# Anderson v. Clark

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United States Supreme Court
26 U.S. 628
Anderson v. Clark
ERROR to the Circuit Court of the United States, for the district of Ohio.
The plaintiff brought an action of ejectment, in the Circuit Court of Ohio, to recover a tract of land, situate in Adams county, in the Virginia military district, and state of Ohio. On the trial of the cause, a bill of exceptions was tendered by the plaintiff, to the opinion of the Court upon the admissibility of certain testimony, which was offered by the plaintiff, and which was rejected by the Court.
The facts of the case, with the matters which were the subject of the plaintiff's exceptions, appear in the opinion of the Court.
The case was argued by Mr. Leonard and Mr. Hammond, for the plaintiff in error, and by Mr. Creighton and Mr. Ewing, for the defendants.
The argument of the counsel of the plaintiff in error, was principally upon these points:--
1. Congress could not rightfully limit the time within which military warrants should be located and surveyed.
2. The Act of Congress, prohibiting locations on lands already surveyed, and declaring any patent which should be issued on such survey void, does not comprehend the survey in this case.
Mr. Leonard and Mr. Hammond, insisted: the proviso of the Act of 2d March 1807, was simply designed to protect voidable surveys, not those absolutely void. Before the statute, surveys made in defective locations, or not executed in conformity, were voidable, but might be carried into grant, and the grants issued thereon, were without the aid of the Act, appropriations of the land.
There were the principal evils in the country, demanding legislative interference, and led to the enactment of the statute. And this places all voidable surveys, which might be patented, on the same footing as if they were patented, so far as to prevent subsequent appropriation, but does not cover with its protection, surveys on which grants can never issue.
The authority of the surveyor to make a survey, is derived solely from the warrant; and surveys executed without warrants, are void. This is apparent from all the laws of Virginia relative to the subject, and from the common practice and universal understanding of those laws, and the decisions of the Courts. By the Act of 9th June 1794, now in force, no patent can issue on the defendant's survey.
On the construction of defendants, the proviso will operate as a virtual repeal of that Act, and give such validity to these surveys, as to remove the necessity of obtaining grants; or otherwise, by preventing subsequent locations, vest the land in the United States. The latter construction would be an infringement of the compact between Virginia and the United States, and a refusal to execute it in good faith.
If Congress can limit the time within which locations may be made, they are bound to execute the power with the utmost honour, and not apply a limitation to one part of the district, without extending it to all. Much less are they authorized, under colour of limiting the time, to appropriate the land to their own use. None will presume such ill faith in Congress. The Virginia troops acquired a right, and at the price of blood, to compensation in land, by the express stipulation of that state. Virginia did not cede the north-west territory to the Union, until the United States engaged to make good the compensation out of the reservation. The faith of two sovereigns, has pledged the military district to these troops.
The whole course of the legislation of Congress, evinces that it was not their design to authorize locations, or surveys, without military warrants, or for more land than is embraced in them. It cannot be supposed, that it was the design of the proviso to protect surveys wholly unauthorized, on which grants can never issue; but to protect surveys that are irregular, defective, voidable, and which might be patented. The Act of Virginia protecting old military surveys, is as strongly expressed as the proviso, but has always been held to apply only to those founded upon warrants.
A sale of land by title bond, and location afterwards made, does not vest the purchaser with title in the warrant or entry. The purchaser reposes confidence in the vendor, and if this confidence is misplaced, the purchaser, and not the government, must sustain the loss. The purchaser can look to his bond for indemnity. Massie was then the proprietor, and had the right to elect either of these locations, and by recording a survey of the earlier, he bound himself, and abandoned the latter. The taking out the warrant, and the plots of survey, as on a satisfied warrant, is a solemn act of abandonment. The recorded survey, and not the survey executed on the ground, is protected by the proviso. The recording a survey, after the satisfied warrant with the plots of survey are taken from the office, is a void act. A new entry cannot be held a withdrawal of one prior; or, if so, it cannot be held a withdrawal of a survey recorded when the plot is taken from the office, and especially when not returned, and thus a survey of 553 acres, made on only 403 acres of located warrant, the residue of the 553 acres being surveyed, recorded, the plots taken out of the office, and not returned, is not shielded by the proviso.
