Galt v. Galloway
APPEAL from the circuit court of Ohio.
James Galt, as heir to his brother Patrick Galt, the ancestor of the complainants, on the 6th day of August 1787, made an entry for military lands in the Virginia reservation, in the following words: 'No. 610, James Galt (heir) enters one thousand acres on part of a military warrant, No. 194, on the Miami river, beginning at the upper corner of Francis Wheeling's entry, No. 438, running up the river five hundred poles when reduced to a straight line; thence at right angles with the general course of the river, and with Wheeling's line for quantity.'
The bill of the appellants stated that this entry was valid on the 15th of November 1796, and that a survey under the same was made thereon agreeably to its calls; that James Galt died intestate prior to the 2d of March 1807; and that posterior thereto Elias Langham, without any authority from James Galt or from the complainants, caused an entry of the withdrawal of four hundred acres to be made in the books of the surveyor; the effect of which was to render the residue of the entry of such a shape as that it could not be legally surveyed, the law requiring that the breadth of a survey shall be one-third of its length. Subsequent to this withdrawal, the four hundred acres which Langham attempted to have left vacant thereby, were located by Galloway, by entries of three hundred acres in his own name, and one hundred acres in that of Ladd, both of which were included in one survey made on the 18th of June 1808; but afterwards, on the 20th of July 1809, Galloway having caused the word 'error' to be entered on the face of the plats of the survey of 1808, had separate surveys executed in his own name and in that of Ladd, and also caused a survey to be made for himself of six hundred acres of James Galt's entry of August 1787 of one thousand acres, the part of the same, to withdraw which no attempt had been made by Elias Langham. A patent for the four hundred acres was obtained by Galloway; and he afterwards conveyed the land included in the same to different persons, who are made parties to the bill. The bill also stated that Thomas Baker resides on part of the one thousand acres, claiming title under Joshua Collet. That Collet claims title to part; that William Patterson is in possession of, claiming title to the residue; and that Galloway refuses to withdraw the four hundred acres. The complainants say they cannot procure a patent for the six hundred acres, without jeopardizing their title not only to the four hundred acres, but also to the six hundred acres; and pray for particular and general relief.
The answer of James Galloway, Jun. states, that Langham withdrew the four hundred acres of Galt's entry of one thousand acres; and that he believes the withdrawal was authorised, but knows not by whom; and, that since the bill was filed, he has heard the same was authorised by Westfall. The survey on the six hundred acres, the residue of Galt's entry, he says, he executed and returned, and that he was at the time he made the same, a regular deputy under Anderson. He obtained a patent for three hundred acres of the land included in the patent, and sold the same.
Joshua Collet and William Patterson, in their answers, claim to hold title under Westfall; the same having been sold as his property for his debts or responsibilities. Patterson represents, that he believes Westfall made a contract with Galt for the whole of warrant No. 194, on a part of which his claim is founded; and that Westfall obtained patents in his own name for other entries on the warrant, and sold them for his own benefit.
Elias Langham answers, that, at the request of Westfall, he withdrew the four hundred acres as charged. He believed Westfall purchased the warrant No. 194 from Galt, in his life time. He considered himself in possession of the whole, as agent of Westfall, except one thousand acres transferred to Mallow from 1797; and never heard of complainants' claim until after the death of Westfall. By order of Westfall, he laid off the town of Westfall in Pickaway county, and sold several small tracts of land, part of warrant No. 194; and that he contracted with Westfall to withdraw and re-enter other lands, which entitled him to six hundred acres.
Evidence was exhibited, intended to show that an impression prevailed generally that Westfall was entitled to half of Galt's military land warrant. That Galt's warrant was put into Westfall's hands to locate land. The opinion of the court states such parts of the testimony and other facts of the case, as were considered made out by proof.
The circuit court of Ohio gave a decree against the complainants, and they appealed to this court.
The cause was argued by Mr Irvin for the appellants, and by Mr Doddridge, contra.
For the appellants, it was contended:
1. That the entry in question of one thousand acres, was originally good and valid.
2. That the original survey of one thousand acres, included the lands embraced in said entry.
3. That James Galt, in whose name the said entry and survey were made, died intestate; and that the appellants are his heirs at law.
