U.S. Supreme Court
McArthur's Heirs v. Dun's Heirs, 48 U.S. 7 How. 262 262 (1849)
McArthur's Heirs v. Dun's Heirs
48 U.S. (7 How.) 262
The proviso in the second section of the Act passed on 1 March, 1823, 3 Stat. 773, entitled, "An act for extending the time for locating Virginia military land warrants and returning surveys thereon to the General Land Office," which proviso is as follows, viz.,
"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"
protected an entry which had been made in the name of a dead man in 1822. And a subsequent conflicting entry came within the prohibition of the statute, and was therefore void.
The cases of Galt v. Galloway, 4 Pet. 345; McDonald's Heirs v. Smalley, 6 Pet. 261; Jackson v. Clarke, 1 Pet. 628; Taylor's Lessee v. Myers, 7 Wheat. 23; and Galloway v. Finley, 12 Pet. 264, reviewed.
This case 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:
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 3 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 23 November, A.D. 1822, followed by a survey of said entry made in the name of the said Robert Means, assignee, on 18 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 4 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 10 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 1 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. 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. "