Syllabus.

The motion to dismiss is overruled, and the case is one to be heard on the merits, and not to be affirmed on motion. Both motions are denied.

FUSSELL v. GREGG & others.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

Argued January 8, 9, 1885.-Decided February 2, 1885.

A Court in Equity has no jurisdiction over a suit based upon an equitable title to real estate, unless the nature of the relief asked for is also equitable. A court of the United States sitting in equity, cannot control the principal surveyor of the Virginia military district in the discharge of his official duties; or take charge of the records of his office; or declare their effect to be other than what appears on their face.

The plain meaning of the act of March 23, 1804, 2 Stat. 274, to ascertain the boundaries of the Virginia Military District in Ohio, is, that a failure within five years to make return to the Secretary of War of the survey of any tract located within the Territory, made previous to the expiration of the five years, should discharge the land from any claim founded on such location and survey and extinguish all rights acquired thereby. The series of acts relating to this District, beginning with the act of March 23, 1804, and ending with the act of July 7, 1838, 5 Stat. 262, as revived and continued in force by later acts, are to be construed together, and as if the third section of the act of March 23, 1804, had been repeated in every act of the series.

The act of March 3, 1855, 10 Stat. 701, allowing persons who had made entries before January 1, 1852, two years time to return their surveys, did not apply to those who had made both entries and surveys before the latter date. The land office referred to in § 2 of the act of May 27, 1880, 21 Stat. 142, relating to the Virginia Military District in Ohio is the General Land Office. On the pleas and issues in this cause, the complainant has failed to make good the case stated in the bill.

The facts which make the case are stated in the opinion of the court.

Opinion of the Court.

Mr. Jeremiah Hall for appellant cited Galt v. Galloway, 4 Pet. 332; United States v. Stone, 2 Wall. 525; Shipp v. Miller, 2 Wheat. 316; Stephens v. McCargo, 9 Wheat. 502; The Aurora, 7 Cranch, 382; The Anne, 7 Cranch, 569; Peck v. Pease, 5 McLean, 486; Satterlee v. Matthewson, 2 Pet. 380; and the United States Land Laws.

Mr. William Lawrence filed a brief for appellees, citing the acts of Congress and of Virginia relating to Virginia Military Lands in Ohio; Galt v. Galloway, 4 Pet. 332; Hart v. Cregg, 32 Ohio St. 502; Latham v. Oppy, 18 Ohio, 104; Jackson v. Clark, 1 Pet. 628; Reckner v. Warner, 22 Ohio St. 275; Stubblefield v. Boggs, 2 Ohio St. 216; Dresback v. McArthur, 7 Ohio, Part 1, 146; Harlan v. Thatcher, 18 Ohio, 48; Thomas v. White, 2 Ohio St. 540; Weaver v. Froman, 6 J. J. Marsh, Ky. 213; Dixon v. Caldwell, 15 Ohio St. 412; Chinn v. Trustees, 32 Ohio St. 236; Hager v. Reed, 11 Ohio St. 625, 635; Clark v. Southard, 16 Ohio St. 408 Walker v. Knight, 12 Ohio St. 209; Slater v. Cave, 3 Ohio St. 80; Clark v. Potter, 32 Ohio St. 49; Whitney v. Webb, 10 Ohio, 513; Carey v. Robinson, 13 Ohio, 181; Congressional Documents, House Mis. Doc. No. 10, 2d Session 47th Congress, November 16, 1882, and House Mis. Doc. No. 42, 1st Session 47th Congress. June 23, 1882; which documents Mr. Lawrence said had been prepared by him and contained much information on Virginia military land titles in Ohio.

MR. JUSTICE WOODS delivered the opinion of the court.

This was a bill in equity, filed November 20, 1879, to establish the title of the plaintiff to, and recover the possession of, a certain tract of land in the County of Logan, in the State of Ohio, and for an account of rents and profits. Filling the many blanks left in the bill by resort to the evidence, the case made thereby was substantially as follows:

On July 19, 1822, warrant No. 6,508 for 200 acres of land was granted by the State of Virginia to the grandfather of the plaintiff, Archibald Gordon, late of Cecil County, Maryland, in consideration of his services as a private in the Virginia.line on

Opinion of the Court.

the Continental establishment in the War of the Revolution. On January 21, 1823, he caused his warrant to be located by entry No. 12,017 in the Virginia Military District in the State of Ohio, and the entry to be duly recorded. On March 25, 1823, he caused the entry to be surveyed by Thomas J. McArthur, a deputy surveyor of said military district, and on November 5, 1824, he had the survey recorded in the office of the principal surveyor of the district. Archibald Gordon died intestate about the year 1829, leaving Archibald Gordon, Jr., late of Baltimore, Maryland, his only child and heir-at-law. Archibald Gordon, Jr., died intestate about the year 1833 or 1834, leaving the plaintiff and her sister, Sarah Priscilla Gordon, his only children and heirs-at-law. The plaintiff, on October 31, 1854, intermarried with Joseph B. Fussell, who died December 6, 1864, and the plaintiff's sister, Sarah Priscilla, having intermarried with one William H. Kelly, died intestate on May 12, 1853, leaving issue one daughter, her only child, Mary Elizabeth Kelly. William H. Kelly died at a date not mentioned, leaving his daughter, Mary Elizabeth, surviving him, who died at the age of 9 years 6 months and 3 days without issue, leaving the plaintiff her sole heir-at-law. The plaintiff claimed that by direct inheritance from her father, Archibald Gordon, Jr., and collateral inheritance from her niece, Mary Elizabeth Kelly, she was seized of an equitable estate in fee in the lands covered by survey 12,017, and entitled to the immediate possession thereof.

