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Opinion of the Court.
This decision is in point, and shows the bill to be without equity as to those of the defendants who are in possession. Their possession is good against all the world except the true owner. As the bill asserts no equity against them, they have the right to stand on their possession until compelled to yield to the true title, and to demand a trial by jury of the question whether the plaintiff has the true title. The plaintiff cannot deprive them of that right by neglecting to acquire the legal title, and upon the ground of her equitable title, ask che aid of a court of equity. She can turn the defendants out of possession only upon the strength of the legal title, which she must first acquire. Having done this, a court of law is the proper forum in which to bring her suit. Hipp v. Babin, 19 How. 271; Parker v. Winnipiseogee Manufacturing Co., 2 Black, 545; Grand Chute v. Winegar, 15 Wall. 373; Lewis v. Cocks, 23 Wall. 466; Killian v. Ebbinghaus, 110 U. S. 568.
As to the defendant Kendrick, it is clear that a court of the United States, sitting in equity, cannot control him in the discharge of his duties as principal surveyor, or take charge of the records of his office, or declare their effect to be other than what appears upon their face.
But we are also of opinion that, upon the issues raised by. the pleas and answers, the plaintiff has failed to make good the case which she has stated in her bill. The pleas and answers denied that the plaintiff had, as she averred; an equitable estate in fee in the lands described in the bill.
We think that this defence is established by the facts; that by reason of the failure of Archibald Gordon, or his legal representatives, to make return of the survey to the General Land Office within the time prescribed by the several acts of Congress on that subject, the entry and survey became vacated, annulled and void, and the lands covered thereby became released from such entry and survey. So that the plaintiff, at the time of bringing her suit, was without any interest or estate in the lands described in her bill.
The lands in controversy are within what is known as the Virginia Military District in the State of Ohio. The State of Virginia claimed title to a large territory northwest as well as
Opinion of the Court.
southeast of the Ohio River, by virtue of a grant to the Colony of Virginia made by King James I. of Great Britain, on May 23, 1609. The Virginia Military District is within the limits of this grant. The State of Virginia, by an act of its legislature, passed in October, 1779, 10 · Hening's Stat. 159, provided for bounty in lands to the officers and soldiers of Virginia in the Revolutionary War, both in what was designated as the Continental and State establisnment, and prescribed the quantity to which they were respectively entitled. Other acts of the legislature provided for the issue of land warrants to those entitled to them, 10 Hening's Stat. 50, and prescribed how they might be located, 11 Hening's Stat. 353. On March 1, 1784, the delegates of the State of Virginia to the Congress of the United States, being authorized thereto by an act of the legislature passed December 20, 1783, 11 Hening's Stat. :26, conveyed to the United States all the lands which the State of Virginia owned or claimed northwest of the Ohio River. See deed of cession, 11 Hening's Stat. 571.
The cession was made subject to certain reservations and conditions, among which was the following: “That in case the
“ quantity of good land on the southeast side of the Ohio,
the waters of the Cumberland River, and between the Green River and Tennessee, which has been reserved by law for the Virginia troops on the Continental establishment, should, from the North Carolina line bearing in further upon the Cumberland lands than was expected, prove insufficient for their legal bounties, the deficiency should be made up to the said troops in good lands to be laid off between the rivers Scioto and Little Miami on the northwest side of the River Ohio, in such proportions as have been engaged to them by the laws of Virginia.”
This court, in the case of Jackson v. Clark, 1 Pet. 628, speaking by Chief Justice Marshall, construed this reservation to be m not a reservation of the whole tract of country lying be tween the rivers Scioto and Little Miami. It is a reservation of only so much of it as may be necessary to make up the deficiency of good lands in the country set apart for the officers and soldiers of the Virginia line on the Continental establishment southeast of the Ohio,” and declared that the residue of the lands was
Opinion of the Court.
ceded as a common property for the use and benefit of the members of the Confederation; and this trust was to be executed by a faithful and bona fide disposition of the land for
As an inference from these views, the court further held that it was within the power of Congress to prescribe the time within which the lands to be appropriated by those holding the bounty warrants should be separated from the general mass, so as to enable the government to apply the residue, which it was then supposed would be considerable, to the other purposes of the trust, and if the time within which the warrants might be located was extended by Congress, it had the right to annex conditions to the extension.
