
    Heirs of Smith v. Caleb Stark and others.
    When, under a law of Congress, the patent issues for lanas to revolutionary soldiers directly to the person who performed the service, or his heirs, no equitable claim can be sustained to the ownership of such lands, by a purchaser, without proof of sale, made in person or by any one authorized to sell.
    This was a bill in chancery, adjourned from the county of Tuscarawas. The complainant alleged ’that in the year 1800 he purchased from a broker in Philadelphia,for account of *himself and a partner, the warrant upon which the land in controversy was located. This warrant was originally issued to Gen. John Stark, in part compensation for his revolutionary services, and the law providing for its appropriation forbade its being assigned, so as that a patent could issue to any other person than such as the warrant was issued to or his heirs. The bill alleged that the warrant was purchased of Franklin Stark, who was authorized to sell it.. That the complainant, esteeming him the owner, procured its location, obtained the patent, and took possession of the land it covered. That he had held the possession and made improvements until ejected in 1834. That he had paid all the taxes, and that the grantee of the warrant had, by neglecting it, virtually abandoned his claim under it, and recognized the lawful ownership of the complainant.
    The answers deny that General Stark had ever authorized F. Stark to sell, or had sold his warrants, and deny the authority of the brokers to sell them, insisting upon their right and upon the policy of the law that protected their interests against unadvised assignments.
    The testimony was voluminous, but none was adduced showing a transfer of his right by General Stark, or an authority to any one to make sale of his warrants.
    S. W. Culbertson, for complainant, maintained
    1. The soldier performed a service for the government of the United States, for which he could support no action, but in equity was entitled to a compensation.
    2. That the government of the United States, sensible of his rights, by its acts of 1796, etc., made provisions for him, by granting him a warrant for land. In doing this, the government paid him, only what, in equity, it owed him, and what it had induced him to expect.
    3. That when the government granted him the warrant, it invested him with a right of which it could not, by any subsequent act, divest him but by his consent; he had paid for the warrant, and received it as legal evidence of his claim for the quantity of land specified in the warrant.
    4. Having received the warrant, it became the absolute property of the soldier, as much as if the government had paid him by a check on the United States treasury; of that ^warrant he had as much right to dispose as if it had been a check.
    
      5. Warrants issued to J. and A. Stark for the lands in the bilí, and when the warrant of Archibald was issued, he was dead; ho died without heir of his body and intestate, leaving a father and brothers'; the father was his heir, as per answer. These warrants were delivered to General Stark, who gave them to his son Benjamin Franklin Stark, who sold them to complainant, by his agent, Thom, for three hundred dollars, received the cash, which was the then selling price as per Thom’s deposition, John Stark and Mrs. B. F. Stark’s depositions. By this act John Stark and his son B. F. Stark, divested themselves of all equity to this land, and their equity by the sale and receipt of the money vested in the complainant, the purchaser.
    6. These warrants were considered but as choses in action, and passed as bank notes, with or without indorsement, and whether indorsed or not, in this case, the equity is the same, as there is proof of payment.
    7. The warrants came to the hands of complainant by purchase, in 1800, and August 6, 1801, patents issued as in the bill set forth, and inured to complainant’s possession, who purchased the right of Johnson, his partner, as per Johnson’s deposition, and procured his quitclaim deed.
    That complainant has been in possession ever since; paid the taxes and made improvements, which are a substantial benefit to the owner of the land.
    From the facts as made out by complainant, it would appear that his equity is complete, unless the testimony of respondent shows a better equity, or that the law of Congress bars the complainant’s right.
    1. Respondents deny the sale or delivery of the warrants by General Stark to his son Franklin, and Franklin’s sale to complainant, but the proof is complete against them.
    2. He alleges that from the close of the revolution General Stark did no business.
    General Stark died in May, 1822, and eight or ten years before his death, say in 1812 or 1814, as Caleb Stark alleges, he was appointed his guardian, owing to his alienation of mind; and yet he says that in 1817 Smith called upon him to say that he had purchased those warrants, and he, Caleb, offered to go with him to his father to procure the necessary information. This allegation of Calob Stark, and the testimony of A. Gamble and Rawell, go to prove that General Stark was capable of doing business when he gave these warrants to his son Franklin, who sold them, to complainant in 1800.
    3. Caleb Stark denies knowledge of the sale of these warrants, and yet admits that in 1817 Smith told him of it, and this was long previous to his purchase. His whole answer is false and contradictory in itself; he purchased with full notice. See John Stark’s deposition.
    4. Caleb Stark never looked after these lands till 1824. See his letters to Lovemore; and yet he says that at one time his father asked him how he was coming on about recovering his army lands.
    5. If the act of Congress of March, 1800, had never been passed, there could be no difficulty as to the decree that ought to made.
