STEPHEN LINDSEY AND OTHERS, PLAINTIFFS IN ERROR
v.
THE LESSEE OF THOMAS B. MILLER, DEFENDANT IN ERROR.
Supreme Court of United States.
*668 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.
*672 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 *673 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 adventurers. 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 defendants' 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 *674 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 that act, in favour of persons who had served in the Virginia line on the continental establishment."
Several laws were subsequently passed in relation to this reservation, and to the rights of warrant holders; in all of which, a reference is made to warrants issued for services performed on the continental establishment. This was in conformity to the deed of cession; and, although not necessary, was deemed proper, in giving time, to locate warrants in this district, in order to prevent the semblance of right from being acquired by virtue of locations made on other warrants.
It was known that Virginia had issued other military warrants for services in her state line, which gave no right to the holder to make an entry in the above district.
In the act of the 2d of March 1807, to extend the time for locating military warrants in the reserved district, and for other purposes, it is provided, "that no locations within the above mentioned tract, shall, after the passing of that act, be made on tracts of land for which patents had been previously *675 issued, or which had been previously surveyed; and any patent obtained contrary to the provisions of that act, was declared to be null and void."
As by the deed of cession the fee to this district passed to the United States, the patents for lands entered and surveyed within it, necessarily emanated from the general government. It is therefore clear, that the circuit court did not err in rejecting, as evidence, the patent which was issued by Virginia for this land several years subsequent to the deed of cession. But the defendants below rely upon their survey, as being protected by the act of 1807. This is the main point in the case, and it becomes necessary fully to consider it.
The entry and survey of the defendants were made before the deed of cession, but it is not contended, that, at the time this location was made, the land within this district, under the laws of Virginia, was liable to be appropriated in satisfaction of warrants granted by the state for military services in the state line. The fact, therefore, of this location having been made, while the fee of this district remained in Virginia, cannot give it validity, as the entry was not made in pursuance of the laws of Virginia.
By the act of 1807, any patent is declared to be void that shall be issued on an entry of land which had been previously patented or surveyed. This language is general, and literally applies to all surveys which had been previously made, whether made with or without authority. Could congress have designed by this act to protect surveys which had been made without the semblance of authority. If an intruder, without a warrant, had marked boundaries in a survey, either large or small, would it be protected under the act. When the object and scope of the act are considered, and other laws which have been enacted on the same subject, and the deed of cession are referred to; it would seem that much difficulty cannot be felt in giving a correct construction to this provision.
In making the cession, Virginia only reserved the right of satisfying warrants issued for military services in the state line, on the continental establishment. Warrants of no other description, therefore, could give any right to the holder, to any land in this district. In all the acts subsequently passed, giving further time for the location of warrants in this reservation, *676 there is a reference to the kind of warrants which may be located. And in the act of 1807, the "officers and soldiers of the Virginia line on continental establishment, are named as entitled to land in the district."
No act of congress passed subsequent to the deed of cession, which enlarged the rights of Virginia to this district, beyond the terms of the cession. Longer time has repeatedly been given for locations, but no new rights have been created. It would seem, therefore, to follow, that when the act of 1807 was passed for the protection of surveys, congress could have designed to protect such surveys only as had been made in good faith. They could not have intended to sanction surveys made without the shadow of authority, or which is the same thing, under a void authority.
It is known to all who are conversant with land titles in this district, that the mode pursued in making entries and surveys under the Virginia land law, gave rise to the most ruinous litigations. The docket of this court contains abundant evidence of this fact. By the law of 1807, congress intended to lessen litigation.
It is essential to the validity of an entry, that it shall call for an object notorious at the time, and that the other calls shall have precision. A survey, unless carried into grant, cannot aid a defective entry against one made subsequently. The survey, to be good, must be made in pursuance to the entry.
To cure defects in entries and surveys was the design of the act of 1807. It was intended to sanction irregularities, which had occurred without fraud, in the pursuit of a valid title. In the passage of this act, congress could have had no reference, but to such titles as were embraced by the deed of cession.
