Fussell v. Gregg

• Decision Date: 02 February 1885
• Citation: 28 L.Ed. 993,5 S.Ct. 631,113 U.S. 550
• Parties: FUSSELL v. GREGG and others. 1
• Court: U.S. Supreme Court

113 U.S. 550

5 S.Ct. 631

28 L.Ed. 993

FUSSELL v. GREGG and others.¹

February 2, 1885.

Jeremiah Hall, for appellants.

Wm. Lawrence, for appellees.

Woods, J.

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 the continental establishment in the war of the revolution. On Junuary 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 nine years six months and three 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 100 acres of his entry to be so surveyed as to cover 100 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. 'An act extending the time for locating Virginia military land-warrants, and returning surveys thereon to the general land-office,' (3 St. 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 Eleazur 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, Eleazur 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, wrongly 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 l mitation of 21 years prescribed by the statute of Ohio, in bar of the relief prayed by the bill. Kendrick made no defense. Upon final hearing upon the pleadings and evidence, the circuit court dismissed the bill, and the plaintiff appealed.

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. Golloway, 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 1,000 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 600 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.'

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 the 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 Manuf'g Co. 2 Black, 545; Grand Chute v. Winegar, 15 Wall. 373; Lewis v. Cocks, 23 Wall. 466; Killian v. Ebbinghaus, 110 U. S. 568; S. C. 4 SUP. CT. REP. 232.

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 defense 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 north-west as well as south-east of the Ohio river, by virtue of a grant...