    6. It remains for complainant to surmount this difficulty, and he attempts it in this way: First, that the warrant vested an absolute right in the warrantee, which Congress could not after take from him; that he had paid a fair consideration for it; that he had a right to dispose of it as he pleased, and having sold and received a bona fide consideration for it, his equity becomes vested in the vendee; that the warrant, like a bond, was conclusive evidence of the holder’s right, unless fraud or satisfaction was proven, . none of which is attempted.
    That Congress, being omnipotent in such cases, could have refused to issue their patent to an assignee, between them and whom there was no privity of contract, is admitted; but having, in compliance with their contract with the soldier, issued their patent to him, they could then have no further control over the patent or the patentee. The patentee then became the trustee of the vendee, and held the land for him, and it now becomes the province of equity to make him do equity. The complainant, in 1800, paid to the warrant holder and owner three hundred dollars, and the taxes ever since till very lately. John Stark in his lifetime, from 1800, when the warrant issued, till his death in 1822, never looked after this land; and why? Because he was an honest man, and knew he had sold it, and the purchaser had paid for it. Why did Caleb, the guardian, so long sleep upon the rights of his father ? And why did he sleep upon the rights of the heirs afterward' till 1824, when he discovered the value of the land and the prospect *of a legal recovery? He was told by his brother John, who inherited a part of his father’s integrity, that his father had no right to this land, and the reason why he had not. It remained for Caleb to sully the name of Stark.
    But another difficulty may possibly be made. There was first a tract of country set apart by Congress to satisfy the soldier in a certain way and manner; and after the majority of soldiers’ warrants were supposed to be classed and located, fifty quarter townships were selected from the military district to be divided up into one hundred acre lots, and patents were to issue exclusively to the soldier for these lots, notwithstanding any previous sale of the warrant by the soldier — a law apparently well calculated to make the poor soldier a rogue, and the present case is a strong evidence of it. How can this law constitutionally interfere with the rights of the parties ? The warrants were the property of the soldiers; they sold them and received the payment. Will equity let them have both the money and the land? Surely not both. But this is not a controversy between General Stark and his vendee, but one between two claiming vendees. General Stark divested himself of his right in giving his warrants to his son; this son sold his right to the complainant, and now Caleb Stark claims by purchase from the heirs of General Stark. Is the equity of General Stark and the equity of his children the same? ' It is thought that the act of Congress had an eye solely to the soldier, to the laborer, and not to those who came after him; their rights were to be determined, as the rights of other citizens, except where the patent issued to the heir, which would not be done but by the production of the warrant, or on proper proof that it had never issued. This is a question between purchasers; and the maxim quiprior est tempore potior est jure is also a good maxim in equity, where the equity is like the present.
    Atherton, for defendants:
    Defendants contend the lands given to revolutionary soldiers, on account of military services, were a bounty, in consideration of fidelity in the performance of those services, and an encouragement to engage therein, not differing in principle from the case of soldiers in the French war, whose bounty in land was provided for by the royal proclamation, 1763. L. L. *U. S. 30, 168, ed. 1817. The only distinction (besides personal application in the latter case) is, that the former was prospective, the latter retrospective, and neither recognizing the privilege of assigning nor the right of assignees. The warrants were not, and being the bounty of the United States, could not, be issued as a,payment, but were intended as a testimonial that the soldier was entitled to the land as a gratuitous and enduring memorial of his patriotism, and without reference to the length of the time of service, provided “ he continued to serve until the close of tho war, or was discharged by Congress; ” and Congress expressly declared, that it would “ not grant' lands to any person or persons claiming under assignment of any officer or soldier.” Resolutions 16, 18, 20, Sept. 1776, L. L. U. S. 168. An ordinance of July 9, 1788, authorized warrants to issue to assignees of soldiers, lb. 169; but no act of Congress having made a grant of land to assignees of warrants prior to the location of the lands in question, excepting three hundred acres to Ithamar Canfield, by the act of May 10,'1800, lb. 174; and that on condition “ the transfer’s and powers of attorney were made out pursuant to the rules in such cases established at the war office;” the defendants contend that the right of General John Stark to the lands in question can not be affected by any supposed transfer or assignment; or if the above-mentioned act in favor of Canfield be construed to vest the right to the land in the assignee of the warrant, by virtue of the assignment merely, and to have that influence in other cases, then it is incumbent on the complainant to show in his bill, and prove the “rules established in such cases in the war office,” and that assignment was made in conformity to them; neither of which is done in this ease. The defendants contend that no other mode of transferring land warrants than such as had been ascertained by law could be valid to vest the equitable right to the land in any holder, and that the practice of transferring by delivery, had never been thus ascertained. If, however, it should be held that a delivery of the warrants was sufficient to transfer the equitable right to the land, defendants contend that in this case the fact that General Stark did deliver or transfer them not being proved, and in defendants’ answer denied, can not be taken as true. The testimony on that subject is mere narration of reports. It only proves that the warrants came into market through the agency of B. F. Stark, and not *that General Stark had authorized the act, or was even connusant of it.
