
    Coan v. Flagg.
    I. A survey, embracing sixteen hundred and eighty-two acres, on an entry of lands in the Virginia Military District, made on a warrant for five hundred acres, is. by reason of such excess, fraudulent as against the government of the United States, and vests in the owner of the warrant no estate or interest in the land, which the government of the United States, on principles of equity, is bound to protect by issuing a patent for the whole or any part of the survey.
    3. Whether the act of Congress of February 18, 1871, granting to the state of Ohio, lands in the Virginia Military District “remaining unsurveyed,” passed title to lands covered by a previous survey voidable on account of excess in the quantity of land embraced, qucere ? But, if it did not, the title to such land sold by the Ohio Agricultural and Mechanical College, grantee of the state of Ohio, to a purchaser for a valuable consideration, was ratified and confirmed to such purchaser, by the 4th section of the act of May 37, 1880.
    Error to the District Court of Scioto County.
    The original action was brought by William J. Flagg, defendant in error, against John A. Coan, plaintiff in error, to quiet his title to certain real estate within the Virginia military district, and known as survey 15,882, containing 1,682 acres, and also known as lot No. 99 in the allotment of lands granted by the United States to the state of Ohio by act of Congress passed April 18, 1871, and afterwards by the state of Ohio to the Ohio Agricultural and Mechanical College.
    The plaintiff Elagg, in his petition, claimed to be the owner of the legal title to, and to be in possession of the whole of said tract.
    The defendant, Ooan, by his answer, disclaimed title or possession to that part of survey 15,882 which lies south of a line drawn from the northwesterly corner of survey 11,301 to the easterly corner of survey 15,771, and, denying the plaintiff’s title and possession to that portion of survey 15,882 north of the line described, asserts title and possession in himself.
    The original suit was commenced .in the court of common pleas of Scioto county, October 19, 1875. From the decree of the common pleas an appeal was taken to the district court, wherein a final decree was rendered in favor of the plaintiff, Flagg, at the December term, 1877. On a motion for a new trial, by defendant, Coan, being overruled, a bill of exceptions containing all the testimony was made part of the record.
    
