McArthur's Heirs . Dun's Heirs.

Chief Justice Marshall, in the case of *Jackson v. Clarke, 1 Pet., 628, and the power of Congress with respect to them placed beyond objection.

[*269

In the next place, in the interpretation of the proviso contained in the laws of 1807 and 1823, the case of Jackson v. Clarke, we think, effectually overrules the distinction attempted in the argument of this cause between a patent and a survey in the operation of either proviso, a distinction, as we have already remarked, not taken by the language of the statute. Speaking of the survey in the case just quoted, Chief Justice Marshall says:-"The survey, having every appearance of fairness and validity given to it by the officers of the government, is sold as early as 1796 to persons who take possession of it, and have retained possession ever since. Why should not the proviso in the act of Congress apply to it? The words taken literally certainly apply to it. Does the language of the clause furnish any distinction between the patent and the survey? Lands surveyed are as completely withdrawn as lands patented from subsequent location." Again, it is said, in the same case, that "a survey made by the proper officer, professing to be made on real warrants, and bearing on its face every mark of regularity and validity, presented a barrier to the locator which he was not permitted to approach, which he was not at liberty to examine." The case of Jackson v. Clarke may be appealed to for another illustration, which is very apposite to the present controversy. In support of the junior location and patent of Dun the court has been referred to the case of Taylor's Lessee v. Myers, 7 Wheat., 23, as an instance in which a location on land previously surveyed had been permitted subsequently to the proviso of 1807. But in the case of Taylor's Lessee v. Myers the owner had openly abandoned his location and survey, and had placed his warrant on other land. In such a case, say the court, "the land was universally considered as returning to the mass of vacant land, and becoming, like other vacant land, subject to appropriation; therefore in Taylor's Lessee v. Myers, the court said, the proviso which annuls all locations made on lands previously surveyed applies to subsisting surveys, to those in which an interest is claimed, not to those which have been abandoned, and in which no person has an interest. This survey has not been abandoned by any person having an interest in it." No force, then, is perceived in the instance adduced, and no strength can be imparted by it to the position occupied by the defendants in this case; because by the abandonment the previous location and survey to every legal and operative purpose were annihilated, and there might be said in effect to have

McArthur's Heirs v. Dun's Heirs.

been none such, the original locator could not be compelled to hold *or continue them; it having been expressly *270] ruled by this court that the owner of a survey or a patent may abandon either at his pleasure.

But it is contended for the defendants, that the entry and survey made in the name of Means, being by reason of his death at the date of that entry and survey absolutely void, under the authority of the decisions of Galt v. Galloway, 4 Pet., 345, and McDonald v. Smalley, 6 Pet., 261, the proviso in the act of Congress did not revive them or give them validity. That, according to the interpretation of the act of Congress in the case of Jackson v. Clarke, the proviso is extended no farther than to irregular patents. The language of the decision just mentioned does not literally apply to surveys pronounced absolutely void, by the death of the locator, or by any other cause, but it is equally true, that neither the terms nor the spirit of the reasoning of the court, nor of the decision, declare or imply any thing against the justice of such claims. The reasoning of the court in that case would apply as strongly to the justice of cases which were not perfected by reason of death, as it possibly could do to such as were not perfected in consequence of the neglect or omission of the persons interested; and surely the intrinsic character of the claim could not be affected by the former cause; its justice as against the government would remain precisely the same. The government would not have fulfilled its acknowledged obligation to the owner of the warrant or survey. There can be no question as to the power of the government to revive or confirm surveys or patents made or granted to persons not actually in life when such surveys or patents were made; there is an obvious propriety in a fulfilment of its undertakings by the government, and in its forbearance to enforce a forfeiture founded on no delinquency in those who would be affected thereby; and there is nothing in the act of Congress or in any judicial constitution thereof requiring or indicating an opposite conclusion. Indeed, the utmost which it has been attempted to deduce from the statute, or from any interpretation of the statute, is in the absence of an authoritative declaration, that surveys and patents made or issued in the names of persons not living at the periods of their respective dates have not in fact been reserved and confirmed. But is not this deduction directly at war with the unequivocal authority of this court, in open conflict with the decision of Galloway v. Finley, reported in 12 Pet., 264? We hold that it is. In order to escape from this decision, it has been argued that the case last mentioned ruled nothing

McArthur's Heirs . Dun's Heirs.

