38 Ky. 15 | Ky. Ct. App. | 1839
delivered the opinion of the Court.
This appeal brings up for revision a judgment in ejectment, obtained, by William Clark against James Rollins and John Wilson, for eviction from a tract of land west of the Tennessee river, in this State, and which was conveyed to the said William in the year 1803, by General George Rogers Clark, to whom thirty six thousand nine hundred and sixty two acres, lying on the rivers Ohio and Tennessee,had been granted, by this Commonwealth, in the year 1795, in virtue of a certificate of survey, made June the 7th, 1784, on an entry made May the 18th, 1780, on treasury warrants issued by Virginia.
Though the appellants exhibited no title, they resisted the recovery in the General Court, on two grounds:— First — that the evidence was insufficient to prove that the patent to George Rogers Clark, and his conveyance to the appellee, included the land sued for; and, second — that the patent is void, because, as urged in that Court, and zealously reiterated in this, no land west of the Tennessee was subject to appropriation by a treasury warrant, at the date of either the entry or survey of G. R. Clark, and that the Register had no authority to issue the grant on a certificate of the survey of a location upon land not subject by any law to appropriation by Treasury warrant.
These two propositions present the only points to be considered by this Court, on the record before it.
First. Although the appellee’s deed embraces much land not included in the patent for thirty six thousand
But the deed, though purporting to convey the legal title to seventy three thousand nine hundred and sixty two acres, excepts from warranty “that part deeded to Levi Hollingsworth and Harry Innis $-c.” And the question here presented, is whether this exception imports, necessarily and as a matter of law, that George Rogers Clark had made a prior conveyance to Innis and others, of a part of the land thus after-wards conveyed by him to the appellee; and also, that this first conveyance was valid and subsisting at the date of the deed to the appellee; for if all this be the necessary deduction of law from the exception as quoted, then, as the deed to the appellee would, upon that hypothesis, show that he had not acquired the legal title to all the land embraced by his deed, it was incumbent on him to prove that the conveyance to Innis and others, does not include the land in controversy in this suit.
But it is our opinion that “the land deeded” does not, as a matter of law, import either that George Rogers Clark had made the deed, or that he did not pass to the appellee a perfect legal title to all the land embraced by the boundary of the conveyance of 1803.
And therefore the Circuit Judge did not err in refusing to nonsuit the appellee, upon the ground of that exception a^0ne-
Nor can the verdict be disturbed for any alleged defect Pro°f; because the record does not purport to ex-Jhibit all the evidence heard by the iury.
„ 7 , Second. JLhree questions are involved m the second P1’0?03^011: — 1- Was the land west of the Tennessee subject to appropriation by treasury warrants, in May, 1780? 2. Even if it was then so appropriable, was the subsequent survey of 1784 illegal and void? And, 3. If either the entrv or the survey was void, should the patent, issued thereon m 1795, be also deemed void?
If, at the date of the location, there was no law author
The first and second of the three" questions last suggested, will be considered together, as one comprehensive proposition, a correct solution of which will depend on the legislative acts.of. Virginia prior to.the separation of Kentucky, and upon local history and Indian treaties.
The memorable statute of 1779, enacted by 'Virginia, for raising revenue, providing for revolutionary officers and soldiers, and encouraging emigration to this western world, authorized, among other things, the appropriation by treasury warrants, of all the vácant lands within the chartered limits of that Commonwealth, under the following restriction, to wit: “no entry or location of land “ shall be admitted within the country and limits of the 46 Cherokee Indians, or on the north-west side.of the Ohio “river, or on the lands.reserved by ac,t of assembly for “any particular nation or tribe of Indians, or on the “ lands granted bylaw to Richard Henderson and company, or in that tract of country reserved by resolution” (of 1778) “of the General Assembly for-the benefit of “ the troops serving in the present war, and bounded by “ the Green river, and south-east course from the head “ thereof to the Cumberland mountains, with -said moun- “ tains to the Carolina line, with the Carolina line to th.e “ 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;”
The district thus reserved for military appropriation, having been ascertained by the running of Walker’s line, in 1780, to be more'circumscribed than it had been supposed to be at the date of the act, of 177.9, the Legislature of Virginia, therefore, made the following enactment, in the year 1781: to wit. “that all that tract of landin-
Having, by an act of 1781, prescribed a mode of ap-' propriating land for military services, which might lead to unjust discriminations, to the prejudice of such officers' and soldiers as might not be as fortunate in their destiny as some others — the Legislature passed an act, in 1782, declaring that, “ no surveyor shall be permitted to receive “any location upon any' warrant for lands within the “ country reserved for the officers and soldiers, until the “ apportionment and draught for the same as directed by “ the act (1781) entitled an act to adjust and regulate the “ pay and accounts of the officers and soldiers of the Vir“ginia line on continental establishment, and also of the “ officers, soldiers, sailors, and marines, in service of this “ State (Virginia) and for other purposes.”