      M. W. Evans, John G. Marshall, Dwncan Zvomgston, and James M. Dawson, for plaintiff in error :
    The vital question of the whole case is, whether the entry and survey made in the name of the heirs of Thomas Gordon was valid. After Congress had accepted the cession of these lands from Virginia, it passed various resolutions and acts concerning the same. The act of August 10, 1790,2 IT. S. Laws, 179, provided for locations, entries, surveys and patents on these lands. The act of March 23, 1801, 3 U. S. Laws, 592, required locations to be completed within three years, and parties to return their surveys'within five years.* Another act was passed March 2, 1807, 1 U. S. Laws, 92. This extended the time for making locations to three years from March 23, 1807, and five years to return surveys. In this act, on account of great litigation which, had arisen between conflicting entries and surveys, what has since been known as the proviso of 1807 was incorporated. This proviso reads as follows: “ Provided, That no locations as aforesaid, within the above mentioned tract, shall, after the passing of this act, be made on -tracts of land for which patents had previously been issued, or which had previously been surveyed, and any patent which may, nevertheless, be obtained for land located contrary to the provisions of this section, shall be considered as null and void.” The time for making locations and returning surveys has been extended by Congress from time to time, as follows: March 16, 1810, 5 and 7 years, 4 U. S. Laws, p. 281. November 3, 1814, 3 and 5 years, 4 U. S. Laws, p. 714. February 22, 1815, 2 years, 4 ü. S. Laws, p. 805. April, 11, 1818, 3 years, 1 sess. 15 Cong. p. 37. February 9, 1821, 2 years, 2 sess. 16 Cong. p. 10. March 1, 1823, 2 and 4 years, 2 sess. 17 Cong, p. 73. May 20, 1826, 3 and 5 years, vol. 4, G. S. 189. April 23, 1830, 2 years, vol. 4 G. S. 396. March 31, 1832, 7 years, vol. 4 G. S. 500. July 7, 1838, 2 years, vol. 5 G. S., 262. August 19, 1841, 3 years, vol. 5 G. S. 449. July 29, 1846, 2 years, vol. 9 G. S. p. 41. July 5, 1848, 2 years, vol. 9 G.'S. 245. February 20, 1850, 2 years, vol. 9 G. S. 421. May 27, 1880, 3 years, 2 sess. 46 Cong. p. 143. Each of these statutes, except the last, which is only one of construction, substantially reenacted the proviso of 1807 before referred to.
    The only objection to the validity of the survey is on ac-court of the alleged surplus therein. The commissioner of the general land office, the common pleas and district courts of Scioto county, all decided this survey invalid and void on account of the surplus, in face of the laws of Virginia and of Congress, and the decisions of the highest courts of Virginia, Kentucky and Ohio, and the supreme court of the United States. The act of Virginia of May, 1779, 10 Henning’s Statutes, 51, and before referred to, provides that surplus should vitiate no grant or location, and provides how the surplus might be ascertained and disposed of, giving the owner of the survey the right to perfect his title thereto. This law of Virginia is a rule of property affecting this land as fully in force to-day as any statute of the state, or of the United States, affect-ting the same. "When the United States took title to these lands from Virginia on March 1, 1784, it was only the naked legal title in trust for the officers and soldiers of Virginia upon Continental establishment. The right of these Virginia soldiers to have their bounties satisfied out of these lands could not be defeated by any clerk sitting in an office in Washington and writing letters in the name of the commissioner of the general land office.
    But Virginia alone has not legislated on this question of surplus. Congress has also legislated on the question of surplus, a fact which was overlooked by the commissioner of the genera] land office and the courts below. In the act of May 20, 1826, 4 U. S. Laws, 189, section 2 reads as follows: “ That no patent shall be issued by virtue of the preceding sections, for a greater quantity of land than the rank or term of service of the officer or soldier to whom, or to whose heirs or assigns, such warrant has been granted, would have entitled him to under the aforesaid laws of Virginia; and whenever it appears to the secretary of war that the survey made by virtue of any of the aforesaid warrants is for a greater quantity of land than the soldier is entitled to for his services, the secretary of war shall certify on each survey the amount of such surplus quantity, and the officer or soldier, his heirs or assigns, shall have leave to withdraw his survey from the office of the secretary of war and resurvey his location, excluding such surplus quantity, in one body, from any part of his resurvey, and a patent shall issue upon such resurvey, as in other cases.”