beyond this, that Galloway, as the vendee of Finley, should not be permitted to avail himself of information derived from his vendor, and use it with a view to im. [*271 peach the vendor's title, and as a means to obtain a better title in himself, in opposition to the title of that vendor. It is true that the point here stated was ruled in the case, but the decision was by no means limited to that single point. Under the pleadings and proofs in that case, the title of Finley was necessarily brought into review; its character and the effect of the act of Congress with respect to it were discussed and decided upon. In that case, as in the present, it was contended that the statute operated upon titles merely irregular or defective, and did not embrace such as were void. In refutation of this interpretation the court proceed thus:"It is insisted that the section had reference to imperfect, and not to void titles. The legislature merely affirmed a principle not open to question, if this be the true construction. Had an effective patent issued, the government would not have had any title remaining, and a second grant would have been void of course. Something more undoubtedly was intended than the protection of defective, yet valid, surveys and patents." Again the court say,-"The death of the grantee is an extrinsic fact, not impairing the equity of the claim as against the government. The defects of all others most common in the military districts of Kentucky, Tennessee, and Ohio were where the soldier had died, and the entry, survey, and grant had been made in the name of the deceased. In his name the warrant almost uniformly issued; who the heirs were was usually unknown to the locator, and disregarded by the officers of the government when perfecting the titles. In Tennessee and Kentucky, provision was made at an early day that the heir should take by the grant; and why should we presume that Congress did not provide for the protection of his claim to the lands purporting to have been granted, when the legislation of the federal government was of necessity controlled in this respect by the experience of members coming from States where there were military lands? The statute is general, including by name all grants, not distinguishing between void and valid; and the plainest rules of propriety and justice require that the courts should not introduce an exception, the legislature having made none.-Congress had power in 1807 to withhold from location any portion of the military lands, and, having done so in regard to the lands of C. Bradford, the complainant Galloway had no right to enter the same."

Authority so directly in point leaves little room for com

McArthur's Heirs v. Dun's Heirs.

ment; indeed, it may be said that, mutate nomine, the case of Galloway v. Finley is the case of McArthur's heirs against the heirs of Dun. Upon the plain and natural import of the *proviso in the statutes of 1807 and of 1823, upon the *272] reasoning of this court in the case of Jackson v. Clarke, 1 Pet., 628, but chiefly upon the very pointed authority of the case of Galloway v. Finley, we are of the opinion that the location and survey of the land in question in the name of James Galloway, and the patent issued to him for the same, as mentioned in the certificate of division, are null and void, as being made and done in contravention of the proviso to the second section of the act of Congress on the 1st of 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 we do order this opinion to be certified to the Circuit Court of the United States for the District of Ohio.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the location and survey of the land in question in the name of James Galloway, and the patent issued to him for the same, as mentioned in the certificate of division, are null and void, as being made and done in contravention of the proviso to the second section of the act of Congress of the 1st of 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." Whereupon it is now here ordered and decreed by this court, that it be so certified to the said Circuit Court.

288

Mace v. Wells.

TIMOTHY L. MACE, PLAINTIFF IN ERROR, v. JARED WELLS.

By the fifth section of the United States Bankrupt Act (5 Stat. at L., 444), the surety upon a promissory note had a right to prove the demand against the maker, who became a bankrupt, and by the fourth section the bankrupt was discharged from all debts which were provable under the act.1

Therefore, where the surety paid the note to the creditor, after the discharge of the bankrupt, and brought suit against the bankrupt for the amount, he was not entitled to recover it.2

THIS case was brought up from the Supreme Court of Judicature of the State of Vermont, by a writ of error issued under the twenty-fifth section of the Judiciary Act.

*The following statement of facts was argued upon by the counsel in the court where the cause was originally tried.

Orange County Court, December Term, 1844.

[*273

JARED WELLS v. TIMOTHY L. MACE AND TRUSTEES.

Action of Assumpsit for money paid.

The parties agree to the following facts in this case :-That the plaintiff signed two notes with the defendant, of the dates and tenor following:

"$35.00.

Wells River, July 9, 1840.

"For value received, I promise to pay Hiram Tracy, or order, thirty-five dollars, in four months, with interest annually. TIMOTHY L. MACE, JARED WELLS."

"$157.48.

Wells River, August 14, 1840. "For value received, we jointly and severally promise to pay Hutchins & Buchanan, or order, one hundred and fifty-seven dollars and forty-eight cents, in one year, with interest annually. TIMOTHY L. MACE, JARED WELLS."

Said first note was paid by said Wells to said Tracy on the 12th day of July, A. D., 1841. Said note was given for the sole and proper debt of said Mace, and Wells signed only as

1 CITED. Davis v. McCurdy, 50 Wis., 575.

2 CITED. App., 428.

Thomas v. Liebke, 9 Mo.