4. That on the death of said Galt, a right to three thousand acres, part of warrant No. 194, and of the lands appropriated thereby, (which includes the lands in question,) vested in the appellants as his heirs at law.
5. That their right to the lands in question is not destroyed by either:
1st. Langham's attempt to withdraw four hundred acres, part thereof; or 2d. The locations made in the name of Galloway and Ladd, on the part of said entry, so attempted to be withdrawn, and the surveys and patents on said entries; or 3d. The conveyances from Galloway to Stephenson, and the Gibsons, and from Ladd's executor to Wilson; or 4th. The conveyance bond executed by Westfall to Armstrong, and assigned by him to Davis, and by Davis to Patterson; or 5th. The proceedings in attachment against Westfall, and the sale and conveyance to Collet.
Mr Irvin argued: that there was no legal evidence to show that any authority had been given by Galt, the ancestor of the appellants, to any one, to withdraw his entry. The declarations of Westfall, that he had received such authority, were not evidence that it had been given; and the declarations of an agent cannot be used against his principal, unless within the scope and purpose of his authority. A power to locate the entries, did not authorise their revocation; nor did it give to the agent the right to dispose of the property or make it his own. If any power was given by James Galt to Westfall or to any other person, it should be shown. He who asserts it, must make it out by evidence. If the contents of the instrument, which is said to have given the power, are to be proved by parol evidence, its non-production should be accounted for. Cited, 8 East, 550. 7 Wheat. 154. Phil. 77, 79. 2 Taunt. 21.
The removal of the warrant and entry was thus without authority. Langham acted under Westfall; and Westfall had no authority to give to Langham, to do what was done by him. The whole of the proceedings of Langham were therefore void; and no titles obtained under them can be valid against those whose legal and known rights were infringed by the fraudulent contract of pretended agents.
After the survey was made, the warrants became functi officio: the warrant merges in the survey, if the survey was authorised; but not otherwise. 1 Ohio Rep. 225. 3 Marsh. Ken. Rep. 501, 96. 1 Marsh. 129, 144. Hardin, 567.
Can the defendants avail themselves of want of notice? The assignee of an equity is in no better condition than the assignor, and there is no proof in the case that Westfall owned an acre of the land. Cited 6 Wheat. 560. 1 Marsh. 144.
Mr Doddridge, for the defendants, contended,
1. That upon the whole case, the complainants have shown no title in themselves.
2. As to Galloway and those claiming under him, that the four hundred acres being actually withdrawn on the surveyor's books, vacated that quantity of the original entry: that they were not bound to look beyond the record; and are innocent purchasers, without notice.
3. That owing to the particular position of the one thousand acre entry, the withdrawal of four hundred acres necessarily left vacant the part located by Galloway.
The appellants have slept too long on their rights, if any existed. The bill was filed in 1821, and they have suffered too long a period to elapse without complaint, on their part, of those proceedings which are now claimed to be void. Under those proceedings sales had been made; bona fide titles for a full and valuable consideration had been acquired by the defendants; all of which are to be vacated and defeated, if the claims of the appellants prevail. He contended; that as to the four hundred acres the conduct of the surveyor, in withdrawing this part of the survey, was in accordance with a practice of universal prevalence; nor was it required by the law of Virginia that, to transfer a warrant, a regular assignment of it should be mode. This principle was recognized by this court, in the case of Bouldin and Wife vs. Massie's Heirs et al. 7 Wheat. 122. It may, therefore, be well presumed, that the acts of Westfall were authorised; that he had an interest in the warrants; and, therefore, what was done by Langham was correct. When an entry is made on the books of the office, by the principal surveyor, it must be supposed valid; especially at a great distance of time; unless the contrary be plainly proved.
The land law of Virginia, which regulates this case, does not support the position, that a warrant surrendered is functus officio. 7 Wheat. 23. Vir. Laws, 326, sec. 19, 24, 32, 42, 38.
Mr Justice M'LEAN delivered the opinion of the Court: