# McArthur's Heiress v. Dun's Heirs

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United States Supreme Court
48 U.S. 262
McArthur's Heiress v. Dun's Heirs
THIS case came up from the Circuit Court of the United States for the District of Ohio, on a certificate of division in opinion between the judges thereof.
It was before this court at January term, 1842, and was then remanded to the Circuit Court, upon the ground that a material error had been committed by the clerk in stating the point intended to be certified. It now came back with the error corrected.
It was, originally, a bill filed on the equity side of the Circuit Court by Dun against McArthur, in which the same matters of controversy were involved as in the present case. Dun obtained a decree against McArthur in 1836.
In 1838, McArthur filed the present bill of review. The following table presents a view of their conflicting titles to the land in question:--
McArthur's Title.
Dun's Title.
1822, Nov. 23. Entry in the
name of Means, who
was dead.
1823, March 1. Act of
Congress passed.
1823, March 18. Survey.
1824, Dec. 10. Entry by Galloway.
1824, Dec. 15. Survey.
1825, Jan. 3. Patent.
1825, April 4. Patent.
All the facts in the case are stated in the certificate of division in opinion, which was as follows, viz.:--
'This cause having been remanded from the Supreme Court of the United States to this court, for a further order touching the point upon which the opinions of the judges of this court upon the hearing thereof were opposed, in compliance with said mandate of said Supreme Court, the said point of disagreement of said judges is now ordered to be restated more specially and at large. The said point of disagreement arose out of the following facts, stated and set forth in the original bill of said Walter Dun, and admitted to be true by the demurrer of said Duncan McArthur thereto, who was the respondent to said original bill, viz.: That said McArthur, on the 3d of January, A. D. 1825, obtained a patent for the tract of land in controversy, which is situate in the Virginia military reservation, in the State of Ohio, on an entry made on a Virginia military land-warrant in the name of Robert Means, assignee, on the 23d of November, A. D. 1822, followed by a survey of said entry made in the name of the said Robert Means, assignee, on the 18th of March, A. D. 1823; which said Robert Means before said entry, and as early as the year A. D. 1808, had departed this life. And that, on the 4th day of April, 1825, another patent for the same tract of land was issued to one James Galloway, on an entry thereof made in the name of said Galloway, on the 10th of December, A. D. 1824, on another Virginia military land-warrant, and which was duly surveyed in his (said Galloway's) name, on the 15th of the same month of December, A. D. 1824, and which tract of land was subsequently conveyed by said Galloway to said Walter Dun. Upon which said state of facts, touching the titles of the said parties to said tract of land, this point was raised by the counsel for the complainant in said bill of review, upon the hearing and argument thereof, viz.:-Whether the said location and survey of said tract of land in the name of said Galloway, and the patent issued to him for the same, are not null and void, as being made and done in contravention of the proviso to the second section of the act of Congress of the 1st of March, A. D. 1823, entitled 'An act extending the time for locating Virginia military land-warrants, and returning surveys thereon to the General Land Office.'
'And upon the point so as aforesaid raised by the counsel for the complainants in review, the opinions of the judges of this court being opposed, the said point of disagreement is, on motion of said complainants' counsel, stated as above, under the direction of said judges, and is hereby ordered to be certified to the Supreme Court of the United States at its next session to be hereafter holden, for its final decision upon said point of disagreement.'The proviso referred to was in these words (3 Stat. at Large, 773):-'Provided, that no locations as aforesaid, in virtue of this or the preceding section of this act, shall be made on tracts of lands for which patents had previously been issued, or which had been previously surveyed; and any patent which may, nevertheless, be obtained for land located contrary to the provisions of this act, shall be considered null and void.'
The cause was argued by Mr. Vinton, on behalf of the complainants, and Mr. Ewing and Mr. Thurman, for Dun's heirs.
Mr. Vinton, for the complainants, reviewed and commented upon the following cases.
12 Peters, 297, and also referred to the act of 20th May, 1836 (5 Stat. at Large, 31).
7 Wheaton, 23; 1 Peters, 638; 4 Peters, 332; 6 Peters, 261, 666; 7 Ohio Rep. 177, which last case, he contended, misconstrued the judgment of this court in 6 Peters.
