Peter Wagner, and Sidonia Pierce Wagner, His Wife, John Lawson Lewis, Louisa Maria Lewis, Theodore Lewis, Eliza Cornelia Lewis, Alfred Lewis, John Hampden Lewis, Algernon Sidney Lewis, George Washington Lewis, and Benjamin Franklin Lewis, All Residents and Citizens of the City of New Orleans and State of Louisiana, and John Bowman, and Mary Pierce Bowman, His Wife, Late Mary Pierce Lawson, Residents and Citizens of the State of Tennessee, and George Thompson Resident and Citizen of the State of Kentucky, Complainants and Appellants v. John Baird and Others, Respondents

• Citation: 12 L.Ed. 681,48 U.S. 234,7 How. 234
• Parties: PETER K. WAGNER, AND SIDONIA PIERCE WAGNER, HIS WIFE, JOHN LAWSON LEWIS, LOUISA MARIA LEWIS, THEODORE LEWIS, ELIZA CORNELIA LEWIS, ALFRED J. LEWIS, JOHN HAMPDEN LEWIS, ALGERNON SIDNEY LEWIS, GEORGE WASHINGTON LEWIS, AND BENJAMIN FRANKLIN LEWIS, ALL RESIDENTS AND CITIZENS OF THE CITY OF NEW ORLEANS AND STATE OF LOUISIANA, AND JOHN BOWMAN, AND MARY PIERCE BOWMAN, HIS WIFE, LATE MARY PIERCE LAWSON, RESIDENTS AND CITIZENS OF THE STATE OF TENNESSEE, AND GEORGE C. THOMPSON, A RESIDENT AND CITIZEN OF THE STATE OF KENTUCKY, COMPLAINANTS AND APPELLANTS, v. JOHN BAIRD AND OTHERS, RESPONDENTS
• Decision Date: 01 January 1849
• Court: United States Supreme Court

48 U.S. 234 7 How. 234 12 L.Ed. 681 PETER K. WAGNER, AND SIDONIA PIERCE WAGNER, HIS WIFE, JOHN LAWSON LEWIS, LOUISA MARIA LEWIS, THEODORE LEWIS, ELIZA CORNELIA LEWIS, ALFRED J. LEWIS, JOHN HAMPDEN LEWIS, ALGERNON SIDNEY LEWIS, GEORGE WASHINGTON LEWIS, AND BENJAMIN FRANKLIN LEWIS, ALL RESIDENTS AND CITIZENS OF THE CITY OF NEW ORLEANS AND STATE OF LOUISIANA, AND JOHN BOWMAN, AND MARY PIERCE BOWMAN, HIS WIFE, LATE MARY PIERCE LAWSON, RESIDENTS AND CITIZENS OF THE STATE OF TENNESSEE, AND GEORGE C. THOMPSON, A RESIDENT AND CITIZEN OF THE STATE OF KENTUCKY, COMPLAINANTS AND APPELLANTS, v. JOHN BAIRD AND OTHERS, RESPONDENTS. January Term, 1849

THIS was an appeal from the Circuit Court of the United States for the District of Ohio, sitting as a court of equity.

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The case, as set forth by the complainants, is contained in the following extract from the brief of Mr. Ewing, one of their solicitors.

The bill, which was filed on the 18th day of November, 1840, charges, that on or about the 21st of November, 1783, Brigadier-General Robert Lawson obtained of the State of Virginia a military land-warrant, No. 1,921, for 10,000 acres of land due him for military services in the Revolutionary war, in the Virginia line on Continental establishment.

That prior to the 12th of January, 1788, said warrant was lodged in the office of Richard C. Anderson, then principal surveyor of the Virginia military lands, and that prior to the 4th of June, 1794, divers entries had been made on said warrant, to wit: entries Nos. 1,704, 1,705, 1,706, 1,707, 1,714, 1,715, 1,716, 1,717, 1,718, and 1,719, of 1,000 acres each; and that Nos. 1,704, 1,705, and 1,706 had been withdrawn and re entered, so as to leave Nos. 1,707 and 1,714 the first subsisting entries made for the said Robert Lawson on the surveyor's books.

That on the 4th day of June, 1794, the said Robert Lawson, by deed of indenture of three parts, between him, the said Robert Lawson, of the first part, his wife Sarah Lawson, of the second part, and James Speed, George Thompson, Joseph Crocket, and George Nicholas, of the third part, for the consideration therein expressed, conveyed to the said Thompson, Crocket, and Nicholas, for the uses and purposes therein specified, 2,000 acres of land, described as situate on White Oak Creek, on the northwest side of the Ohio River, being the land mentioned in the first entry made for said Robert on the surveyor's books; which said 2,000 acres of land is averred to be the land embraced, not in a single entry, but in entries Nos. 1,707 and 1,714, made January 12th and February 11th, 1788.

That the said Robert Lawson, by the same deed, conveyed to the said trustees five other tracts of land of 1,000 acres each, described as being the last entries made on said warrant in the name of said Robert Lawson; which, it is averred, embrace the land contained in entries Nos. 1,718 and 1,719, made the 11th of February, 1788; entry No. 1,704, made February 11th, 1793; and entries Nos. 1,705 and 1,706, made the 21st of January, 1793.

Complainants file a certified copy of said deed, aver that the same was duly recorded in Fayette county, Kentucky, and on the 26th of February, 1798, a certified copy, from the records in Fayette county, Kentucky, was recorded in the recorder's office of Hamilton county, in the Northwestern Territory, in which county the lands in controversy lay. The original deed of trust is lost; due search has been made for it, and the complainants

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verily believe that the original was consumed by fire in the recorder's office in Kentucky.

