WALLACE V. PARKER, 31 U. S. 680 (1832)

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U.S. Supreme Court

Wallace v. Parker, 31 U.S. 6 Pet. 680 680 (1832)

Wallace v. Parker

31 U.S. (6 Pet.) 680


Jurisdiction. This Court has jurisdiction in an appeal from the Supreme Court of the State of Ohio in a case where was drawn in question at the trial the construction of the act by which Virginia ceded the territory she claimed northwest of the River Ohio to the United States, and of the resolution of Congress accepting the deed of cession and the acts of Congress prolonging the time for completing titles to lands within the Virginia Military Reservation, the decision of the Supreme Court of Ohio, having been against the title set up under the acts of Congress.

Construction of the acts of Congress relative to the Virginia reservation of military lands in Ohio.

Josiah C. Parker, the defendant in error, filed a bill in the Court of Common Pleas of Brown County in the State of Ohio, praying for an injunction, and that Cadwallader Wallace, the defendant in error, should be compelled to release his legal title to one thousand acres of land in the Virginia military district in the State of Ohio, which Josiah Parker, the grandfather of the complainant, had entered on or about 12 January, 1788, on part of a Virginia military warrant, No. 1920, under which entry a survey was made, but which survey, by the omission of the surveyor, was not returned to the proper officer for record. The bill stated that the defendant, Cadwallader Wallace, had caused part of the tract to be located and had obtained a grant for the same, and upon the said grant had prosecuted a writ of ejectment against persons in possession of the land under the complainant.

The defendant held under a patent dated April 13, 1824, issued to him in consideration of military services performed by Thomas Parremore to the United States, a captain, for the war in the Virginia line on continental establishment and in pursuance of an Act of the Congress of the United States of 10 August, 1790, entitled

"an act to enable the officers and soldiers of the Virginia line on continental establishment to obtain title to certain lands lying northwest of the River Ohio, between the Little Miami and Sciota."

The survey on which

Page 31 U. S. 681

the patent was founded was dated 17 December, 1823. In an answer afterwards filed to an amended bill, he says that the complainant has no equitable claim to the land, because the entry made by him is based upon a resolution warrant, which is not protected by the act of Congress, and cannot therefore be a foundation on which to base a valid entry.

The pleadings also exhibit other questions as to the nature and validity of the surveys of the land. As no decision of the court was given upon any of the questions presented by those parts of the proceedings, they are omitted.

The petition of Josiah Parker, the grandfather and devisor of the complainant, in 1783, to the Legislature of Virginia for an allowance of land, and the proceedings thereon, were as follows:

"To the Honorable, the general assembly: "

"The request of Josiah Parker humbly representeth that he was, in October, 1775, appointed by the assembly major of the fifth regiment on continental establishment; that he was, in August, 1776, promoted to the rank of lieutenant-colonel, and the April following had the honor of receiving a full colonel's commission in the same regiment, which he retained until August, 1778, when he resigned it to General Washington on the banks of the North River after the arrival of Compte D'Estaing and the French alliance. That previous to all this, he raised the first company of minutemen on the south side of James River, and was on actual duty at the Great Bridge with his company until his promotion in the continental line. That since his resignation, he has, on every invasion, been employed against the enemy and with active and disagreeable commands, with the rank still of colonel in the militia, which he satisfied himself with, though inferior to the rank he held in the army, as he felt the satisfaction of serving his country; and during all this his services in the militia, he never received a shilling of money of any sort from this state or the continent; notwithstanding, by the act of assembly allowing a bounty of lands to the officers and soldiers, he is precluded from any share, because he did not serve three years in a continued line; that nevertheless he is emboldened to request the assembly will allow him a colonel's allowance of lands, because they have resolved that Generals Stephens and Lewson should receive

Page 31 U. S. 682

theirs, and although each of these are general officers of the militia, yet they were only colonels at the same time with your petitioner, who remained longer in the continental army than either of them."

"In the House of Delegates, Tuesday, 18 November, 1783: "

"Mr. Mann Page reported from the Committee of Proposition and Grievances that the committee had, according to order, had under its consideration the petitioner of Josiah Parker, to them referred, and had agreed upon a report, and come to a resolution thereupon, which he read in his place, and afterwards delivered in at the clerk's table, where the same was again twice read and agreed to by the house, as followeth:"

" It appears to your committee that in October, 1775, the said Josiah Parker was appointed a major of the fifth regiment on continental establishment, in which rank he acted until August, 1776, when he was appointed lieutenant-colonel, and in April, 1777, he received a full colonel's commission in the same regiment, and acted in that rank until August, 1778, when he resigned. It also appears to your committee, that since that resignation of the said Josiah Parker, he hath, upon every invasion of this state by the enemy, been upon duty with the militia in the rank of colonel, with the command of the whole militia on the south side of James River after the invasion by General Philips, until the arrival of the Count de Grasse. Resolved that the petition of the said Josiah Parker, praying that he may be allowed the bounty in lands by law given to a colonel in the continental line, is reasonable."

"Land Office, Military Warrant, No. 1920: "

"To the principal surveyor of the lands set apart for the officers and soldiers of the Commonwealth of Virginia. This shall be your warrant to survey and lay off, in one or more surveys, for colonel Josiah Parker, his heirs or assigns, the quantity of 6,666 2/3 acres of land, due unto the said Josiah Parker in consideration of his services for three years as a colonel in the Virginia continental line, agreeable to a certificate from the governor and council, received into the land office."

"Given under may hand and seal of the said office this 21 Nov. in the year 1783. JOHN HARVIE, R. L. Office. "

Page 31 U. S. 683

The complainant also exhibited in evidence a patent for five hundred and ten acres, issued to him by the United States as the devisee of Josiah Parker, which patent, bearing date 1 February, 1827, recited that

"In consideration of military services performed by Josiah Parker for three years a colonel to the United States in the Virginia line on continental establishment, and in pursuance of an Act of Congress of the United States passed on 10 August in the year 1790, entitled"

"An act to enable the officers and soldiers of the Virginia line on continental establishment to obtain titles to certain lands lying northwest of the River Ohio between the Little Miami and Sciota,"

"and other acts of the said Congress amendatory to the said act, there is granted by the United States unto Josiah C. Parker, devisee of the said Josiah Parker, a certain tract of land containing 510 acres, situate between the Little Miami and Sciota Rivers, northwest of the River Ohio on the waters of Red Oak and Eagle Creeks, branches to the Ohio, being part of a military warrant No. 1920."

The Court of Common Pleas of Brown county, on 26 September, 1826, ordered and decreed that the complainant's injunction for the land aforesaid, and the costs of the suit at law, be rendered perpetual, and that said defendant do, by deed duly executed, within thirty days release to the complainant the land hereinbefore described by metes and bounds, and in case of failure of said defendant to execute such release, that then and in that event this decree shall operate as such release, and it is further ordered and decreed by the court that the defendant pay the complainant his costs by him about his suit in this behalf expended, also his costs about his defense in the action at law expended, within thirty days, and in case of failure, that said complainant have execution for said costs, and the parties are hence dismissed. And thereupon the defendant, by his counsel, gave notice that he would appeal from the decree aforesaid to the supreme court.

The Supreme Court of Ohio, at November term 1828, affirmed the decree of the court of common pleas, and the defendant prosecuted a writ of error to this Court.

Page 31 U. S. 686

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