    The defendants contend that previous to the issuing of the patents, the interest of the warrantee could not be parted with by deed or assurance of conveyance only. Allen’s Lessee v. Parish, 3 Ohio, 107. That no evidence of declai-ations of General Stark, that he had given the warrants to any one, or that he intended to do so, can be available to pass the lands, unless as corroborative evidence of his having made such deed or assurance, and in the case of its being lost, or in the possession of the adverse party, lb. And even then, other evidence than the declaration of the co-heirs would seem necessary, lb.; especially when, as here, no such deed or assurance is charged, proved, or pretended by complainant. Defendants contend that the military lands were always subject to the control of Congress, to direct the manner of location of warrants, or to suspend them altogether. That the law designating the territory on which to locate operates as, and is a grant to the soldier and his legal representatives, of his quantum of land; no matter whether in classes of four thousand acres or one hundred acre lots; that between government and the assignee of the warrant, there never was a privity of contract; that any claim of an assignee, without a legal conveyance or contract to convey the land, confirmed after location, is a fraud on the soldier and on the government, or rather on the fund for satisfying the resolution of 1776. That though location was first authorized in four thousand acre tracts, and a patent ordered by law to be granted to the holder or locator, yet. that the law did not recognize the holder or locator as the grantee of the land; that such ¡jalen tee must, in equity, be held as the trustee of the soldier, whenever the soldier can designate the location of his warrant; a matter now, probably, very difficult, if not,impossible in most cases, since the burning of the war office.
    The defendants contend that the act of March 1, 1800, L. L. U. S. 173, swept away the pretensions of all assignees of unlocated warrants, so far as the fifty quarter townships wore concerned, not by invalidating contracts made bona fide, but by repealing all former laws in relation to the manner of locating. That it was competent for government to do so; for, until that time, after the first location, various acts were passed extending the time of location to a. d. 1818, Id. 171, ^without which they would have been barred, lb. Id.; that by the act of March 1,1800, besides providing for a new mode of location on the fifty quarter townships, the government made a grant (Allen’s Lessee v. Parish) of the land. directly to all the soldiers whose warrants were yet unlocated. That the warrants, yet afloat by the true meaning of that act, proved the amount of the grant; or if no warrant had been issued, the amount would be ascertained as in the first issuing of warrants; or if the act can not be construed as making a specific grant, as above contended, the almost unlimited frauds committed on the soldiers and the fund by speculators demanded of the government a restriction. The rights of honest purchasers, it might be presumed, would be respected by the patentee and confirmed by deed,"as in Smith v. Shaw, Sup. C. U. S., Jan. Term, 1834. But it could never have entered into the head of any but a rash speculator that a claim founded on no evidence of sale, no conveyance or assurance, in defiance of the voice of the law and the universal cry of fraud against him, would, in equity and good conscience, be confirmed, merely because he held the warrant, or could prove some long-forgotten tale of the intention of the soldier at some time to dispose of it in a particular manner; or by pretending, as in this case, that he and his partner had claimed the land, and that the one had released to the other 1 The defendants contend that all the acts and doings of the complainant, as set forth in his bill in relation to the lands in question, amount to no more than an attempt to set up a claim. He does not show that he ever applied to Gen. Stark for a title; nor does he, nor can he offer an excuse for the omission, or with propriety aver that he was ignorant of the residence of Gen. Stark; for his residence, like his fame, is apart of the history of our revolutionary struggle.
    The delendants contend that even if, as between Gen. John Stark and complainant, equity and good conscience would decree for the complainant; yot, in this case, the decree must be for the defendants, as he purchased from the other heirs without any knowledge that Gen. Stark had ever given or intended to give the warrants to B. E. Stark. This knowledge is charged in the bill, denied in the answer, and only seems to be proved by the testimony of John Stark, the son; and his testimony given subsequent to conveyance of his share to the defendants, while the defendants’ answer in this ^particular is confirmed by numerous letters to the defendants, and their answers to some, filed in this case at the request of complainant himself.
    The delendants contend that they are not chargeable with laches in neglecting to prosecute their claim. The judgment at law, which complainant seeks to enjoin, shows that for the last six or eight years he has been pursuing his claim. He contends that the existence of that judgment furnishes sufficient answer to that suggestion. But they contend that the complainant, in neglecting from the year 1801 to the year 1822, to apply to Gen. Stark, in his lifetime, for a conveyance, and neglecting for ten years longer to present his claim satisfactorily to a court of equity, evinces a consciousness of the entire rottenness of his pretensions, of which the court will necessarily take notice.
   Judge Lane

delivered the opinion of the court:

The first step in proof, which must be made by the plaintiff, is to show a lawful authority in the broker of Philadelphia to make the sale under which the plaintiff derives his title. For the defendants are heirs, holding the estate of their ancestor, from whom no equities should be exacted, except those which spring from a valuable and meritorious consideration. The proofs adduced to show this fact are voluminous, and it will serve no good purpose to repeat them; it is enough to announce that they do not show the authority to make the sale with sufficient certainty to lead us to invade the title of the heirs Injunction dissolved.

Bill dismissed.  