Wallace v. Parker

ERROR to the supreme court of the state of Ohio.

Josiah C. Parker, the defendant in error, filed a bill in the court of common pleas of Brown county, in the state of Ohio, praying for an injunction; and that Cadwallader Wallace, the defendant in error, should be compelled to release his legal title to one thousand acres of land in the Virginia military district in the state of Ohio, which Josiah Parker, the grand father of the complainant, had entered, on or about the 12th of of January 1788, on part of a Virginia military warrant, No. 1920; under which entry a survey was made, but which survey, by the omission of the surveyor, was not returned to the proper officer for record. The bill stated that the defendant, Cadwallader Wallace, had caused part of the tract to be located, and had obtained a grant for the same; and upon the said grant had prosecuted a writ of ejectment against persons in possession of the land under the complainant.

The defendant held under a patent, dated April 13, 1824, issued to him in consideration of military services performed by Thomas Parremore to the United States, a captain, for the war, in the Virginia line on continental establishment, and in pursuance of an act of the congress of the United States of the 10th day of August 1790, entitled 'an act to enable the officers and soldiers of the Virginia line on continental establishment to obtain title to certain lands lying northwest of the river Ohio, between the Little Miami and Sciota.' The survey on which the patent was founded, was dated the 17th day of December 1823. In an answer afterwards filed to an amended bill, he says that the complainant has no equitable claim to the land, because the entry made by him is based upon a resolution warrant, which is not protected by the act of congress, and cannot therefore be a foundation on which to base a valid entry.

The pleadings also exhibit other questions as to the nature and validity of the surveys of the land. As no decision of the court was given upon any of the questions presented by those parts of the proceedings, they are omitted.

The petition of Josiah Parker, the grandfather and devisor of the complainant, in 1783, to the legislature of Virginia for an allowance of land, and the proceedings thereon, were as follows:

To the Honourable, the General Assembly:

The request of Josiah Parker humbly representeth, that he was, in October 1775, appointed by the assembly major of the fifth regiment on continental establishment; that he was, in August 1776, promoted to the rank of lieutenant-colonel, and the April following had the honour of receiving a full colonel's commission in the same regiment, which he retained until August 1778, when he resigned it to general Washington, on the banks of the North river, after the arrival of Compte D'Estaing and the French alliance. That previous to all this, he raised the first company of minutemen on the south side of James river, and was on actual duty at the Great Bridge with his company until his promotion in the continental line. That since his resignation, he has, on every invasion, been employed against the enemy, and with active and disagreeable commands, with the rank still of colonel in the militia, which he satisfied himself with, though inferior to the rank he held in the army, as he felt the satisfaction of serving his country; and during all this his services in the militia, he never received a shilling of money of any sort from this state or the continent; norwithstanding, by the act of assembly allowing a bounty of lands to the officers and soldiers, he is precluded from any share, because he did not serve three years in a continued line; that, nevertheless, he is emboldened to request the assembly will allow him a colonel's allowance of lands, because they have resolved that generals Stephens and Lewson should receive theirs; and although each of these are general officers of the militia, yet they were only colonels at the same time with your petitioner, who remained longer in the continental army than either of them.

In the House of Delegates, Tuesday, the 18th of November 1783:

Mr Mann Page reported from the committee of proposition and grievances, that the committee had, according to order, had under their consideration the petitioner of Josiah Parker, to them referred, and had agreed upon a report, and come to a resolution thereupon, which he read in his place, and afterwards delivered in at the clerk's table, where the same was again twice read and agreed to by the house, as followeth: It appears to your committee, that in October 1775, the said Josiah Parker was appointed a major of the fifth regiment on continental establishment, in which rank he acted until August 1776, when he was appointed lieutenant-colonel; and in April 1777, he received a full colonel's commission in the same regiment, and acted in that rank until August 1778, when he resigned. It also appears to your committee, that since that resignation of the said Josiah Parker, he hath, upon every invasion of this state by the enemy, been upon duty with the militia, in the rank of colonel, with the command of the whole militia on the south side of James river after the invasion by General Philips, until the arrival of the Court de Grasse. Resolved, that the petition of the said Josiah Parker, praying that he may be allowed the bounty in lands by law given to a colonel in the continental line, is reasonable.

Land Office, Military Warrant, No. 1920:

To the principal surveyor of the lands set apart for the officers and solidiers of the commonwealth of Virginia. This shall be your warrant to survey and lay off, in one or more surveys, for colonel Josiah Parker, his heirs or assigns, the quantity of six thousand six hundred sixty-six and two-thirds acres of land, due unto the said Josiah Parker, in consideration of his services for three years as a colonel in the Virginia continental line, agreeable to a certificate from the governor and council, received into the land office.

Given under may hand and seal of the said office, this 21st day of Nov. in the year 1783. JOHN HARVIE, R. L. Office.

The complainant also exhibited in evidence a patent for five hundred and ten acres, issued to him by the United States, as the devisee of Josiah Parker; which patent, bearing date the 1st of February 1827, recited, that in consideration of military services performed by Josiah Parker, for three years a colonel to the United States in the Virginia line on continental establishment, and in pursuance of an act of congress of the United States, passed on the 10th day of August in the year 1790, entitled 'an act to enable the officers and soliders of the Virginia line on continental establishment to obtain titles to certain lands lying northwest of the river Ohio, between the Little Miami and Sciota,' and other acts of the said congress, amendatory to the said act, there is granted by the United States unto Josiah C. Parker, devisee of the said Josiah Parker, a certain tract of land, containing five hundred and ten acres, situate between the Little Miami and Sciota rivers, northwest of the river Ohio, on the waters of Red Oak and Eagle creeks, branches to the Ohio, being part of a military warrant No. 1920.

