Kerr v. Devisees of Moon

• Decision Date: 15 March 1824
• Parties: KERR, Appellant , v. The DEVISEES OF A. MOON, Respondents
• Court: U.S. Supreme Court

22 U.S. 565

6 L.Ed. 161

9 Wheat. 565

KERR, Appellant, v. The DEVISEES OF A. MOON, Respondents.

March 15, 1824

APPEAL from the Circuit Court of Ohio.

Feb. 20th.

This cause was argued by Mr. Scott for the appellant, and by Mr. Brush for the respondents.

March 15th.

Mr. Justice WASHINGTON delivered the opinion of the Court.

The respondents filed their bill in the Circuit Court for the District of Ohio, in which it is stated, that Archelaus Moon was, in his lifetime, entitled to warrants for 4000 acres of land in the Virginia Military District, between the Scioto and Little Miama rivers, in the State of Ohio, under the ordinances and laws of Virginia, on account of his services as a captain in the Virginia line on continental establishment, during the war of the revolution. That, being so entitled, he, on the 8th of May, 1796, in the county of Fayette, in Kentucky, where he resided, duly made and published his last will and testament, which, after his decease, in the same year, was proved and admitted to record in the Court of that county; an authenticated copy whereof, with the probate annexed, is made an exhibit, and referred to as part of the bill. That by this will, the testator devised the aforesaid land to the complainants, his widow and children. The bill then sets forth, that on the 2d of January, 1809, four warrants, for 1000 acres each, were granted to Robert Price, assignee of Josiah P. Moon, and George C. Friend, and Martha his wife, formerly Martha Moon, who are described in the assignment, as the only children and representatives of Archibald Moon, deceased; which warrants were, some time in the same or the succeeding year, assigned by Price to the defendant Kerr, who, in March, 1810, made fifteen entries or locations thereon, amounting in the whole to 3723 acres, leaving 277 acres unlocated. That, some time in the winter of 1811, the complainants gave notice to Kerr of their claim to the said warrants and land, and of their intention to prosecute the same, personally, in writing, and by a publication in a newspaper printed in Chilicothe. That Archelaus and Archibald Moon were the same name and person, and that Josiah P. Moon and Martha Friend were his children by his first wife, and were disinherited by the aforesaid will. That the defendant had notice that the assignment to Price was fraudulent. The bill prays a discovery of the matters so alleged, and a decree that the defendant Kerr assign the evidences of title to the said lands to the complainants, and for general relief.

The answer admits that the defendant purchased from Robert Price, in September, 1809, four several land warrants, for 1000 acres each, for which he paid and secured to be paid to said Price, the sum of 2663 dollars. That the warrants issued for the military services of Archibald Moon, and that they were assigned to the defendant at the time of his purchase. That in March, 1810, and at different times thereafter, the defendant made various entries of land on the said warrants, in the Virginia military district, believing his title to said warrants to be unquestionable; and that the lands so located are owned either by the said defendant, or by those to whom he had sold them. The defendant denies the notice charged in the bill, except that, in the winter of 1811, he saw the publication in which the claim of the complainants was asserted, before which time he had sold a great part of the lands to different persons for a valuable consideration, the principal part of which he had received, and that some of the purchasers have made valuable improvements on the lands. He denies all knowledge of the will, or that the complainants are the heirs or devisees of said Moon.

To this answer a general replication was put in, and a number of depositions were taken and appear in the record. The material facts which they establish are, the execution of Moon's will; the proof of it, and its admission to record in the County Court of Fayette, in Kentucky; the destruction by fire of the Clerk's office of that County in 1802 or 1803, with most of its records; and that an attested copy of the above will was procured and admitted to record in the said County Court, in conformity with a special act of the State of Kentucky, for supplying the evidence of deeds, wills, and other records of the said office, which had been consumed. That the testator was sometimes called Archelaus, and at other times Archibald; and that he had four children by his first wife, of whom Josiah P. and Martha were two, and six children by his last wife, who, with his widow, are the plaintiffs in this suit.

After a reference to the Master, and the coming in of his report, a final decree was made thereon, that the defendant, Kerr, assign to the complainants all the warrants, entries, and surveys procured under the warrants granted to Price, and by him assigned to the defendant; that Kerr was...