Syllabus.

mony of the witness referred to (there is no other testimony tending to prove it) is for you to determine. In submitting this question, however, it is proper to say that, in the judgment of the court, it would be unsafe and therefore unjust to find error in the assessment and settlement under the evidence before you, and consequently to render a verdict against the defendant for the large sum of money claimed, as the plaintiff asks you to do. In other words, while the court does not desire to control your finding, but submits the question to you, it is of opinion that you should not, under the circumstances, find for the plaintiff.”

COAN v. FLAGG.

Judgment affirmed.

ERROR TO THE SUPREME COURT OF THE STATE OF OHIO.

Submitted October 20, 1887. - Decided October 31, 1887.

The entry and survey of lands in the Virginia military district in Ohio, under which the plaintiff claims title, did not invest the owners of the warrant, or their assignee, with an equitable interest in the lands surveyed, as against the United States, for the reason that the excess of the land surveyed beyond that covered by the warrant was so great as to make the survey fraudulent and void; and, consequently, Congress could, by the act of February 18, 1871, 16 Stat. 416, grant the lands at its pleasure.

It was the purpose of the act of February 18, 1871, to grant to the State of Ohio all the lands in the Virginia military district in that State which had not at that time been legally surveyed and sold by the United States, in that sense of the word "sold" which conveys the idea of having parted with the beneficial title; and the lands in controversy, having been surveyed by a survey invalid against the United States, were within that description.

The fourth section of the act of May 27, 1880, 21 Stat. 142, recognized and ratified the title of the defendant in error to the lands in controversy as a purchaser from the Ohio Agricultural and Mechanical College for a valuable consideration.

Copies of official letters from the Commissioner of the General Land Office to a person claiming title under a warrant and survey, reciting the date of the filing of the survey in the office, being verified by the oath of the person who was a clerk in that division of the Land Office and at that time had charge of the matters relating to this subject, and in whose letters

Opinion of the Court.

to the parties interested were contained all the decisions of the Commissioner relating to it, are competent evidence to show the time of the filing.

IN equity, in a state court in Ohio, to quiet title and to restrain waste. The answer set up title in respondent. Judg ment for complainant, which was affirmed by the Supreme Court of the State on appeal. The defendant sued out this writ of error. The case is stated in the opinion of the court.

Mr. Charles King, Mr. William B. King, Mr. N. W. Evans, and Mr. A. C. Thompson, for plaintiff in error, cited: McArthur v. Dunn, 7 How. 262; Jackson v. Clark, 1 Pet. 628; Parker v. Wallace, 3 Ohio, 490; Stubblefield v. Boggs, 2 Ohio St. 216; Thomas v. White, 2 Ohio St. 540; Price v. Johnston, 1 Ohio St. 390; Taylor v. Brown, 5 Cranch, 234; Holmes v. Trout, 7 Pet. 171; Saum v. Latham, Wright, O., 309; Marquez v. Frisbie, 101 U. S. 473; Johnson v. Towsley, 13 Wall. 72; Bird v. Ward, 1 Missouri, 398; Shepley v. Cowan, 91 U.S. 330; Danforth v. Morrical, 84 Ill. 456; Brush v. Ware, 15 Pet. 93; Polk v. Wendell, 5 Wheat. 293; Griffin v. Reynolds, 17 How. 609; James v. Gordon, 1 Wash. C. C. 333; Winn v. Patterson, 9 Pet. 663; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Dubuque &c. Railroad v. Litchfield, 23 How. 66; Mills v. St. Clair County, 8 How. 569; Wilcox v. Jackson, 13 Pet. 498; Nash v. Atherton, 10 Ohio, 163; Calhoun v. Price, 17 Ohio St. 96.

Mr. W. A. Hutchins and Mr. George O. Newman for defendant in error cited: Fussell v. Gregg, 113 U. S. 550; Jackson v. Clark, 1 Pet. 628; Taylor v. Myers, 7 Wheat. 23; Hoofnagle v. Anderson, 7 Wheat. 212; Stubblefield v. Boggs, 2 Ohio St. 216; Thomas v. White, 2 Ohio St. 540; Price v. Johnston, 1 Ohio St. 390; Saunders v. Niswauger, 11 Ohio St. 298; Miller v. Kerr, 7 Wheat. 1.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

The judgment sought to be reviewed on the present writ of error was rendered by the Supreme Court of the State of Ohio

Opinion of the Court.

in a proceeding begun by Flagg, the defendant in error, to quiet his title and possession to a certain tract of land lying in Nile Township, Scioto County, Ohio, within the Virginia military district, embraced within survey No. 15,882. The judg ment of the Supreme Court of Ohio in the case is reported as Coan v. Flagg, 38 Ohio St. 156.

