Halsted v. Buster

• Decision Date: 11 May 1891
• Citation: 35 L.Ed. 484,140 U.S. 273,11 S.Ct. 782
• Parties: HALSTED v. BUSTER et al
• Court: U.S. Supreme Court

140 U.S. 273

11 S.Ct. 782

35 L.Ed. 484

HALSTED v. BUSTER et al.

May 11, 1891.

A. Burlew, for plaintiff in error.

J. F. Brown, for defendant in error.

BREWER, J.

This case has been in this court once before. A judgment in favor of the defendants was reversed on account of an error in pleading. Halsted v. Buster, 119 U. S. 341, 7 Sup. Ct. Rep. 276. On its return to the trial court the pleadings were amended, and the case proceeded to trial before a jury. The judgment and verdict were a second time in favor of defendants, and again plaintiff alleges error. The facts are these: Upon an entry made April 12, 1785, and a survey in pursuance thereof, August 24, 1794, a patent issued on July 22, 1795, from the commonwealth of Virginia, for 2,000 acres, to Albert Gallatin and Savary De Valcoulon. Subsequently, upon entries made October 24, 1794, and January 25, 1795, and a survey in pursuance thereof, April 14, 1795, a patent was issued on the 1st day of January, 1796, to Benjamin Martin, assignee of William Wilson, by the commonwealth of Virginia, for 85,600 acres. This patent was what is known as an 'inclusive grant,' and contained this language: 'But it is always to be understood that the survey upon which this grant is founded includes 6,786 acres of prior claims, (exclusive of the above quantity of 85,600 acres,) which, having a preference by law to the warrants and rights upon which the grant is founded, liberty is reserved that the same shall be firm and valid, and may be carried into grant or grants, and this grant shall be no bar, in either law or equity, to the confirmation of the title or titles to the same, as before mentioned and reserved, with its appurtenances.' This form of grant was authorized by an act of the general assembly of Virginia passed June 2, 1788, as follows: 'Whereas, sundry surveys have been made in different parts of this commonwealth, which include, in the general courses thereof, sundry smaller tracts of prior claimants, and which in the certificates granted by the surveyors of the respective counties are reserved to such claimants; and the governor or chief magistrate is not authorized by law to issue grants upon such certificates cates of surveys, for remedy whereof (1) be it enacted by the general assembly that it shall and may be lawful for the governor to issue grants wih r eservations of claims to lands included within such survey, anything in any law to the contrary notwithstanding.' 2 Rev. Code Va. 434. Grants of this character have been before this court as well as the highest courts of Virginia, West Virginia, and Kentucky, their validity sustained by each of those courts, and the construction to be given to them adjudged to be that no title or right passes to the patentee to any surveyed lands thus reserved within the limits of the exterior boundaries. Scott v. Ratliffe, 5 Pet. 81; Armstrong v. Morrill, 14 Wall. 120; Hopkins v. Ward, 6 Munf. 38; Nichols v. Covey, 4 Rand. (Va.) 365; Trotter v. Newton, 30 Grat. 582; Patrick v. Dryden, 10 W. Va. 387; Bryan v. Willard, 21 W. Va. 65; Madison v. Owens, 6 Litt. Sel. Cas. 281. It appears that the Gallatin tract, whose survey was prior to the Martin survey and patent, was, partially at least, within the exterior limits of the latter grant. By the rule, therefore, established by these decisions, the land within the Gallatin survey was excluded from the Martin grant. No title thereto—not even a conditional or inchoate one—passed by the Martin patent. Subsequently, and before the year 1842, the Gallatin lands were forfeited to the commonwealth of Virginia in consequence of the non-payment of taxes. On March 22, 1842, the general assembly of Virginia passed an act, the third section of which is as follows: 'And be it further enacted that all right, title, and interest which shall be vested in the commonwealth in any lands or lots lying west of the Allegheny mountains by reason of the nonpayment of the taxes heretofore due thereon, or which may become due on or before the first day of January next, or of the failure of the owner or owners thereof to cause the same to be entered on the books of the commissioner of the proper counties, and have the same charged with taxes according to law, by virtue of the provisions of the several acts of assembly heretofore enacted in reference to delinquent and omitted lands, shall be, and the same are hereby, absolutely transferred to and vested in any person or persons (other than those for whose default the same may have been forfeited, their heirs or devisees) for so much as such person or persons may have just title or claim to,...