It was further alleged that on October 4, 1851, Daniel Gregg, one of the defendants, made an entry on the records of the principal surveyor of the district, No. 16,070, of 130 acres on military warrant No. 442, and on December 20, 1851, he procured one hundred acres of his entry to be so surveyed as to cover one hundred acres of land appropriated by the entry and survey of Archibald Gordon, No. 12,017, and on November 2, 1855, he caused the survey to be recorded, and on November 20, 1855, obtained a patent of that date for the lands described in this survey. The bill further averred that the entry, survey, and patent of Gregg were all made and obtained in violation of the proviso of section 2 of the act of March 1, 1823, entitled

Opinion of the Court.

"An Act extending the time for locating Virginia military land warrants, and returning surveys thereon to the General Land Office," 3 Stat. 772, and were, therefore, null and void, and never appropriated any land or vested any title in Gregg as against the plaintiff, or those under whom she claimed.

It was further alleged that the defendant, Eleazer P. Kendrick, being the principal surveyor of the Virginia Military District, and in possession of the records of that office, did, subsequently to the entry and survey of Gregg, without the knowledge or consent of plaintiff, or of any person under whom she claimed title, write in the margin of the record of Archibald Gordon's entry the word "withdrawn," and in and across the plat and record of the survey thereof the words "State line," and that Kendrick refused to give the plaintiff a duplicate of said survey to enable her to obtain a patent for the land described therein.

Daniel Gregg, Eleazer P. Kendrick, William Swissgood, Emily Swissgood, Francis Higgins, John W. Higgins, Angeline Higgins, Matilda Higgins, James Eaton, W. G. Smithson and Andrew Murdock were made defendants to the bill of complaint, the bill alleging that the defendants, except Gregg and Kendrick, wrongfully kept the plaintiff out of possession of the premises sued for, claiming title under Gregg. The prayer of the bill was, that the validity of the entry and survey of Gordon might be affirmed and established, and the entry, survey, and patent of Gregg declared void; that the words "withdrawn" and "State line" might be adjudged to have been written upon the record of the Gordon entry and survey without authority; that the plaintiff might be put in possession of the premises sued for, and have an account of rents and profits, and for general relief. Daniel Gregg, Francis Higgins, John W. Higgins, Angeline Higgins and Matilda Higgins, by plea, and the other defendants, except Kendrick, by answer, denied the title of the plaintiff, and set up the limitation of twenty-one years prescribed by the statute of Ohio, in bar of the relief prayed by the bill. Kendrick made no defence. Upon final hearing upon the pleadings and evidence the Circuit Court dismissed the bill, and the plaintiff appealed.

Opinion of the Court.

We think that the averments of the bill do not entitle the plaintiff to relief. Her case, as alleged, is, that she has an equitable estate in fee in the premises in dispute, and that the defendants, except Gregg and Kendrick, are in possession without title; in other words, are naked trespassers. The theory of her bill seems to be that, because she has an equitable title only, and for that reason could not recover in an action at law, a court of equity has jurisdiction of her case. But this is plainly an error. Mr. Justice Bradley, in Young v. Porter, 3 Woods, 342. To give a court of equity jurisdiction, the nature of the relief asked must be equitable, even when the suit is based on an equitable title. The plaintiff does not allege that the defendants, who are in possession of the premises, have the legal title, or that they obtained possession under any person who had it. Nor does she state any facts which connect them with her equity. They being mere naked trespassers, in possession, she prays that they may be turned out of, and she, who has only an equitable title, may be put in possession. The relief prayed for is such as a court of law is competent to grant, if the plaintiff's title would justify it. But the plaintiff does not seek by her bill to better her title. If all the relief asked for were granted, she would still have an equitable title only. The case is, therefore, an ejectment bill brought on an equitable title. In these respects it is similar to the bill in the case of Galt v. Galloway, 4 Pet. 332. That was a bill in equity brought by the heirs of James Galt for general and special relief against Galloway, Baker, Patterson, and others, setting up title to one thousand acres of land in the Virginia Military District in Ohio, based upon an entry and survey in the name of James Galt. Baker and Patterson were in possession of six hundred acres of the land, claiming title in the name of Galt. The court found that Baker and Patterson had no title to the lands held by them, and upon this state of case said: "These occupants can be considered in no other light by the court than intruders; and the remedy against them is at law and not in chancery. No decree could be made against them, unless it be that they should deliver possession of the premises; and to obtain this the action of ejectment is the appropriate remedy." Page 339.