The court of common pleas of Brown county, on the 26th of September 1826, ordered and decreed that the complainant's injunction for the land aforesaid, and the costs of the suit at law, be rendered perpetual; and that said defendant do, by deed duly executed, within thirty days release to the complainant the land herein before described by metes and bounds; and, in case of failure of said defendant to execute such release, that then and in that event this decree shall operate as such release; and it is further ordered and decreed by the court, that the defendant pay the complainant his costs by him about his suit in this behalf expended, also his costs about his defence in the action at law expended, within thirty days; and, in case of failure, that said complainant have execution for said costs, and the parties are hence dismissed. And thereupon the defendant, by his counsel, gave notice that he would appeal from the decree aforesaid to the supreme court.

The supreme court of Ohio, at November term 1828, affirmed the decree of the court of common pleas; and the defendant prosecuted a writ of error to this court.

The case was argued by Mr Creighton, for the plaintiff in error; and by Mr Corwin, for the defendant.

For the plaintiff it was argued that this case was within the cognizance of the court under the provisions of the twenty-fifth section of the judiciary act of 1789. 7 Wheat. 1. The warrant issued to Josiah Parker by mistake, and this is a matter to be inquired into by the court. It is shown by the record that both parties claim under the various acts of congress, relative to the grants of lands to officers and soldiers of the Virginia line. The right of the defendant in the state court of Ohio, under that law, has been denied. Thus the construction of the act of congress is involved in the case, and the court have full jurisdiction over it. By the facts disclosed in the pleadings and in the exhibits, it is most apparent that the supreme court of Ohio, in deciding the case, were bound to review the statutes of the United States in reference to the subject, and to give a construction to them. The plaintiff in error contends that the court gave an erroneous construction to the act. Cited Hickie v. Starke, 1 Peters, 98; Harris v. Denny, 3 Peters, 292; Fisher v. Cockrel, 5 Peters, 248.

As the warrant to Josiah Parker emanated from the state of Virginia, and was issued by an officer of the state, and the United States have assumed the execution of the laws of Virginia under which the same was granted, the courts of Ohio must have had those laws before them and must have construed them.

The law of the United States, of August 10, 1790, gives land on the Sciota river to satisfy those who are entitled to land by the law of Virginia, under military warrants. The plaintiff in error contends that the grant to the devisor of the defendant in error was not authorized by the Virginia law. Swann's Laws of Ohio, 70, 127.

It is denied that the title of the defendant in error is protected under the act of congress. In September 1783, congress passed the act proposing the cession of the lands north and west of the Ohio river to the United States; and in October 1783, the legislature of Virginia acceded to the terms offered by that act.

In May 1779, the state of Virginia passed the first law relative to the grants of lands for military services. No quantity was designated by that act. In October 1779, a law was passed regulating the quantity each officer should have. Swann's Laws, 11. These were the only laws on the subject in force at the time of the cession; and under these laws no one was entitled to a warrant who had not served on the continental establishment three years, or until the end of the war; or who was the legal representative of one who was killed in battle or had died in the service.

Under the act of congress of 1800, state line officers were not entitled to land. And that act expired in three years. If the defendant could avail himself of the provisions of that act, he was bound to show a compliance with its provisions within the three years. The act of 1807 provides for another class of officers.

After the cession made by Virginia to the United States, she might provide as she thought proper for her meritorious officers; but that provision could not be made out of the land ceded, unless the officer had served three years. And the issuing of a patent under the act of 1807 is prohibited under the act of 1807, unless the person applying for it was entitled to a warrant under the laws of Virginia prior to the cession. The warrant to Josiah Parker was issued under a special resolution of the Virginia legislature, was for services of less than three years on the continental establishment, and was authorized in November 1783, after the cession to the United States.

Mr Corwin, contra, argued: 1. That this court had no jurisdiction of the case of the pleadings and evidence.

2. That the warrant to Josiah Parker was good and valid, it having issued prior to the transfer of the soil by Virginia to the United States.

3. The warrant of Parker being in usual form, expressing upon its face legal consideration, and having been issued upon the order and judgment of the proper tribunal authorized to hear and determine such cases, and no appeal or writ of error being allowed from such decision; it cannot be questioned in a collateral way, but must be taken as conclusive evidence of the right of Parker to the warrant. Cited on this point, Ohio Land Laws, 129, 132, 134, 135; Hughes's Ken. Rep. 46; 2 Bibb, 134; 1 Marshall, 149.

He denied that the construction of an act of congress was drawn into question in this case before the courts of Ohio, in deciding on the rights of the parties.

The warrant of the 21st of November 1783 was before the courts of Ohio; and it was not necessary for those courts to look beyond the Virginia laws to decide upon the rights of the complainant there.

But if the warrant to Josiah Parker was a resolution warrant, it was good under the act of congress. The cession by Virginia was made in March 1784, and the warrant was issued on the 21st of November 1783. The act of congress of 1807 covers all land engaged by the state of Virginia prior to the cession, not prior to the preparatory legislation in reference to the cession. All existing rights to lands under the legislature of Virginia were to be satisfied out of the reserved lands. This is clearly one of the cases included under the act of 1807. That act relates in terms to resolution warrants, and does not relate to warrants under the Virginia law of 1779.

A resolution is a law within the meaning of this act. No officer entitled to a warrant under the Virginia law of 1779 took a resolution warrant: and the necessity for a warrant arose from the fact that the officer in this case was not entitled under the act of 1807. Cited, also, Act of Congress of 1803, 7 L. U.S. 171.

Mr Chief Justice MARSHALL delivered the opinion of the Court.