The brief filed by Mr. Thurman, and enlarged upon by Mr. Ewing, was as follows.
I. An entry in the name of a dead man is, on general principles, void. Galt v. Galloway, 4 Peters, 345; McDonald's Heirs v. Smalley, 6 Peters, 261; Lessee of Wallace v. Saunders, 7 Ohio Rep. (Part 1), 173.
II. Being void, it is not protected by the proviso in question. Lindsey v. Miller's Lessee, 6 Peters, 666; Lessee of Wallace v. Saunders, above cited.
III. There is no difference, in this respect, between a survey in the name of a dead man made after, and one made before, the passage of the act of 1807. The terms of the proviso apply to the one as much as to the other. And no reason can be given why the proviso should protect a survey made after its enactment, and not protect one made prior thereto, and to the land covered by which no right of a third party had intervened. It protects neither.
IV. Galloway v. Finley, 12 Peters, 264, is not, I respectfully submit, decisive of the present case. Because,--
1. The point now under consideration did not necessarily arise in that case. The court held, that Galloway could not, while standing in the relation of a purchaser, be permitted to avail himself of the defect he relied on in his vendors' title, to defeat his agreement to purchase. Whether he could do so was the main and only necessary question in that case.
2. The entry in that case was made on patented lands. In this case, it was on lands not patented. The difference is material; for the court, in deciding that case, said:-'It is difficult to conceive how an irregular patent could exist, unless it passed no title. We will not perplex the decision with supposed cases of irregular surveys, but examine the act of Congress, and ascertain its effect as regards the grant in the name of Charles Bradford.' (p. 298.)
And again:-'Congress had the power, in 1807, to withhold from location any portion of the military lands; and having done so in regard to that previously patented in the name of Charles Bradford, the complainant, Galloway, had no right to enter the same.' (p. 299.)
It would seem, from these extracts, that the court did not intend that its decision should extend beyond what was required by the facts of the case then under consideration, and that, consequently, it is not decided that a void unpatented survey is protected by the act of 1807.
So, in Hoofnagle v. Anderson, 7 Wheat. 212, (S.C.., 5 Cond. R. 271,) a broad distinction was made between patented and unpatented surveys. A patent for a survey made on a 'State line' warrant, was held to appropriate the land. The survey, before patent issued, was a nullity, and the land was subject to entry. Miller v. Kerr, 7 Wheat. 1; S.C.., 5 Cond. R. 202; Lindsey v. Miller, and Galloway v. Finley, above cited.
3. The court distinguish the case of Galloway v. Finley from the case of Lindsey v. Miller by the fact, that the survey in the former case was on a proper warrant, and in the latter on a State line warrant; wherefore there was an equity in the former that did not exist in the latter case.
But in Hoofnagle v. Anderson, the court seemed to think there was very little difference in the equities. Both were equities of which a court could not take cognizance, and both claims were of an equally meritorious character.
The court (in deciding that the patent for the survey made on the State line warrant appropriated the land, and prevented its subsequent location) said:-'The equity of the one cannot be so inferior to that of the other, as to justify the court in considering the patent of the one as an absolute nullity in favor of the other, who has attempted to appropriate the same land after such patent had been issued.' 5 Cond. R. 273.
4. The court, in Galloway v. Finley, say:-'Congress had the power, in 1807, to withhold from location any portion of the military lands.'
But ought it to be supposed that Congress intended to withhold a portion to which no person had acquired any title?
V. The case under consideration is not affected by the act of May 20th, 1836, entitled, 'An act to give effect to patents for public lands issued in the names of deceased persons.' (5 Peters's Laws, 31.) Because,--
1. It could not have been the intention of Congress, in passing that act, to interfere with the rights of third persons.
2. If such were the intention, the act is, to that extent, void; Congress having no power to give the lands of A to B, without consideration and against the will of A.
3. The point certified does not include the question, whether the rights of the parties are affected by the act of 1836, and consequently that question cannot be considered in this court. Wayman v. Southard, 10 Wheat. 1; S.C.., 5 Cond. R. 1.
If the above propositions are sound, it follows that the judgment of the court must be for Dun's heirs, the entry and survey in the name of Means (under which the complainants claim) having both been made after his death.
Mr. Justice DANIEL 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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