On the 18th of February, 1871, Congress passed an act to cede to the State of Ohio the unsurveyed and unsold land in the Virginia military district in said State, 16 Stat. 416, which reads as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the lands remaining unsurveyed and unsold in the Virginia military district in the 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 the time of the passage of this act is a bona fide settler on any portion of said land 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."

The lands thus ceded were granted by the State of Ohio to the Ohio Agricultural and Mechanical College. The college claiming the lands in controversy to be embraced within this cession, for a valuable consideration sold and conveyed the same to Flagg, who entered into possession prior to the commencement of this suit. Coan, the original defendant, claims title under:

1st. Exchange military warrant No. 494, issued by the State of Virginia 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 Virginia troops in the Revolutionary War, for 500 acres of land, to be laid off in one or more surveys;

2d. An entry No. 15,882, purporting to cover 500 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;

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3d. A survey under said entry No. 15,882, purporting to contain 400 acres, 375 acres for the heirs of Francis Gordon, and 25 acres for said Heaton, made by said D. F. Heaton, a deputy surveyor of the district, on April 10, 1851, giving the metes and bounds of the lands surveyed, which was duly recorded on December 23, 1851, in the district land office at Chillicothe ;

4th. And mesne conveyances from the heirs of said Francis Gordon and said Heaton to Coan.

It is an undisputed fact, appearing on the record, that this survey No. 15,882 embraces in fact 1682 acres.

The answer of Coan, the defendant below, contains the averment that "on the 26th of December, A.D. 1851, the said E. P. Kendrick, surveyor for said district, duly certified said survey, being numbered (the same as said entry) 15,882, to the General Land Office at Washington, D. C., for patent, and that said survey has ever since been on file in said office."

It is stated, however, in a letter addressed by the acting Commissioner of the General Land Office to L. C. Heaton, the executor of David F. Heaton, then claiming title, dated June 18, 1873, and admitted in evidence, that survey No. 15,882 was filed in that office for the purpose of obtaining a patent on the 26th of April, 1852. The same fact is recited in a letter from Willis Drummond, the Commissioner of the General Land Office, dated October 26, 1871, also admitted in evidence, addressed to David F. Heaton, then claiming title. No patent has ever been issued on this entry and survey, for the reason, among others, given in the correspondence between the officers of the Land Department and Heaton, " that the same contained a large excess of land over and above the amount stated therein and actually due in virtue of said warrant exchange No. 494 ; the amount of that excess being stated at 1282 acres. This was communicated in a letter from the Commissioner of the General Land Office to L. C. Heaton, dated June 18, 1873, in which it was said that: "This office will not, of course, recognize the validity of any such survey as the foregoing, and must refuse, if there were no other objections, to carry the same into grant, and unless you deny the facts as above stated and wish to offer rebutting testimony, and be heard in reply,

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you will understand that the claim for patent in the case of said survey, No. 15,882 is rejected. Should you, however, dispute the correctness of the said resurvey, &c., and will at once advise this office of the fact, every reasonable opportunity will be afforded you to be heard in the case with such evidence as you may desire to present."

On July 11, 1873, the Commissioner of the General Land Office, by a letter of that date, addressed to L. C. Heaton, informed him, in response to his application, made in a letter of June 30, that ninety days from July 11th would be allowed to establish his claim to a patent upon this survey.

On October 10, 1873, the Commissioner wrote to Heaton a letter containing the following: "You were advised on the 18th of June last of the rejection of your application for a patent in the case, but, at your request of the 30th of the same month, the matter was held open for the period above stated to afford you an opportunity to present rebutting testimony, &c. The allotted time having expired and nothing presented on your part to sustain the validity of the said survey, you are hereby advised that the rejection of the case, as stated in my said communication of the 18th of June last, is now made definite and final, so far as this office is concerned." No further action was taken in the Department on the subject.

46

It also appears that for the 100 acres not embraced in this survey, to make the 500 acres called for by warrant No. 494, another survey was made containing 517 acres, so that the whole amount of land embraced in the two surveys upon that warrant, nominally for 500 acres, actually embraced an excess of 1699,46 acres.

100

On the 27th of May, 1880, Congress passed an act to construe and define the act of February 18, 1871. The first and second sections of this act are as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the act ceding to the State of Ohio the lands remaining "unsurveyed and unsold" in the Virginia military district in the State of Ohio had no reference to lands which were