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HENRY HOLLINGSWORTH, HEIR OF LEVI HOLLINGSWORTH, APPELLANT v. PHILIP BARBOUR AND OTHERS

January 1, 1830

HENRY HOLLINGSWORTH, HEIR OF LEVI HOLLINGSWORTH, APPELLANT
v.
PHILIP BARBOUR AND OTHERS, APPELLEES.



APPEAL from the circuit court of the district of Kentucky. The case is fully stated in the opinion of the court. The cause was argued by Mr. Sheffey for the appellants, and by Mr Wickliffe for the appellees.

The opinion of the court was delivered by: Mr Justice Baldwin delivered the opinion of the Court.

This was a bill, filed on the equity side of the court, by the appellants, setting forth, that on the 21st of February 1784, a certain John Abel Hamlin entered, with the proper surveyor for the district of Kentucky, forty-five thousand acres of land, lying in the county of Washington; by virtue of sundry treasury warrants, issued by the state of Virginia. That a survey was made thereon, on the 13th of April 1786; and a patent issued the 8th of June 1798, to the said John Abel Hamlin. That previous to the date of such entry, the complainant had purchased from the said Hamlin the warrants on which the entry and surveys had been made, for the sum of three thousand seven hundred dollars; which he paid. That although the entries, survey and patent were in the name of said Hamlin, they were for the benefit of the complainant; who alleged the equitable title thereto as belonging to him. That Hamlin being dead, without having made a conveyance, the complainant, in 1814, exhibited his bill in chancery, in the circuit court for the county of Washington, against the unknown heirs of said Hamlin; and obtained a decree of said court, ordering them to convey to him the legal title of said lands, by a day named in said decree; in default whereof the court appointed a commissioner for that purpose, who, by deed approved by the court, conveyed the same to the complainant on the 15th of August 1815: by virtue of which decree and conveyance, he became vested with the right, title and interest of said Hamlin to all the lands embraced in the patent of the commonwealth to him.

The bill then sets forth, that the defendants, sixty-six in number, had obtained grants of various portions of the land patented to Hamlin, and were in possession of the same, by virtue of warrants, entries and surveys adverse to his: and concludes with a prayer against the appellees, the respondents below, that they may be compelled to convey to the complainant the land claimed by them respectively under their patents, which were elder than the one to Hamlin.

In support of the allegations of his bill, the complainant produced the entries, survey and patent before mentioned, but offered no evidence of any contract, written or parol, between him and Hamlin for the sale of these lands; and did not attempt to rest his claim to hold the title of Hamlin on any other authority than the decree of the circuit court of Washington county, and the deed of the commissioner appointed to execute the conveyance to him of the lands included in the patent. In the court below, the defendants, in their answers, made various objections to the entries on Hamlin's warrants; set up title in themselves, by the patents, under which they claimed; and their long possession of the lands within their respective surveys, for a period in many of the cases exceeding, and in few falling short of the period prescribed by the act of limitation.

If this court entertained a doubt of the validity of the decree rendered by the circuit court of the county of Washington, ordering a conveyance of the title of Hamlin in the lands in question to Hollingsworth, we should feel it our duty to enter into the consideration of all the questions arising on the bill, answer, and exhibits in this case.

When the case was first reached on the calendar, no counsel appeared on the part of the appellants. The counsel of the appellees brought the case before the court, and presented the various points which arose at the hearing in the circuit court; beginning with the first in order, the right of Hollingsworth to put himself in place of Hamlin, as to a remedy against the appellants. He was informed by the court, that, as then advised, they did not wish to hear him on the other points. Counsel afterwards appearing for the appellants, and requesting to be heard, the court directed an argument on what then appeared to them the turning question on the whole case. We have carefully weighed the reasons urged for a reversal of the decree of the court below on that ground, and still retain the opinion formed on the ex parte argument; that the decree in the case of Hollingsworth against the unknown heirs of Hamlin, and the deed executed by the commissioners pursuant thereto, was void, and wholly inoperative to transfer any title; and that Hollingsworth, or his heir, had no right to call on the appellees to transfer their prior legal title to him, as representing Hamlin or his heirs. That be the title of the appellees good or bad, the complainant had no equity against them. Being a stranger to Hamlin's title, he had no right to any conveyance to himself, or any relief sought for by the bill now under the consideration of the court.

