John King and Others, Appellants v. James Hamilton, James Stricker and Frances His Wife, Hezekiah Fulkse, Abraham Hancy and John Hopkins, Appellees

• Decision Date: 01 January 1830
• Citation: 7 L.Ed. 869,29 U.S. 311,4 Pet. 311
• Parties: JOHN W. KING AND OTHERS, APPELLANTS v. JAMES HAMILTON, JAMES STRICKER AND FRANCES HIS WIFE, HEZEKIAH FULKSE, ABRAHAM HANCY AND JOHN HOPKINS, APPELLEES
• Court: U.S. Supreme Court

29 U.S. 311

4 Pet. 311

7 L.Ed. 869

JOHN W. KING AND OTHERS, APPELLANTS v. JAMES HAMILTON, JAMES STRICKER AND FRANCES HIS WIFE,

HEZEKIAH FULKSE, ABRAHAM HANCY AND JOHN

HOPKINS, APPELLEES.

January Term, 1830

APPEAL from the circuit court of Ohio.

In the circuit court for the district of Ohio, James Hamilton, James Stricker and Frances his wife, late Frances Hamilton, heirs at law of Alexander Hamilton and others, grantees of Alexander Hamilton, filed a bill for a specific performance of a contract entered into between Elisha King, the father of John W. King, one of the appellants, and Alexander Hamilton, on the 8th of February 1815, for the sale of certain lands in the state of Ohio within the Virginia military district, between the little Miami and the Scioto river.

The contract was in the following terms:

'I this day sell to Alexander Hamilton all my lands lying on the Miami river, in the state of Ohio, one thousand five hundred and thirty-three and a third acres, as by patent in my name; also, three hundred and thirty-three and one third, taken off the lands patented in the name of Sackville King, of one thousand acres. This land of three hundred and thirty-three and one third acres, taken from S. King's, is to be done adjoining to the entry of E. King's of one thousand five hundred and thrity-three and one third. He, the said Hamilton, is bound to pay to Elisha King, for this land, nine hundred and forty-six pounds sixteen shillings of current money of Virginia, in three annual payments, beginning December 25, 1805; then to pay three hundred and fifteen pounds twelve shillings. Also, in the years of 1806 and 1807, on each Christ's day, or before, to make the full payments, as is above. The manner and agreement made by us is in payment as tenders: the said Hamilton takes to this country horses, to be sold at twelve months' credit, taking bond and good security, which bonds is lawful tenders from year to year; and, on these tenders being made, the said King is bound to give to the said Hamilton good titles to the said lands. We do bind ourselves, our heirs, executors, administrators, firmly, by these presents in the penalty of two thousand pounds, in this our bargain. Given under our hands and seals.'

When this contract was made, Elisha King had a patent for his entry, No. 1548. Sackville King's entry, No 1549, was held by him without any title to it; and afterwards, in 1812, Sackville King's whole entry was conveyed by him to another, who now holds the same. Alexander Hamilton entered on No. 1548 immediately after his purchase, supposed to be one thousand five hundred and thirty-three and one-third acres; and, with others holding under him, made valuable improvements on it, and still holds possession of the same.

The bill states that Hamilton continued to make payments until the 22d June 1809, at which time, he having paid one half of the purchase money of the tract estimated at one thousand five hundred and thirty-three and one-third acres, King made a conveyance to him of seven hundred and sixty-six and two-thirds acres, supposed to be a conveyance of one half of the same. The bill charges, that there was a large surplus of several hundred acres, and that this sale was in gross; and insists on a conveyance of the whole of the lands in No. 1548. The patent to Elisha King for No. 1548 bears date the 10th of March 1804, and is for 'a certain tract of land containing one thousand five hundred and thrity-three and one-third acres,' as by survey bearing date the 13th of April 1792; and sets forth the metes and bounds, according to this survey.