Congress, in the exercise of these powers, w, ich, in the case just cited, it was subsequently decided it possessed, on March 23, 1804, passed an act entitled " An Act to ascertain the boundary of the lands reserved by the State of Virginia, northwest of the river Ohio, for the satisfaction of her officers and soldiers on Continental establishment, and to limit the period for locating the said lands.” 2 Stat. 274. Section 1 of this act defined the boundary of the Virginia Military District in Ohio. - Section 2 provided :
“That all the officers and soldiers, or their legal representatives,'who are entitled to bounty lands within the above-mentioned reserved territory, shall complete their locations within three years after the passing of this act, and every such officer and soldier, or his legal representative, whose bounty land has or shall have been located within that part of the said territory to which the Indian title has been extinguished, shall make return of his or their surveys to the Secretary of the Department of War within five years after the passing of this act, and shall also exhibit and file with the said Secretary, and within the same time, the original warrant or warrants under which he claims, or a certified copy thereof, under the seal of the office where the said warrants are legally kept; which warrant, or certified copy thereof, shall be sufficient evidence that the grantee therein named, or the person under whom such grantee claims, was originally entitled to such bounty land; and every person
Opinion of the Court.
entitled to said lands and thus applying, shall thereupon be entitled to receive a patent in the manner prescribed by law."
The third and last section provided : “ That such part of the above-mentioned reserved territory as shall not have been locạted, and those tracts of land within that part of the said terrritory to which the Indian title has been extinguished, the surveys whereof shall not have been returned to the Secretary of War within the time and times prescribed by this act, shall thenceforth be released from any claim or claims for such bounty lands.”
* The plain meaning of the act is that a failure within five years after its passage to make return to the Secretary of War of the survey of any tract of land located within said territory, made previous to the expiration of said five years, should discharge the land from any claim founded on such location and survey, and extinguish all right, title, and estate previously acquired thereby; and that all lands within said district not located within the same period, should be released and discharged from the right of any person to locate a military warrant thereon. The survey of the entry of Archibald Gordon has, to this day, never been returned to the Secretary of War or, as provided by subsequent acts, to the General Land Office of the United States. His right to the lands covered by his entry and survey was therefore cut off by the act of March 23, 1804, unless it has been saved by subsequent legislation of Congress. Counsel for plaintiff not denying that such was the effect of the act of March 23, 1804, insists that the period limited for returning the survey has been, from time to time, so prolonged that the entry and survey of Gordon are now valid and subsisting, and yest in the plaintiff, as the sole heir of Gordon, an equitable estate in the lands covered by the survey.
This legislation will now be noticed. The act which first followed the law of 1804 was that approved March 2, 1807, 2 Stat. 424. It allowed the officers and soldiers who were entitled to bounty lands in the Virginia Military District a further time of three years from March 23, 1807, to complete their locations, and five years from the same date to return
Opinion of the Court.
their surveys and warrants to the office of the Secretary or War. The act also contained the following proviso: "that no locations, as aforesaid, within the above mentioned tract, shall, after the passing of this act, be made on tracts of land for which patents had previously been issued, or which had been pre viously 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 period of limitation prescribed by the act of March 23, 1804, for making locations and returning surveys was subsequently, from time to time, extended by successive acts of Congress. Act of November 3, 1814, 3 Stat. 143 ; Act of February 22, 1815, 3 Stat. 212; Act of April 11, 1818, 3 Stat. 423; Act of February 9, 1821, 3 Stat. 612; Act of March 1, 1823, 3 Stat. 772; Act of May 20, 1826, 4 Stat. 189. These acts, except that of February 22, 1815, 3 Stat. 212, all contained and repeated the proviso above recited of the act of March 2, 1807.
Congress having established by the act of April 25, 1812, 2 Stat. 716, a General Land Office, the act of November 3, 1814, provided for the return of the surveys and warrants to that office instead of to the Secretary of War, and in this respect was followed by the subsequent statutes, except the act of February 22, 1815, which contained no direction in respect to the return of surveys and warrants.
The act of May 20, 1826, extended the time for making locations to June 1, 1829, for making surveys to June 1, 1832, and for returning surveys to June 1, 1833. After the expiration of the term limited by this act an interval of five years occurred, during which no authority existed for making locations, surveys, or returns of surveys.
The act of July 7, 1838, 5 Stat. 262, extended the time for making locations and surveys, and the return of surveys to the General Land Office, to August 10, 1840, and provided as follows: “That all entries and surveys which may have heretofore been made within the said reservation in satisfaction of any such warrants on lands not previously entered or surveyed, or on lands not prohibited from entry and survey, shali be held