Miller v. Kerr
| Decision Date | 01 February 1822 |
| Citation | 7 Wheat. 1,5 L.Ed. 381,20 U.S. 1 |
| Parties | MILLER and Others v. KERR and Others |
| Court | U.S. Supreme Court |
THIS cause was argued and determined at the last term, but omitted to be reported.
On the 29th of May, 1783, Seymour Powell, heir of Thomas Powell, obtained a military land warrant from the Register's office in Virginia, No. 679, for 2663 2/3 acres of land 'due in consideration of services for three years, as a lieutenant of the Virginia Continental line, agreeably to a certificate from the Governor and Council, received into the land office.' A part of this warrant was entered in the Military District reserved for the officers and soldiers of the Virginia Continental line, on the 16th of June, 1795; and, on the 30th of October, 1796, 789 acres, part thereof, was surveyed in the name of the said Seymour Powell, which survey was on the 1st of March, 1797, recorded in the office of the surveyor-general. On the 10th of July, 1800, Justus Miller purchased this land, and took an assignment of the entry and survey, and obtained a patent therefor in February, 1808.
John Neville made an entry on the same land in May, 1806, on a military land warrant, for services in the Virginia Continental line; and his heirs, the respondents, obtained a patent therefor on the 30th of April, 1807.
They have brought an ejectment against the heirs of Justus Miller, who having, as they say, the elder equitable, though the junior legal title, have filed this bill to enjoin proceedings at law, and compel Neville's heirs to convey the legal title to them.
In their answer, Neville's heirs assert that Thomas Powell never served in the Virginia Continental line, but that his service was performed in the State line, and that the certificate of the Governor and Council, on which the warrant was issued, was expressed to be given for services in the State line, so that the warrant issued fraudulently, or by mistake. They farther insist, that as the officers of the State line could not enter their warrants in the district reserved for the Continental line, the plaintiffs ought not to be permitted to avail themselves of a title founded in mistake, to defeat their legal title.
The testimony taken in the cause shows, that the records of the office of the Executive Council of Virginia have been examined, and that no certificate has ever been granted to Seymour Powell, as the heir of Thomas Powell, for services in the Virginia Continental line, but that a certificate was granted to him for military services for three years in the State line.
In the land office, too, records are to be preserved of all the warrants which issue, and of the certificates on which they issue. This office also has been searched, and no certificate is found of any military service rendered by Thomas Powell, in the Virginia Continental line, nor is there on record any warrant for such service; but there is a certificate given to Seymour Powell, for his military services as a lieutenant in the State line; and a warrant on record for those services, bearing the same date and number with that on which the land now in controversy was entered.
There is no proof, and no reason to believe, that Thomas Powell ever performed any military service in the Virginia line on Continental establishment.
It is, then, apparent that the register of the land office has, by mistake, given a warrant for military services in the Continental line, on a certificate...
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