So far as legislative acts can affect the point we are considering, the foregoing extracts furnish all that is essential in this case. . And these enactments authorize the conclusion,- first — that, if Clark's location was authorized by the act of 1779, the survey, in 1784, of that location, was neither prohibited by the act of 1782, nor rendered void by that of 1781, supra; and, second — that as the land on which the entry was made, was within the limits of Virginia,.his location, in 1780, was authorized by the act of 1779, unless the territory west of the Tennessee, was embraced by the exception of “the Cherokee country," or that of “ the lands reserved by act of as“sembly for any particular nation or tribe of Indians;” for that territory is obviously not touched, either by the exception of Henderson’s grant near the mouth of Green river, or by the reservation of the military district south of .Green river and east of the Tennessee river, as made by the resolution of 1778, and recognized and excepted from appropriation, under treasury warrants, by the act of 1779:
Upon the first of these questions, as just stated, we cannot doubt. The act of-1782 did not prohibit surveys upon lilocations>'> made prior to the date of the act. A location is well adjudged, and has ever been understood to be, an appropriation of land by only making an entry on the record of the proper surveyor, containing a characteristic description of the land, for the purpose of giving locality and identity to a floating right to select and appropriate a prescribed number of acres out of any vacant' land made.subject to such appropriation. And such a location alone, when made according to law, vests an inchoate legal right. The .only object of a subsequent survey is to afford visible and permanent evidence, on the land itself, of the extent and boundary of the tract} appropriated by previous entry or location,.' And a patent only confirms the location and passes a perfect legal title. The act of 1782 prohibited, or rather suspended, future “ locations” only. Clark’s location, made in 1780, was therefore not affected by thatenactraent.
Nor was it. affected by the act of 1781, setting apart the territory west of the Tennessee for appropriation by the officers and soldiers. That enactment did not, either divest Virginia of the legal title .to the land reserved, or annul any prior vested right. ' .The only object of it was to assure the officers and soldiers that good land, sufficient in quantity to satisfy all of them, should be reserved for appropriation by 'them, whenever they might be prepared to locate their respective, warrants. And this interpretation, — which is the only one we consider allowable — is fortified by the compact between Virginia and Kentucky when- the latter was about to become a separate State.
The tenth article of that fundamental agreement expressly, conceded to Kentucky the absolute .property in all unlocated lands, within its jurisdictional limits, to be unaffected, after May, 1792, by the Virginia reservations for the benefit of the officers and soldiers — many of whom, entitled to lands in the reserved districts, had then made no. locations any where, and very few of whom had made, or been suffered to make, locations west of the Tennessee.
The substituting act.ofi 1781 was also entirely prospective. It operated only as a reservation, of the land west of the Tennesseé, from future appropriations by treasury warrants; and, as already-suggested, a valid location previously-made,, was an appropriation which vested an acknowledged right-to a defined tract.
The act of 1781 does not import a retroactive object or operation as to any such prior appropriation. To give such an enactment such a retrospective interpretation, would be unreasonable and unjust. If the fact had been known, that locations on treasury warrants, had been made’ west of the Tennessee, and the Legislature had intended to invalidate them, that purpose would have been expressed:, and if the Legislature did not know that such locations had been made, there could have beén no-motive for intending that the reservation made by the act of.1781, should have any other than the prospective effect alone imported by the enactment itself. That act reserved only vacant land. It neither affected, nor was intended tó affect, any private right — if any such there Was — which had been previously acquired for a valuable consideration, and was then subsisting under the act of 1779. This conclusion, if it need any extraneous support, is'fortified by the express authority of the Court of Appeals of Virginia.
In a case adjourned from the Supreme Court of the then District of Kentucky, on a caveat, issued in 1786, at the instance of the superintendents of the officers and soldiers, to prevent the emanation of a grant to George Rogers Clark, for the land located by him, in 1780, west of the Tennessee, thé Court of Appeals of Virginia decided, in November, 1791, that the act of 1781, supra, operated only as a prospective reservation, and did not destroy, or even impair, any right previously ’ vested in Clark in consequence of his locations.
And the same Court decided, in the same case, that whether Clark’s locations in 1780 were valid or void, depended altogether on a question of fact, and that was— whether the territory west of the Tennessee was embraced by any of the exceptions herein before quoted from the act of 1779. And therefore, as it was, in the opinion of that Court, incumbent on the plaintiffs in the caveat to show that this land was excepted from appropriation under treasury warrants authorized by the general enactment of 1779; and as there was in that case, according to the judgment of that Court, no sufficient proof of that assumed fact, the caveat was dismissed. See the case, as reported in Hughes, page 39.