    These sections clearly establish that the validity of a survey is not affected on account of surplusage, and only gives the commissioner of the general land office the right to refuse to issue a patent until a resurvey, including only the correct quantity authorized by the warrant, is made. Under the proviso of 1807 a survey, once made, no matter how informal, appropriated the land located and withdrew it from subsequent location. So far as the defendant in error, Flagg, is concerned, since the cession of February 18,1871, he cannot be regarded in any better light than a subsequent locator. We refer the court to the following cases in which the proviso of 1807 has been construed : McArthur v. Dunn, 7 How. 262; Jackson v. Clark, 1 Pet. 628; Galloway v. Finley, 12 Pet. 264; Parker v. Wallace, 3 Ohio, 490; Stubblefield v. Baggs, 2 Ohio St. 217; Thomas v. White, 2 Ohio St. 540; Price v. Johnston, 1 Ohio St. 394. In this case, in quoting Justice McLean’s opinion in Lindsay v. Miller, 6 Pet. 666, there is an error of the printer on page 394, which makes Justice McLean say the contrary to what he actually decided. The quotation reads in Price v. Johnston, “ There can be no doubt that Congress did [not] intend to protect surveys which had been irregularly made, etc.” The word “not,” in brackets, is not in Justice McLean’s opinion. McArthur v. Gallaher, 8 Ohio, 515.
    The word “ unsold,” as used in the act of February 18, 1871, was utterly inappropriate. Not a foot of ground in this district was ever sold in the first instance, but it was all given away in military bounties. Had the term “ unappropriated ” been used it would have been strictly correct. Doubtless the framer of the bill had in his mind other land districts in which Congress sold its lands. We think the court in passing upon this statute must necessarily construe the word “unsold” as though it read “ unappropriated.” Let it be given such construction, and under the construction given by the courts, to the proviso of the act of March 2, 1807, all surveyed land, regardless as to the validity of the entry or survey, has been withdrawn from subsequent location, and as to all after claimants becomes the same as surveyed and sold land, and is not within the terms of the act’of cession of February 18, 1871. In construing the words “ unsurveyed ” and “ unsold,” the court will take into consideration the intention of Congress, the effect the act will have upon .titles and the object of the grant. Did it intend to convey to the state the surplus included in unpatented surveys, as well as the unsurveyed and unsold lands ? The reasons stated for the passage of the act, as shown by the remarks made in the House and Senate upon the presentation of the bill, gathered from the Congressional Globe, were that the warrants for services in the Virginia Line upon Continental establishment, had all been located and satisfied; that the tracts remaining unappropriated were composed of wild and barren hill lands, unfit for cultivation, and valuable only for the timber remaining thereon,' and which was being rapidly destroyed by trespassers. The United States was unwilling to undertake to protect the value yet remaining in the unappropriated lands, and in order that they might be valuable to some one, they were given to the state. Consider the fact that by the passage of this act, Congress only intended to get rid of lands not required for the purposes of > the trust for which it held them; to place them where they might become productive and tax-paying; that neither-the state of Ohio or its college ever paid any consideration for the lands and had no equitable rights whatever in them ; that the owners of these surveys had paid valuable considerations therefor, either in services, blood, or money ; and can it then "be said Congress intended to give the state, or its assignee, a right which the United States never claimed, and which it expressly protected in the acts of 1826 and-1838, and which would, if carried to its legitimate result, unsettle many titles?
    It was claimed in the court below that the survey was void because it operated as a fraud upon the United States. In the court of common pleas plaintiff in error alleged in his answer that defendant in error,;in procuring the title from the college, had practiced stupendous frauds upon the. ■ latter, and was ready with evidence and anxious to substantiate it, but the court said to him, it is none of your concern as to a fraud practiced by Elagg upon the college; you are not the party to complain; and sustained a demurrer to the fifth answer. But here no fraud was practiced on the United States. It was advised of the surplus, and the commissioner of patents refused a patent until the matter of the surplus was disposed of. Had the commissioner disposed of this surplus under the acts of May 20, 1836, July 7, 1838, or the Virginia act of itay, 1779, § 4, there would have been no difficulty. The surplus is not a fraud upon the college, for Congress reserved the surveyed and sold lands, and it has paid no consideration for tlie grant, valuable or otherwise, while the owner of this survey has.
    A surplus does not vitiate a survey. Taylor v. Brown, 5 Cranch, 249; Holmes v. Trout, 7 Peters, 208; Laum v. Latham, Wright, 309; Gill v. Towler, 3 Ohio, 209. If, for the sake of argument, it be admitted that the cession of February, 1871, conveyed this land to the state of Ohio, and with the decision of the commissioner was equivalent to a patent, which we think the court cannot find in any event, yet the equities of the owner of the, survey can be asserted and protected. Marquez v. Frisbie, 11 Otto, 473; Johnson v. Tousley, 13 Wall. 73; Bird v. Ward, 1 Mo. 398; Shepley v. Cowan, 91 U. S. 330; Danforth v. Monical, 84 Ill. 456.
    