The case of Miller and others v. Kerr and others, reported in 7 Wheaton, 1, is cited by the defendants' counsel. In this case the register of the land office of Virginia, had, by mistake, given a warrant for military services in the continental line, on a certificate authorising a warrant for services in the state line. An equity acquired under this warrant was set up against a legal title subsequently obtained; but the court sustained the legal title. They considered the register a ministerial officer, and that his official acts, as such, might be inquired *677 into. This entry was made subsequent to the deed of cession, and the court seemed to think if this territory had not been ceded, there would have been great force in the argument, that as the holder was entitled to the land for services rendered, and as, by the mistake of the officer, he had been prevented from locating the warrant in Kentucky, and as no provision existed by which his claim could be satisfied; if the entry made should not be sustained, that under such circumstances it should be held valid. The case was a hard one, but the court were clear, that by virtue of the warrant thus issued no right could be acquired in the Virginia reservation.
The case of Hoofnagle and others v. Anderson, 7 Wheat. 212, is strongly relied on as a case, if not directly in point, that has at least a strong bearing on the question under consideration. In that case the court decided, that a patent is a title from its date, and conclusive against all those whose rights did not commence previous to its emanation. The entry on which this patent was founded was made in the Virginia reservation, by virtue of a warrant which was in fact issued for services in the state line; but it was stated on its face to have been issued for services on the continental establishment.
This case would have been similar to the one under consideration, if the patent had not been issued; but the decision turned against the subsequent locator, on the ground that the patent appropriated the land.
The court say, that the "principle is well settled, that a patent is unassailable by any title commenced after its emanation." The case of Jackson v. Clark et al. 1 Peters, 628, it is contended, bears a close analogy to the one under examination. That was a case where the act of 1807 was decided to protect a survey, although made on a warrant which had been previously located and not withdrawn. But the court sustained the survey, on the ground that it was not a void act, though it might be irregular. That to the purchaser of the survey, there was no notice of irregularity, much less of fraud.
The warrant was valid, and upon its face authorised the entry. The entry had been regularly made on the books of the surveyor, and the survey had been executed by a regular officer; and the only objection to the validity of the proceedings was, that the warrant had been previously located. This *678 location, the court said, might be withdrawn, and that would remove all objections to the subsequent proceedings. And they intimate that the powers of a court of chancery were sufficient to have compelled the original locator to withdraw the first entry, or enjoin him from the use of it, so as to remove the objections to the second entry. Under all the circumstances of the case, they consider that the second survey was protected from subsequent entries by the act of 1807.
They say, "if it be conceded that this provision in the above act was not intended for the protection of surveys which were in themselves absolutely void, it must be admitted that it was intended to protect those which were defective, and which might be avoided for irregularity."
There can be no doubt that congress did intend to protect surveys which had been irregularly made, and it is equally clear that they did not design to sanction void surveys. A survey is void, unless made under the authority of a warrant; and it need not be stated again, that the warrant under which the survey of the defendants in the circuit court was made, gave no right to the holder to appropriate land north of the Ohio.
Neither the entry nor the survey is a legal appropriation of the land. The claimant is only vested with the equitable estate, until his entry and survey have been carried into grant.
This court decided, in the case of Taylor's Lessee v. Myers, 7 Wheat. that the act of 1807 did not protect a survey from which the entry had been withdrawn.
In the argument, it was insisted that the entry and survey having been made in the name of Richard C. Anderson, the principal surveyor, were void under the laws of Virginia: that by those laws he was prohibited from making an entry in his own name.
As there are other points in the cause on which the decision may rest, it is unnecessary to investigate this one farther than to observe, that, under other circumstances, it might be entitled to serious consideration.
This is a case of great hardship on the part of the defendants below; and regret is felt that the principles of law which are involved in the cause do not authorise a reversal of the judgment given by the circuit court.
*679 The judgment must be affirmed with costs, and the cause remanded for further proceedings.
Mr. Justice BALDWIN dissented, and gave an opinion in writing; which was not delivered to the reporter.
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 Ohio, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed 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 according to law and justice, and in conformity to the judgment of this court.