We can perceive no ground, therefore, for the assumption that Clark’s survey of 1784 was void or illegal.
Nor can we decide that, at the date of Clark’s entry, the land west of the Tennessee was not subject to such appropriation by the authority of the act of 1779.
And upon this point, we might be content to repose on the decision of the Supreme Court of Virginia, as reported in Hughes; for we presume that Court possessed all the means which are afforded to us for ascertaining the extrinsic facts which should be required to show whether the land west of the Tennessee was embraced by either of the two exceptions, one of which must include it, if it was not subject to appropriation by treasury warrants, under the act of 1779.
But as the question is important, and the decision of one Court upon mere matters of fact, is not authoritative in another, in a different case, even on the same facts, we will decide for ourselves without regard to any previous adjudication elsewhere.
Upon the question we are now considering, we are left without any other information than such as we may derive from our judicial knowledge: first — of the legislation and policy of Virginia, whilst colonial and when independent, concerning the Indian tribes inhabiting lands and asserting usufructuary rights within the limits of that State, and antecedently to the separation of Kentucky; secondly — of the history of the Cherokee and Chickasaw tribes, and of treaties made with them by Virginia, and
And our knowledge respecting those general facts is not such as will, in our judgment, authorize the conclusion, either that, at the date of the act of 1779, “the Cherokee country,” excepted by it from treasury warrant appropriation, embraced, or was understood as embracing, any part of the territpiy in.-that part pf the" then chartered limits of Virginia, which is bounded on the north by the Tennessee river; or that this territory had ever been “reserved” for the Chickasaws, or for any other “particular tribe of Indians,” by any “act of assembly,” previously passed by Virginia.
Neither recorded nor traditional history enables us to determine, that the Cherokees were ever entitled to, or ever even claimed, any land south or west of the Tennessee river, and near thereto, lower down than a line crossing it but a few miles below the mouth of Holston river; and, on the contrary, we have reason to infer that this tribe . did not, as late as thé year 1779, if ever before, assert any claim to land on or near the Tennessee, west of the line just described.
By the treaty negotiated, in the' year 1777, at the Long Island of Holston, between the Cherokee Chiefs and William .Christie, William Preston and Evan Shelby, commissioners from Virginia, and Waitstill Jhery, Robert Lanier, Joseph Winston and William Sharp, commissioners of Jforth' Carolina, the eastern boundary , of the Cherokee country was fixed at a point on the' Ohio river, considerably above the mouth of the Kentucky, thence nearly a direct course to Cumberland Gap; thence, nearly the same course to- the mountain, six miles south of Nolichuckey; and the Cumberland river, from its mouth to a point above Nashville, and a line nearly south from that point, and crossing the Tennessee not far below the mouth of Holston, seems to have been another boundary of “the Cherokee country.”
At the treaty negotiated with the same tribe, in November, 1785, at Hopewell on the Keowee, Tassel and other “ head men” of that tribe disavowed any preten
Now, it appears that the Cherokees disclaimed any exclusive right to’ any land south of the Cumberland^ river, below a point forty miles above Nashville, and acknowledged that they had never pretended to have a claim to the land west of the Tennessee.
We do not, therefore, feel authorized to presume that, in reserving “the Cherokee country,” by the act of 1779, the Legislature embraced or intended to embrace, that portion of the territory of Virginia which lies west of the Tennessee river, Besides, the fact that the Tennessee was " made one of the boundaries of the military reser
Nor do w;efeel authorized to infer,-that the exception in the act of 1779, of “lands reserved" by act of assembly for any particular nation or tribe of Indians,” was understood as embracing any of the lands west of the Tennessee.
It had been the invariable doctrine of Virginia, as well as that of the of the other American Colonies, that savage tribes of Indians, within the colonial jurisdiction, were in a state of quasi pupilage to the Anglo-American sovereign, who was entitled to a fee simple in the soil, and to a preemptive fight to purchase the aboriginal titles, which wer.e not-admitted to be ,more than mere usufructuary rights. But .to conciliate the good will of the Indians, and secure peace and justice, Virginia, like the other colonies, always interdicted intrusions by white men on lands occupied or claimed by any savage tribe within its borders, and wpuld never recognize the validity of any purchase of land made by a citizen from an Indian. And for effectuating that policy, various acts were passed by the Legislative authority, for securing certain-Indian tribes in their claims and possessions within the limits of Virginia. But wé have neither seen nor heard of any such act, in-favor'of the Chickasaws, for land west of the Tennessee, or elsewhere.