      Moore da Newman and W. A. Hutchins, for defendant in error:
    The term “ unsold lands ” -would seem to imply that some had been sold, and yet, strictly speaking, none of the lands embraced in the Yirginia military district, up to that time, had been “ sold.” The term was used, we suppose, to exclude from the grant all of the lands the legal title to which, under the provisions of the law, had passed out of the government, and had become vested in another,, as by patent issued. The courts had held that while provision was made for the appropriation of the lands by entry, survey and patent, and that this was the usual way for disposing of lands, still, if there had been no entry or survey, or if the entry and survey, or either of them, were defective, or were void, but the government had issued its patent granting the land, the title would pass, and the land could be treated in the broad sense as “ sold ” land. Hoofnagle v. Anderson, 7 Wheat. 27; Stubblefield v. Boggs, 2 Ohio St. 216; Thomas v. White, 2 Ohio St. 540. •The term “ sold,” as contra-distinguished from “ unsold ” lands, covered by the cession to the state, we submit, had reference to and embraced the lands for which the government had issued its patent, and thereby parted entirely with its title. In 1871, when the act of cession was passed, most of the lands in the military district, at least the valuable portion of the same, had been fully appropriated to satisfy the warrants allowed for bounties, and patents had been issued by the government therefor ; so that nothing remained in it in respect thereto that could be the subject of the grant. And of course that class of lands would necessarily be excluded by the terms of the cession.
    At the same time there was another class of lands in the district, the legal title to which still remained in the government; but with a view to their application to the satisfaction of warrants granted for bounties, everything had been done that would entitle the holders of the warrants to their patents, and nothing was left but to issue the same therefor; still, even in the broad sense, they could not be treated as “ sold lands.” And while this class ought not to have been the subject of cession to the state, strictly, they were neither sold nor unsold lands, and, therefore, their exemption in the act of cession under the description of “ unsold lands,” was indefinite, and might lead to confusion. Hence, we suppose, the other term in the act, “ unsurveyed lands,” was used so as to embrace, in connection with the class first named, “ unsold lands,” all of the lands in the district intended to be ceded to the state.
    The law authorizing the holders of warrants to locate the same, ceased to operate January 1, 1852, and since that time there has been no law which would authorize an “ entry,” and the most that could be done, if an entry had been made prior thereto, was to make and return their surveys. And on March 3, 1857, even this right was terminated.
    Prior to January, 1852, tbe district was open to locations and entries to satisfy military warrants, and by acts of Congress, well-known rules were prescribed to regulate the conduct of the holders of warrants in making their entries and surveys, so as to avoid conflict or interference in respect thereto. The most notable of these was the proviso attached to the act of Congress passed March 2, 1807, and continued in force as long as there was any law authorizing entries to be made. The proviso itself was suggested, doubtless, by the constant conflict that was occurring between the holders of warrants in locating the same, and in making their entries and surveys. It was to operate upon them, and was to obviate, so far as possible, the conflict so constantly occurring in respect to the entries and surveys then being made.
    In the language of Chief Justice Marshall, in Jackson v. Clark, 1 Pet. 638, “It was most truly an enactment of repose.” It was intended as a prohibition upon subsequent locators from any interference, or even inquiry in respect to lands already entered and surveyed. As to the subsequent locator, the land was withheld from location. In regulating the satisfaction of warrants by the appropriation of lands set apart for that purpose, Congress had power “ to withhold from location any portion of the military land;” and having by the proviso referred to withheld from location all lands previously patented or surveyed, it would follow, necessarily, that any attempt to enter lands so expressly withheld from location, would be null and void. It is enough to know that such subsequent locations by the holders of warrants were a nullity, because Congress had so declared, and it had the power so to declare. Stubblefield v. Boggs, 2 Ohio St. 219; Jackson v. Clark, 1 Pet. 638, 639.
    It is apparent, therefore, that the proviso of 1807 was intended as a rule for the control of the holders of warrants in locating and appropriating lands in the military district in satisfaction of the same, and nothing else. It is a part and parcel of the law authorizing such locations, and prescribing how and when it may be done. And its only purpose was to withdraw certain lands from location, and prohibit the holder of a warrant from subsequently entering or surveying the same. Its entire scope was to operate upon and restrain the parties holding .warrants in locating the same. It in no way, by its terms, affects the title of the government to the land, or its right to dispose of it, as it may see proper, or the right of any one acquired under the government to the land in any other way than by an entry and survey in satisfaction of a military warrant.
    The Conclusion, therefore, is irresistible that when, as in 1852, the right to enter and appropriate lands to satisfy military warrants ceased, or, at all events, in March, 1857,. when the right to make and return surveys of lands previously entered terminated, the proviso of March, 1807, so far as it could operate upon subsequent transactions, was at an end. It had served its purpose, and had become functus oficio. In 1852 Congress provided for the satisfaction of all the military lands, with land scrip, and thereby withdrew the military lands from appropriation for that purpose, and assumed control of it for some other purpose. And in so doing, all the rules prescribed for its appropriation, while subject to entry, survey and patent, to satisfy military warrants, ceased to operate, and it was for Congi’ess to prescribe the mode by which the remaining lands could be appropriated. Whatever conflict there was, or could be among those who had attempted to locate and appropriate the lands to satisfy military warrants, while there was a law authorizing it, would have to be controlled "by the acts of Congress in existence when such attempt was made, including, we may concede, the proviso of March, 1807; but as to the government, or those claiming under it by virtue of some appropriation, other than by entry and survey to satisfy a military warrant, such acts of Congress would in no way control.
