Statement of the case.

NISWANGER v. SAUNDERS.

1. The State of Virginia issued, in 1784, a warrant for a soldier of the Con tinental establishment, which was entered in her own borders south of the Ohio. The land having been surveyed, a patent issued; everything proceeding in ordinary form. But a part of the tract surveyed having been previously granted away by the State, never came into the soldier's possession or control, nor in any way benefited him-Held, in a case where the new entry and survey were free from objection on their face, that the warrants, which called for no specific tracts anywhere, were not so far "satisfied" or "merged" as that a new and effective entry and survey might not be afterwards made in another district open to the soldier, to wit, in the Virginia Military District in Ohio, and which would be protected against any subsequent location by the proviso of the act of March 2, 1807, providing that no location should be made on any tracts of the district which had been previously surveyed. 2. Where a survey of land, under the military rights referred to, is void for circumstances not appearing of record on its face, and which must be proved by extrinsic evidence from different sources, a second enterer is met by the statute, and cannot obtrude on the existing survey by a second location. Saunders v. Niswanger (11 Ohio State, 298), overruled.

SAUNDERS filed a bill in chancery, in the State District Court of Madison County, Ohio, to quiet the title to a tract of land in that commonwealth, in what is called the Virginia Military District, a region north and west of the Ohio, and which, by the act of cession of that territory to the United States and several acts of Congress, was reserved for the Virginia troops upon the Continental establishment of our Revolutionary war. The case was thus: In 1784, in the Book of Entries, kept by the proper officer in the State of Virginia, an entry, No. 70, was made in the name of David Ross & Co., on several military warrants, of one thousand acres of land or the Ohio River, in that part of Virginia then called the Green River Country, and now making Kentucky. The entry was surveyed, the survey returned and recorded; and on the 15th June, 1786, a patent for one thousand acres of land was issued by the Governor of Virginia to Ross accordingly; the warrants themselves having apparently been returned into the land office in Virginia. The warrants had described no specific tracts, but were addressed to the surveyor, authorizing him

Statement of the case.

"to survey and lay off, in one or more surveys," the quantity "set apart for officers and soldiers of the Commonwealth of Virginia."

It was afterwards ascertained that, in laying off and sur-veying this one thousand acres, a portion of the land, to wit, six hundred and forty acres of it, had been laid off within the bounds of a well-known body of lands that had been previously granted to Richard Henderson & Co.; and this being the older and better title, Ross lost, or rather never acquired so much of his promised land; that is to say, six hundred and forty acres. This fact being ascertained, a memorandum was subsequently made in the Book of Entries, opposite to entry No. 70,

"640 withdrawn, and entered in 197.”

In 1790, Congress passed an act by which the soldiers of the Virginia line, on the Continental establishment, were authorized to obtain titles, on warrants issued to them, in what is now the State of Ohio; that is to say, in that region northwest of the Ohio River, between the rivers Little Miami and Scioto; and, in 1810, an entry was made in the office of the principal surveyor of the Virginia Military District in Ohio of six hundred and forty acres (the exact amount of Ross's patent covered by Henderson's prior grant), upon the same warrants upon which the patent issued in Virginia. On this entry a survey was made in 1817, which was returned and recorded; the Surveyor-General of the Virginia Military District within the State of Ohio certifying that the survey was founded on such and such warrants, which he specified by number and warrantee name, and adding, "That said warrants were entered originally in a thousand acre entry, No. 70, in the State of Kentucky, &c., and patented to said David Ross, by the State of Virginia, on the 15th of June, 1786; that said survey No. 70, i. e., six hundred and forty acres of it, is withdrawn, by reason of its having been lost by interference with Henderson's grant, and entered and surveyed as above; that said warrants were never before satisfied; and that said patent on which this survey is founded is in my possession not satisfied." Thus things remained from 1816

Statement of the case.

till 1837, when a certain Samuel Saunders, the complainant below, entered a portion, to wit, four hundred and twenty eight acres of this same land, which had been surveyed to Ross; the entry being surveyed on the day it was made. On the 20th November, 1838, a patent was issued by the United States to this Saunders, complainant as above stated, and on the same day another patent to Niswanger, defendant below, in whom had become vested the entry and survey of Ross. This patent to Niswanger, following the surveyor's certificate already mentioned, stated the number of each one of the warrants; "the same warrants,"-it went on to recite"having been formerly located in the District of Kentucky, and patented by the Commonwealth of Virginia to the said David Ross, which has since been lost by interference with a prior claim, to wit, Henderson's grant, and the said warrants withdrawn and relocated in the Virginia Military District of Ohio, upon which the said survey is founded."