We know not any fact which would authorize a presumption that, as early as 1779, the Legislature of Virginia was acquainted with the boundary of the Chickasaw lands, or had any reason to apprehend that it included any territory within the limits of Virginia. In the
By a treaty concluded between the confederation and the Chickasaws at Hopewell, in January, 1786, the Tennessee river, from its mouth up to a point above the crossing of the now established southern boundary of Kentucky, was recognized as the northern boundary of that tribe of Indians. But whether Virginia had previously been apprised of the extent and character of the Chickasaw claim, or had admitted its validity, has not been made to appear. In the year 1784, the superintendents of the military surveys west of the Tennessee, being obstructed in the execution of their trust by some of the Chickasaw Indians, and apprehending forcible opposition to the further prosecution of the surveying, appealed to Virginia for support; and thereupon, the Legislature of that State, on the recommendation of its Governor, and, for the purpose of avoiding a savage border war, suspended the surveys; but did not, as it did for all other places, prescribe any limitation to the time of making surveys in that district of country; nor was any other territory substituted for the officers and soldiers. These facts conduce rather to the conclusion that, even in the years 1784-5, Virginia did not recognize the validity of the Chickasaw claim to any of the lands dedicated by the act of 1781, to the use of the officers and soldiers.
But the single fact that, in 1781, the Legislature reserved this territory from appropriation by treasury warrants, and set it apart for the officers and soldiers, tends persuasively to show that, at that time, notwithstanding the information derived from General Clark, in the autumn of 1780, Virginia did not admit or intend to
The only reason why the military reservation, made by the resolution of 1778, and confirmed by the act of 1779, was not, in the first instance, extended beyond the Tennessee river, may, as we presume, be found in the fact, that the southern boundary line of Virginia had not then been either established or surveyed; and whether it would strike the river Mississippi, or how far below the mouth of the Ohio, was a question undetermined and doubtful. Possibly another reason may have had influence; that is, some uncertainty and doubt as to the precise limits of “ the Chei-okee country”- — which was reserved by the act of 1779. But nevertheless, land not actually included within that country, whatever was in its true boundary, was not embraced by the reservation.
But after Doctor Walker had run a line on what he supposed to be the charter latitude, and, by extending it, had reached the Mississippi, the Legislature of Virginia, not doubting that the extensive territory between the Tennessee and Walker’s line to the Mississippi, was the property of that State, and not knowing or believing that it was encumbered with any Indian title hitherto protected by any statutory reservation, or any Indian claim which would ever be seriously asserted, did not hesitate to subject it, at once, to appropriation by the officers and soldiers, who were among the last of Virginians whom the councils of that State would have voluntarily subjected to the vexation and peril of a conflict with savage claimants of the same soil.
We, thei’efore, come to the conclusion, that it would be rather unreasonable to presume that the Legislature excepted, or intended to except, from the general operation of the act of 1779, any land which might be ascer
Wherefore, we are of the opinion that the entry of George Rogers Clark, in May, 1780, was authorized by law, and that his survey of 1784, was legal. And consequently, his patent of 1795, vested in him the legal title, subject only to the Chickasaw title to occupancy, as recognized by the treaty of 1786, and guarantied by the federal constitution; and the extinguishment of that title by the treaty of 1818 — inuring, as it did, to his benefit, and that of his alienee — the legal title of the latter seems, on its face, to be perfect.
Third. But if the facts we have considered, or any other facts not now appearing to us, should be sufficient to show that the territory west of the Tennessee was not subject to appropriation in the year 1780, and that the entry of George Rogers Clark was therefore unauthorized and void — -'still we should be of the opinion that his patent should not be deemed also void.
At the date of that grant, Kentucky had undoubted power to dispose of the title to all the land between the Tennessee river and the southern boundary of the State. And therefore, had the Legislature of this State specially instructed the Register to issue a patent to Clark, upon his survey of 1784, or had it, by special act of Assembly, granted the land to him, his legal title would, on its face, be indisputable.
Now, though there was no such special authority or grant, nevertheless an act was passed in 1794, by the Kentucky Legislature, which had the same effect, so far as the validity of the patent of 1795, may be concerned, in a court of common law.
By the second section of that act, it was enacted as follows*. “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."
This provision is comprehensive and peremptory. It left to the Register no authority to judge whether a survey transmitted from the Register’s office of Virginia, had been made on a valid or invalid entry. No discrim
It seems clear to us, therefore,' that, whether Clark’s entry was void or not, the act of 1794 not only authorized, but made it the imperative duty of the Register to issue a patent on the certificate of survey — as he seems to have done in obedience to that act. We cannot admit that a patent thus issued pursuant to the authority and mandate of the law, can be deemed void in a court of law, merely because the entry of the patentee was invalid.
Wherefore, it is considered that the judgment of the General Court be affirmed.