    II. It is apparent that in 1871, when the act of cession to the state of Ohio was passed, the purpose of the United States was, by that act, to dispose of and transfer to the state all of the lands in the district not before that time actually appropriated, as provided by law, to satisfy military warrants. As long ago as 1852 the authority for entering these lands ceased to operate, and after 1857 there was no law by which entries made prior to 1852 could be surveyed and patented. In 1852 provision was made for satisfying with land scrip the unsatisfied warrants, and in 1857 the land office was closed. From that.time until 1871 there was no provision of law by which a single acre of these lands could be obtained from the government. They had been withdrawn from location to satisfy military bounties, and there was no law authorizing their sale. They were wholly useless to the .United States, and there was every reason why some definite disposition should be made of them, so that the government should be relieved of all burden in respect to every pai’cel in the district remaining under its control. And this, we submit, is just what was done by the act of cession. There was no reason why any portion of the land which really remained under the control, or was undisposed of by the government, should be excepted from the grant. And none was excepted. The grant is sweeping in its terms, and embraced evei’y acre not already appropriated as against the government under the provisions of the law authorizing such appropriation. Whatever title or estate remained in the United States was granted to the state. The only limitation, therefore, there is upon the title so acquired by the state, is the limitation that was upon the title of the United States at the time of the act of cession. -
    III. The term “surveyed'land,” in the Virginia military district, may be said to have had two significations, depending upon the parties to be affected. A “ survey,” as it was to be understood by one who would seek, by virtue of a military warrant, to enter and survey the land covered by it, was “ a bona fide attempt to locate lands under a warrant by entry and survey.” Because, “the effect was to withdraw such lands from subsequent location upon another warrant, whether such entry and survey was valid or void.” Price v. Johnston, 1 Ohio St. 397.
    But as to the government, by the term “survey” was meant not simply a bona fide attempt to locate lands under a warrant by entry and survey, but a legal, valid swrvey, such as would appropriate the land as to and against the United States. If void, no title or interest, either legal or equitable, would pass out of the government, but the whole would remain in it, as it did before the attempt was made. “ It has the effect, and this only, to exclude every person except the legal holder of the warrant from encroaching upon the land thus attempted to be appropriated by subsequent locations.” See also Jackson v. Clarke, 1 Pet. 628.
    The counterpart of the term “ unsurveyed lands,” used in the act of cessions, to wit, “ surveyed lands,” must be understood either in the sense given to it in respect to the holder of a warrant who would seek, by a subsequent entry and survey, to appropriate the land covered by a prior srnwey, or in the sense that attaches to it where the rights of the government are to be affected by the act done. Was there then a valid, legal, subsisting entry and survey as to and against the government, the effect of which was to give to the Gordon heirs a perfect, equitable title to the land embraced in their survey?
    First. The government itself has answered this in the negative. It was the right of the government to examine into the matter and determine whether or not the entry and survey were made in accordance with the law; and it has done so, and we have the result in the record which it has kept.
    Second. But, even if the commissioner had no power to act, or if his action was informal and irregular, or if it is true that his decision is not final, the same conclusion must be reached by any court having jurisdiction to determine the question. The legal title to the property involved remained in the government, and the most that can be claimed is, that it held it subject to the equities that existed in favor of the Gordon heirs. These were equities, if any existed, against the government, and in favor of the parties who were attempting by an entry and survey to appropriate a portion. of the lands • belonging to it.
    The wan’ant under which it was sought to make the appropriation called for five hundred acres of land, and no more. To that extent it was authority for the appropriation of the lands in the Virginia military district, and beyond that it conferred upon the holder no authority whatever. Without such a warrant no entry or survey could be made at all; and with such a warrant, the authority to make the entry and survey was limited to the number of acres called for by the warrant. An entry and survey of more land than was called for by the warrant was just as unauthorized as to the excess as an entry and survey without any warrant whatever.
    It might be that the owner of a warrant, acting in entire good faith, could embrace a small quantity of surplus land in. his survey, and no doubt it has been frequently done; but • when a warrant calling for five hund2’ed acres is used as the ■ foundation of two surveys — one for four hundred acres, and the other for one hundred, aud by actual measurement the; former is made to cover one thousand six hundred and eighty-two, and the latter five hundred and seventeen forty-six-one hundredths acres, the presumption of good faith or innocent mistake is overcome, and the very reverse must be the presumption. In fact, the attempted appropriation of the amount of land embraced in the two surveys, to satisfy a military warrant calling for five hundred acres, and no more, upon its very face, is a most arrant fraud upon the government; a fraud so palpable and glaring, that out of such a transaction, in the language of Judge Reed, “no equity can ever blossom.” The government having ignored the survey, and refused absolutely to cany it into grant, and there being no equity in the claim,' and the survey itself being so strongly tainted with fraud, the conclusion is irresistible that, at the time of the act of cession to Ohio, the land in question was in no way appropriated, either legally or equitably, to satisfy the warrant of the Gordon heirs; and it was therefore the subject of grant by the government, and would pass by the cession to the state.
   MoIlvaine, J.