A principal defence relied on to the bill below, was that even admitting some irregularity here, in the entry and survey of Ross of 1810, &c., yet as the case was one of great equity, and as an entry and survey had actually been made, the land thus entered and surveyed for Ross was protected from any subsequent entry and survey by others, in virtue of the proviso of an act of Congress passed March 2d, 1807, that Saunders's entry was accordingly void. This proviso enacted, "that no locations within the above-mentioned tract [the tract in Ohio] shall, after the passage of this act, be made on tracts of land for which patents had previously issued, or which had been previously surveyed, and any patent which may nevertheless be obtained for land located, contrary to the provisions of this section, shall be considered as null and void.” The proviso originally for three years had been subsequently extended.

The case being taken from the court where it originated to the Supreme Court of Ohio, that court, in Saunders v. Nisvanger, following the reasoning and argument in a case

*

* 11 Ohio State, 298.

Statement of the case.

previously decided by it, Nisewanger v. Wallace,* held that the warrants on which the entry of 1810, in Ohio, was made had been "merged and satisfied" in the previous patent for the 1000 acres in Virginia, and that this being so, they were nullities. The act of the surveyor, the court thought, did not improve the matter. It was a case of want of power in the officer. His authority was limited to a particular subjectmatter. He could dispose of lands only upon specified evidence, to wit, a military warrant. Here he had done it on a 'patent." The return or renewal of a warrant once surrendered was within the power of the Virginia legislature alone. The surveyor had no power to return or to renew, however equitable a claim for such return or renewal might be. By whom or by what authority the memorandum in the Virginia Entry-book, "640 withdrawn, and entered in 197," was made, did not appear. It was not certified as the official act of any officer in Virginia. If made by the surveyor in Ohio, the question of his power was to be settled. Had the entry of 1810 and the subsequent survey been a case of "irregularity" only, or even of "invalidity," the act of Congress of 1807 might cure it; but it was the case of a proceeding wholly void, a proceeding not based on a subsisting warrant at all, and therefore past the healing power of the statute. The court accordingly decreed that all that was done on Ross's warrants in 1810 and afterwards was a nullity, and that the land should go to Saunders or his heirs. On this part of the decision, which held the act of Congress of 1807 no protection, error was taken to this court, under the 25th section of the Judiciary Act of 1789,† which provides that a final judgment or decree in any suit in the highest court of law or equity of a State, where is drawn in question the construction of any clause of a statute of the United States, and the decision is against the title, right, &c., specially set up or claimed by either 1 arty under such statute, may be re-examined, &c., in this court.

The question in this court was, therefore,-as one question

* 16 Ohio, 557.

† 1 Stat. at Large, 85.

Argument in support of the survey.

had been in the Supreme Court of Ohio-whether the entry of 1810 and the survey on it was or was not, under the facts of this case and the operation of the proviso of the act of 1807, to be treated as a nullity.

Mr. Stanberry, by brief, for the appellant: If this case were to be ruled by Ohio decisions and Ohio laws, we should have no standing in this court. But the case arises on a statute of the United States, and the decision below having been against the right set up under it, this court has final authority in the matter. The question rests on precedents here. In Jackson v. Clark,* an entry was set up by the defendants, on the land in controversy, made July 19, 1796. The plaintiff's attempted to overcome this entry, by showing that two prior entries had been made upon the same warrants, both of which had been patented. There was no evidence of any withdrawal of the two prior entries, or of any surrender or cancellation of the patents. So that the case presented the question of a re-entry on a satisfied warrant, satisfied by prior entries carried into grant without withdrawal or cancellation. The court sanctions the last entry, and holds, that however irregular or unauthorized it may have been, yet the land covered by it was effectually withdrawn from entry by any other locator. Our entry of 1810 stands upon a better foundation than the entry there held valid, for it appears that the 640 acres were "withdrawn" from the Kentucky entry; and that the 640 acres so withdrawn had been lost by interference with a prior claim.

The court below decided the case against us, on the ground that our entry of 1810 and the subsequent survey were nullities, and therefore not within the savings of the proviso. They are nullities, say the court, because warrants under which they were made, were satisfied by the original entry of 1784, and merged in the patent granted on that entry. Now, the first answer to this is, that to the extent of the 640 acres in Henderson's Grant, there was no satisfaction, and

* 1 Peters, 628.