He cited, among other cases, Taylor's Lessee vs. Myers, 7 Wheat. 23. Kerr vs. Watts, 6 Wheat. 550, Mathie vs. Potts, 6 Cranch, Taylor and another vs. Brown, 5 Cranch, Wilson vs. Mason, 1 Cranch, Hickman vs. Hoffman, and Estill's Heirs vs. Haret's Heirs, Hardin's Reports, p. 81, 82, of Sneid's printed Kentucky Decisions. Johnson vs. Buffington, 2 Wash. Rep., Holt's Heirs vs. Hemphile's Heirs, 3 vol. Ohio Reports, and referred to Swan's Collection of Ohio Land Laws, under the head of Virginia military lands.
Mr. Creighton, and Mr. Ewing, for the defendants in error. contended.--
In the case presented by the record and bill of exceptions, the counsel for the defendants insist, that they are protected by the proviso of the Act of Congress of the 2d March 1807, entitled an Act to extend the time for locating Virginia military warrants, for returning surveys, &c.; and subsequent Acts of Congress on the same subject, containing the same proviso; and that the patent obtained by the plaintiff is 'null and void.'
The United States, under the deed of cession of 1784, from Virginia, held the Virginia military district in trust, for the Virginia claimants. The surplus, subject to sale, as other lands belonging to the United States.
In the execution of these trusts, the Congress of the United States, on the 23d of March 1804, passed an Act limiting locations in the Virginia military district to three years, and five years to execute and return surveys.
The holders of warrants asked an extension of the time. When the Act of the 2d March 1807 was passed, extending the period for making locations and returning surveys, the proviso on which the defendants rely, was introduced, and has been retained in all the subsequent Acts of Congress on that subject.
The power of Congress to limit the period for making locations and surveys in this district, (exercised since the year 1804,) heretofore has never been questioned. In the exercise of an undoubted power, the object and policy of the national legislature in the introduction of the proviso cannot be mistaken, in excluding from location 'land for which patents had previously been issued, or which had been previously surveyed.' The survey claimed by the defendants, is a subsisting survey, which has never been abandoned or withdrawn, and comes expressly within the doctrine laid down by the Court in the case of Taylor's lessee vs. Myers, 7 Wheat. 23. 'The proviso in the Act of March 2d 1807, which annuls all locations made on lands previously surveyed, applies to subsisting surveys-to those in which an interest is claimed.' The Act places surveys on the same footing with patents, for all the purposes of defence in trials at law. A patent is a title from its date, and conclusive against all those whose rights did not commence previous to its emanation. Hoofnagle and others vs. Anderson, 7 Wheat. 212. In the action of ejectment in Ohio, the parties are never permitted to go behind the patent. The same rule applies under this Act to surveys.
The class of cases referred to, and relied on by the plaintiff's counsel, are cases in chancery, where it is the appropriate duty of the Court to go behind the patent or survey.
Whether a patent can be obtained by the defendants on their survey, will be a question between them and the government, whenever the government shall make provision to inquire into the claim. It can never be a question between the plaintiff and defendants. It is sufficient for the defendants in this controversy, that they have a subsisting survey, claimed by them, and that the patent obtained by the plaintiff has been procured in contravention of the positive provisions of the Act, and is 'null and void.'
If it were admissible to go into the inquiry desired by the plaintiff, it will be seen, that when Nathaniel Massie sold the land in question to the defendants, and at the time he made the entry and survey, he owned 403 acres, part of Leven Powell's warrant, and 150 acres, part of Thomas Goodwin's warrant, making 553 acres, the precise quantity in the entry and survey.
If the objection to the defendants' title exists, as suggested by the plaintiff's counsel, the facts disclosed in the evidence offered by him, present a case where a Court of Equity would give to the defendants ample relief.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.--

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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