Each party traces his title to the cession of territory northwest of the Ohio river by the state of Virginia to the United States in the year 1784 (1 U. S. Laws, 472), whereby lands situate in this state, between Scioto and Little Miami rivers, were devoted to the satisfaction of warrants, as ■bounties, issued by the state of Virginia to troops, for services in the revolutionary war, on the continental establishment.

Flagg, plaintiff below, claims title under the act of congress of April 18, 1871 (16 Stat. at L. 416), which reads as follows: “ Be it enacted by the‘senate and house of representatives of .the United States in congress assembled, that the lands remaining unsurveyed and unsold in the Virginia military district in tthe state of Ohio, be and the same are hereby ceded to the state of Ohio upon the conditions following, to wit: Any person who, at th® time of the passage of this act, is a bona fide settler on any portion of said lands, may hold not exceeding one. hundred and sixty acres so by him occupied, by his preempting the same in such manner as the legislature of the state of Ohio may direct.”

To complete his chain of title, the plaintiff below claims further under a grant from the state of Ohio to the Ohio Agricultural and Mechanical College, and from the college to himself.

Coan, the defendant below, claims title under an exchange military warrant, No. 494, issued by the state of Yirginia on the 16th day of June, 1840, to the children and heirs of Francis Gordon, a child and heir of John Gordon, the only heir of Thomas Gordon, who was a lieutenant of cavalry in the Continental line of Yirginia troops in the revolutionary war, for five hundred acres of land, to be laid off in one or more surveys : An entry, No. 15,882, purporting to cover five hundred acres of land under the foregoing warrant No. 494, made on December 18, 1849, by the said heirs of Francis Gordon and one David F. Heaton, an assignee of part of said warrant. A survey under said entry, No. 15,882, purporting to contain four hundred acres — three hundred and seventy-five acres for the heirs of Francis Gordon and twenty-five acres for said Heaton — made by said D. F. Heaton, a deputy surveyor of the district, on April 16, 1851, giving the metes'and bounds of the land surveyed, which was duly recorded on December 23, 1851. And mesne conveyances from the heirs of said Francis Gordon and said Heaton to himself.

