certificate, that the survey was registered 'in the register's office of Virginia,' at the time of, and before, the separation of Kentucky from that state. By the act of 1794, it was enacted by the legislature of Kentucky, 'that the register of this state shall receive and issue grants on all certificates of survey which were in the register's office of Virginia at the time the separation took place, and on which grants have not issued.' Stat. Law, 910.
Acting in the same spirit of sound policy and good faith towards Virginia claimants, this state, in the year 1811, enacted that all claims, founded on the laws of this commonwealth, which interfered with 'any survey or grant, surveyed or granted under or by virtue of any law of Virginia, &c., shall be void,' &c. Stat. Law, 915. See, also, the act of 1792, 1 Litt. 75. 159.
Clark's survey comes completely within the protection and ratification conferred by these statutes.
If a distinction be attempted between the claim of the defendant and claims on Virginia treasury warrants, on the ground that the latter were expressly confined to 'unappropriated land,' it is answered, first, that these words are mere expletives, used out of abundant caution, and that the construction must have been the same, if these words had not been used; second, that the ground of the distinction does not, in fact, exist; the act of 1825, sec. 2, p. 1054, Stat. Law, authorizing the receiver to expose to sale only the 'unappropriated sections,' &c. It is inferred, therefore, that it could not have been intended that purchases by private entries should have been made of any but 'unappropriated sections.' The whole country had been sectionized, and it was well known to, and recognised by the legislature that much of it had been appropriated; and it is but common respect to its justice to suppose that it designed this as an express and abundantly cautious saving of all individual rights and claims.
Upon the hearing of the cause in the Court below, the Court, both judges concurring, were of opinion that the complainant, Clark, had the legal title to the land in question, and was in the actual possession thereof at the commencement of this suit; and yet the Court refused to decree the defendant to relinquish his pretended claim, because of a division of opinion with the judges, as to the jurisdiction of the Court. One of the judges was of opinion that, although the case came completely within the provisions of the act of Assembly of Kentucky, giving jurisdiction to Courts of equity in such cases, still that the federal Court could not exercise that jurisdiction; that its jurisdiction was limited by the 'general principles' of the equity jurisdiction of the Courts of the United States; and that the case not being embraced by those general principles, the Court could not exercise a jurisdiction created by an act of Assembly of Kentucky. In consequence of this division of opinion, the complainant's bill was dismissed; and he has appealed to this Court, and will insist that the Circuit Court had jurisdiction of the case, and ought to have exercised it by decreeing in favour of the complainant, and that it erred in dismissing his bill. 7 Peters, 542.
Mr. Justice CATRON delivered the opinion of the Court.

## Notes

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