The bill claims and allowance for the loss of three hundred and thirty-three and one-third acres of Sackville King's entry; and proceeds to state and charge sundry payments since the conveyance of the 22d of June 1809, the last of which was made on the 26th of March, 1818. It then admits that there was due at the time of filing the bill, on the tract of one thousand five hundred and thirty-three and one-thirds acres (deducting the consideration money expressed in the conveyance for seven hundred and sixty-six and two-third acres, the rateable value of the other tract of three hundred and thirty-three and one-third acres which was lost, and all the subsequent payments,) the sum of one thousand seven hundred dollars yet to be paid by Hamilton to King on the contract for the one thousand five hundred and thirty-three and one-third acre tract; which sum they say they were always ready to pay since the death of Alexander Hamilton, if they could have procured a fair settlement; and also, that they are informed and believe that Alexander Hamilton, when the could have a settlement and receive a title, was always ready in his life time to make payments. The bill then goes on to state a number of improvements made on that part of the land not conveyed by King to Hamilton; which improvements are stated to have been made by Hamilton and the other appellees, claiming by purchase under him.

The bill then prays an injunction to a judgment in ejectment, recovered at June term 1824 for that part of the tract of one thousand five hundred and thirty-three and one-third acres, not conveyed. It asks a decree for a conveyance, on payment of the balance; and for general relief.

The answer denies that the sale was in gross, and also that the complainants were at any time ready to perform the agreement, by the payment of the purchase money for the tract which was agreed to be sold; and alleges that the payment of the same was evaded and delayed, although frequent promises of performance were made. To this answer there was a general replication.

At January term 1826, an agreement was entered into by the parties, (which being entered of record, takes the place of an interlocutory decree,) in order to settle so much of the controversy; that there was then due to King, on the purchase money and interest, one thousand eight hundred and ninety-six dollars eighty-eight cents, after deducting five hundred and sixty-six dollars sixty-six cents on account of the land sold, included in Sackville King's patent, which, with interest from that time, was all that was to be paid King, if the court decreed that the contract covered the surplus above one thousand five hundred and thirty-three and one-third acres, in the entry 1548. The times for paying that sum were agreed; and, also, that on the payment, deeds should be executed by respondents, covering the whole land, if the contract was decreed to be in gross, and the injunction be made perpetual against the proceedings in ejectment, &c. This agreement reserved for future decision the single question whether the contract of sale was a sale in gross, or by the acre, as to the land in the entry 1548; and concludes as follows: 'to avoid all dispute, it is the express understanding of the parties, that the whole question concerning the said surplus land is reserved for future decision; and all claims for damages respecting failure in the title for the tract of three hundred and thirty-three and one-third acres of land, in the bill mentioned, are waived.'

At July them 1826, the court decreed, that the sale by Elisha King to Alexander Hamilton, was a sale of the whole of the land in No. 1548; and that the defendant, John W. King, should, within two months, convey to the complainants, in fee simple, with covenants of special warrantry, the lands not already conveyed by E. King to Alexander Hamilton; that the complainants, within two months, should pay the balance agreed, with interest; and that each party should pay their own costs at or before the next term. As to the other defendants, the bill was dismissed generally.

From this decree John W. King appealed to this court.

For the appellants it was contended, by Mr Doddridge:

1. That, under the agreement entered into by the parties to the suit at January term 1826, John W. King reserved to himself the right to urge, as to the surplus land, whatever could have been urged as to the relief claimed for the land not surveyed, as well as every other separate defence which he had a right to make as to the surplus, independent of the agreement.

2. That no evidence was given in the case to establish the fact, that the payments made by Hamilton were for the land not conveyed; and that the payments made were to be applied to the land which had been conveyed. So that, for the land not conveyed, nothing had been paid for a period of nineteen years.

3. No possession of the land not conveved was delivered by King to Hamilton.

4. That the sale was not a sale in gross; and the sale in gross having been denied in the answer, and no evidence given, the court erred in finding for the appellees.

5. That the appellant ought not to be required in a court of equity to yield the title to so large a surplus without compensation, and without the clearest proof of the agreement.

The law of Virginia regulating lands under military grants, declares, that as to the surplus lands in a grant, any one may give the warrantee notice to survey the quantity included in the grant; and if he neglects or refuses to do so, he may, after twelve months, apply to the county court, and have a survey made for himself; and he may then enter the surplus land, and thus become the legal owner of it. This gives the original grantee a right of pre-emption to all the surplus beyond five per cent, which is allowed in every grant. This must be done during the life of the original grantee, and during the continuance of his title; after a sale, and after a descent cast, the right to the surplus is abandoned by the state to the grantee.

In Ohio, there is no court to which an application for a resurvey can be addressed; and therefore the right to the surplus lands in the Virginia reservation of military lands in that state is complete in the grantee, unless it was so great as to amount to a fraud.

The right therefore of King to the whole land...