It appears, however, that this survey, No. 15,882, embraces, in fact, one thousand six hundred and eighty-two acres.

No patent has ever been issued on this entry and survey for the reason, among others, that the quantity of land embraced is grossly in excess of the quantity named in the warrant,. No. 494.

Upon these facts, the main questions in the case arise.

1st. Did the entry and survey invest the owners of the warrant or their assignee, with an equitable interest in the lands surveyed? If, as against the United States, an equitable estate had passed to the defendant below, it may be admitted that the subsequent grant by the United States to the state of Ohio did not divest such estate.

Upon general principles, it cannot bé doubted, that a fraud so palpable, as is shown to have been attempted against the laws of the United States by this eútry and survey, would have avoided the survey entirely. The excess is so great, that no reasonable supposition can arise, that it occurred through an honest mistake.

True, the United States, against whom it was intended, might waive the fraud and relieve the party from its consequences, in whole or in part; and it is claimed that such was the effect of the act of Congress of July 7, 1838 (5 Stat. at L. 262), the second section of which provides: That “ no patent shall be issued ly virtue of the preceding section, for a greater quantity of land than the rank or term of service of the officer or soldier to whom, or to whose heirs or assigns, such warrant has been granted, would have entitled him to under the laws of Virginia and of the United States regulating the issuing of such warrants ; and whenever it appears to the secretary of war that the survey made by any of the aforesaid warrants is for a greater quantity of land than the officer or soldier is entitled to for his services, the secretary of war shall certify on each survey the amount of such surplus quantity, and the officer or soldier, his heirs or assigns, shall have leave to withdraw his survey from the office of the secretary of war, and resurvey his location, excluding such surplus quantity, in one body, from any part of his resurvey, and a patent shall issue upon such resurvey as in other cases,” &e. Clearly, this section forbids the issuing of a patent for a greater quantity of land than the officer or soldier was entitled to under the laws regulating the subject; and by fair construction it would seem that the relief provided was only in cases where the quantity named in the warrant was in excess of the quantity to which the warrantee was entitled, and not to cases where the survey was in excess of the warrant. But however that may be, the operation of the section is expressly limited to cases arising under the preceding section of the act, and the operation of that section expired by its own limitation on the 10th of August, 1840. If it be claimed that the operation of section 2 of this act was extended by reason of the extension and revival of the first section by the act of August 19, 1811 (5 U. S. L. 119), it is, at most, sufficient for this case to say, that the “ preceding section ” thus revived and continued in force for a limited time, contained the sole authority for making and returning entries and surveys, under these Virginia warrants, and since March 3, 1857, there has been no authority for making or returning surveys under any circumstances whatever. So that, at all events, the right to relief against excessive surveys, granted by the second section of' the act of 1838, whatever it may have been, has not existed since 1857, even if it be conceded that it was continued at all after 1810. See statute, March 3, 1855 (10 Stat. at L. 701).

Again, it is claimed that congress has recognized the validity of surveys within the district, notwithstanding the quantity embraced in the survey was excessive, by thq proviso in the act of March 23, 1807 (1 U. S. L. 92), which reads as follows: “Provided, that no locations as aforesaid, within the above-mentioned t'rict, shall, after the passage of this act, be made on tracts of land for which patents had previously issued, or which had been previously surveyed; and any patent which may, nevertheless, be obtained for land located contrary to the provisions of this section, shall be considered as null and void.”