That on the 16th of August, 1796, John O'Bannon procured of Lawson an assignment of 3,333 1/3 acres of said warrant. That Lawson, at the time he made this assignment, was habitually intemperate, and mentally incapable of transacting business. O'Bannon well knew this,—knew of the deed of trust,—and procured the assignment by fraud, and on the false pretencess that he was the locator of the whole tract of 10,000 acres.

That afterwards, on the 25th of August, 1796, O'Bannon, knowing that entry No. 1,707 had been conveyed to the trustees aforesaid, fraudulently withdrew so much of said warrant 1,921 as was entered in said No. 1,707, and caused the same to be entered on the lands in controversy; and, on the 29th of August, 1796, surveyed the same, and returned the plat to the surveyor-general's office.

That prior to the 12th of February, 1799, O'Bannon applied for a patent in his own name for said survey; and that on said day the trustees, in the deed of trust aforesaid, by Joshua Lewis, their agent, filed a caveat against the issuing of patents to the assignees on said warrant 1,921, and with it a copy of the deed of trust.

That O'Bannon continued to urge the department to issue patents on his claims under said assignment; which was for a long time postponed, and, on the 9th of May, 1811, refused or suspended, because said assignment was in violation of the deed of trust aforesaid. That said deed of trust, among other things, directed the trustees aforesaid to convey the 2,000 acres of land first above mentioned to either of the sons of said Robert and Sarah Lawson that the said Sarah might direct, unless it should be necessary to dispose of the same for the use of the family; that the last-named 5,000 acres should be conveyed, 1,000 to America Lawson, 2,000 to John P. Lawson, and 2,000 to Columbus Lawson.

That the said Sarah did not, in her lifetime, direct the conveyance of the said 2,000 acres; and the said trustees did not convey the same, nor any part of the 5,000 acres. That all the trustees are dead, and that the last survivor of them, George Thompson, died on the 22d of March, 1834, leaving the complainant George C. Thompson his only child and heir at law.

That America Lawson intermarried with Joshua Lewis, December 23d, 1797. General Lawson died March 1, 1805, leaving three children, John Pierce Lawson, America Lewis, and Columbus Lawson, his heirs at law. That on the 10th of

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June, 1809, said Sarah Lawson died. That on the 7th of January, 1807, John Pierce Lawson conveyed to Joshua Lewis all his interest in said lands. That on the 1st of June, 1809, John P. Lawson died, leaving Mary P. Lawson, now Mary P. Bowman, his only child and heir at law, who intermarried with complainant John Bowman. That on the 8th of January, 1815, Columbus Lawson died unmarried and intestate, leaving said America Lewis and Mary P. Bowman his heirs at law.

That about the 1st of January, 1813, John O'Bannon died, leaving Robert Alexander and George T. Cotton executors of his last will and testament. That Cotton, who qualified, applied to the General Land Office for a patent on survey No. 1,707, of 965 acres, as executor of said O'Bannon, but the patent was withheld, and the record thereof cancelled.

That, about the 21st of December, 1816, the said Cotton deposited in the General Land Office a paper, purporting to be a certificate of, and signed by, Robert Lawson, dated the 27th of November, 1802, and purporting to be witnessed by J. Bootwright and C. McCallister. Said certificate was false and forged; but by means thereof the patent was procured to be issued.

That Cotton died testate; complainants exhibit a copy of the will of O'Bannon, and of Cotton. The devisees of said John O'Bannon and George T. Cotton are not residents of the district of Ohio; prays process of subpoena against them, or such of them as may be found in the said district; and that they, and such others as will voluntarily appear, be made defendants.

That on the 1st of October, 1830, America Lewis died; on the 20th of June, 1833, Joshua Lewis died, and left complainants their only surviving children and heirs at law. Aver that the remaining 3,000 acres of land, of warrant 1,921, not included in the deed of trust, vested in them as heirs of Robert Lawson, through America Lewis.

That America Lawson, afterwards Lewis, was under the disability of infancy or coverture during her whole natural life; and that at the time of issuing the patent to George T. Cotton, and from that time till her death, she was under the disability of coverture. That Columbus Lawson was an infant at the time of the death of his brother, John P. Lawson, and that he was killed at the battle of New Orleans, on the 8th of January, 1815; and that neither of the trustees in the deed of trust, nor either of the persons under whom complainants claim title, was ever resident in the State of Ohio.

That John Baird, James W. Campbell, Thomas Jennings, Isaac E. Day, Duncan Evans, William King, Victor King, Absalom King, William More, and Christian Snedecher, (who are

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made defendants,) are in possession of, and claim to have derived title to, portions of said tract No. 1,707, of 965 acres, mediately or immediately from George T. Cotton, executor of John O'Bannon, deceased. Call upon defendants to exhibit their title. Aver that they had full notice of the title of complainants and the fraud of O'Bannon; pray subpoena, &c.

An affidavit of search for the deed of trust, and belief that it is lost or consumed, is attached to the amended bill.

The defendants, terre-tenants, severally plead that they are bon a fide purchasers, without notice of complainants' title. They answer jointly, putting in issue the material allegations of the bill; set forth specifically their own derivation of title; aver that the claim of complainants is stale, and that a part of the persons named as trustees have been in the State of Ohio since the execution of the deed of trust, and before the issuing of the patent. That the caveat was filed by Joshua Lewis without authority from the trustees, and that the patent was wrongfully suspended at the General Land Office. They refer to the certificate of Lawson, November 27th, 1802; the affidavit of James Speed, November 20th, 1803; and the certificate of James Morrisson, December 9th, 1816.

To these answers...