The original bill against the unknown heirs of Hamlin, thus deduces the complainant's right to a decree for the conveyance of the legal title vested in Hamlin or his heirs by the entries, survey, and patent before referred to:–That Hamlin was indebted to the complainant in the sum of about four thousand dollars by book account; that he had absconded, and complainant took a writ of attachment against his effects, out of the court of common pleas of the county of Philadelphia, of September term 1784; that in execution of that writ the sheriff broke open the counting house of Hamlin, but found no property therein except thirty-nine Virginia warrants for ninety thousand acres of land, of which he took possession, but made no return of them on the writ: that Hamlin some time afterwards returned to Philadelphia, being wholly insolvent, and proposed to complainant that he should take the warrants for the sum of three thousand seven hundred dollars, to which he assented, and gave Hamlin a credit to that amount on the account; that the warrants were accordingly delivered to the complainant, but without any transfer or assignment in writing. That before the circumstances of Hamlin became desperate, he had, in co-operation with a person who owned some Virginia warrants, made an agreement with Benjamin Stevens of New Jersey, to locate their respective warrants; which agreement was ratified by the complainant, who paid to Stevens one hundred and twenty-three pounds eight shillings and nine pence, Pennsylvania currency, for fees of patenting, &c. and further agreed to make Stevens a liberal compensation for his personal labour; and he then commenced the business of locating, surveying, &c.: that Stevens made entries and executed surveys of forty-five thousand acres (the lands in controversy); returned the plats and certificates of survey to the register's office, and paid the fees of office.

It thus appearing from the complainant's allegations in his bill, that the locating and surveying of the warrants, and all the steps necessary to the completion of the title were done by Stevens, who was employed for that purpose, first by Hamlin, and afterwards by himself, and that his services were compensated by money; it becomes unnecessary to consider the other matters set forth by the complainant. Not being a 'locator' of these lands, and showing the location to have been made by another; he excluded himself from all pretence of claiming a right to proceed as such against the unknown heirs of Hamlin.

The circuit court of Washington county could take cognizance of the case presented to them by the complainant, by no principle of the common law, or rule of a court of equity. Their powers to do so must be conferred by some law of Kentucky, within which the complainant must have brought himself, or the proceedings would be void for want of jurisdiction in the court. As this court fully concurs with the views taken of this course by the late learned and lamented Mr. Justice Trimble, who pronounced the decree of the circuit court in a very lucid and elaborate opinion, returned with the record; we deem it wholly unnecessary to do more than to refer to it as containing the reasons of the decree, which we unanimously approve.

'This is a controversy for land under conflicting adverse titles. The complainant claims the land by virtue of two entries, made with the surveyor of Washington county on the 23d of February 1784, in the name of John Abel Hamlin; an inclusive survey of these entries made on the 12th day of April 1786; a grant issued thereon to John Abel Hamlin on the 8th day of June 1797; and a deed of conveyance made by a commissioner on behalf of the unknown heirs of John Abel Hamlin to the complainant, in obedience to and in pursuance of a decree of the circuit court for the county of Washington. The defendants claimed the land under and by virtue of sundry entries, surveys and grants, elder than the grant to John Abel Hamlin. The defendants, in their answers, controvert the validity of John Abel Hamlin's entries; insist that John Abel Hamlin and his heirs, if he left any, were aliens, incapable of taking, holding, or conveying real estate; deny that John Abel Hamlin left any heirs to inherit his title: and deny that the complainant has any interest in or title to the estate of John Abel Hamlin in the premises. They further rely on their elder legal titles; insist upon the validity and superiority of the several entries under which they hold; and in bar of the relief sought by the bill, allege they have had upwards of twenty years adverse possession of the land in controversy, prior to the institution of this suit.

'It is argued for the defendants, that the decree of the Washington circuit court is void; and that no title passed by it, and the commissioner's deed made in pursuance of it, to the complainant.

'It must be conceded, that if the decree is void, the commissioner's deed, made by its authority, can pass nothing to the complainant.

'This court disclaims all authority to revise or correct the decree, on the ground of supposed error in the court who pronounced the decree. The principle is too well settled, and too plain to be controverted, that a judgment or decree pronounced by a competent tribunal against a party having actual or constructive notice of the pendency of the suit, is to be regarded by every other co-ordinate tribunal; and that if the judgment or decree be erroneous, the error can be corrected only by a superior appellate tribunal. The leading distinction is between judgments and decrees merely void, and such as are voidable only: the former are binding no where; the latter every where, until reversed by a superior authority. Upon general principles, the decree of the Washington circuit court must have the same force and effect, and none other in this court, than it would or ought to have in any circuit court of the state. Although these principles are unquestionable, the correct application of them to this case is attended with no little difficulty.

'The suit and decree is against the unknown heirs of John Abel Hamlin. Instead of personal service of process upon the defendants in the suit, an order of publication was made against them; and upon a certificate of the publication of this order for eight weeks successively in an authorised newspaper being produced and filed in the cause, the bill was taken pro confesso; and at the next ...


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