It has undoubtedly been settled by repeated decisions, that under this proviso, that excess in the quantity of land embraced in a survey, does not vitiate the survey so as to authorize a subsequent location or entry under another warrant; but it has not been settled, nor was it the intention of Congress, by this proviso, to require a patent to be issued on an excessive survey. As between locators, lands actually surveyed, whether the survey was fraudulent or not, were withdrawn from subsequent entry and survey until the previous survey should be withdrawn or set aside. This legislation was in the interest of peace, as bettveen locators of warrants, and was a wise provision. But to hold that Congress intended, as against the government of the United States, to declare that excessive surveys, whether by mistake or design, should be binding, so as to establish an equitable.estate in the holder of the warrant, and entitle Mm to a patent for the whole or any part of the survey, would do violence to the language of the jproviso, and would show a disregard for the faithful execution of the trust imposed by the cession of these lands by Virginia to the United States, amounting to wickedness. As far ás we are advised, we know of no rule or practice, based either upon congressional enactment or principles of justice, by which the United States government could be justified in recognizing in the defendant below, an equitable estate in the whole or any part of the lands in dispute, arising upon an entry and survey so palpably fraudulent as those upon which he relies; and, therefore, it was within the ¡Dower of congress, on April 18, 1871, to grant to the state of Ohio the lands in dispute, free from any claim of right or interest therein of the defendant below.

It is claimed, however, that these lands were not conveyed or intended to be conveyed, by the act of April 18, 1871. The following'is the description of the lands intended tobe conveyed by that act, to wit: “ The lands' remaining unsurveyed and unsold in the Virginia military district in the state of Ohio.”

On the part of the plaintiff in error, it is contended that the word “ unsurveyed ” is used in this statute as the counterpart of the word “ surveyed,” as used in the proviso in the act of 1807, which has been construed to mean “surveyed in fact,” whether the survey was valid or voidable in point of law. On the other side, it is contended, that the intention of congress was to grant to the state all the lands remaining in the district of which the United States had the power of disposition, so that the word “unsurveyed” included land covered by an invalid or void survey. This construction is supported strongly by the facts that', subsequent to the year 1852, no entries under warrants for military services in Virginia were authorized, and subsequent to 1857 the right to make surveys on account of such warrants ceased — provision having been made by congress for the satisfaction of outstanding warrants by other means,' and that prior to the act of 1871 congress had provided no other means for the dispositions of lands remaining subject to power of disposition.

But inasmuch as congress, by the act of May 27, 1880 (2d session, 46th Congress, statutes, page 142), has declared the true intent and meaning of the act of 1871 to be, that the word “ unsurveyed ” excluded lands which had been included “ in any survey ” whether valid or invalid, and as we do not deem it necessary to the decision of this case to declare the effect of the act of 1871, we leave it undecided. The decision of this question becomes unnecessary from the fact, that congress, in section 4 of the act of 1880, provides: “ This act shall not in any way affect or interfere with the title to any land sold for a valuable consideration by the Ohio Agricultural and Mechanical College, grantee, under the act of February 18, 1871.”

This section we construe to be a ratification on the part of congress of the title of Flagg, plaintiff below, who was a purchaser from the college for a valuable consideration. True, the language of the section was not happily selected to express such ratification, but we think, such was the intention of the section. Construed literally, the section can have no effect whatever. Of course, the declaratory act of 1880 could not “ affect or interfere ” with any right acquired under the act of 1871. Congress knew that the Ohio Agricultural and Mechanical College had assumed to convey title to portions of these lands for a valuable consideration, under the belief and claim that it had a right to do so under the act of 1871. The title which the act was not to “ affect or interfere with ” was not one which in the view of congress was valid and indefeasible, but one which, under the construction placed upon the act of 1871, by the act of 1880, the college had no power to convey for want of title in itself. A title, which the college intended to sell for a valuable consideration, but by reason of the construction claimed for the act of 1871, it could not convey, was the subject of this section, and the purpose undoubtedly was. to confirm the sale so made, and give it effect according to the intention of the parties.

The title of Flagg thus ratified took effect as of the date of the conveyance, no other rights having intervened.

Several other questions have been raised and considered, which need not be reported.

White, J.,

did nob concur, in the second proposition, being of opinion that the right of such purchaser depends on the construction of the act of 1871, unaffected by the act of 1880.

Longworth, J., did not sit in the case.

Judgment affirmed.  