CLARK V. SMITH, 38 U. S. 195 (1838)

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U.S. Supreme Court

Clark v. Smith, 38 U.S. 13 Pet. 195 195 (1838)

Clark v. Smith

38 U.S. (13 Pet.) 195


The colonial charters, a great portion of the individual grants by the proprietary and royal governments, and a still greater portion by the states of the Union after the Revolution, were made for lands within the Indian hunting grounds. North Carolina and Virginia, to a great extent, paid their officers and soldiers of the Revolutionary War by such grants, and extinguished the arrears due the army by similar means. It was one of the great resources which sustained the war not only by those states, but by other states. The ultimate fee, encumbered with the right of Indian occupancy, was in the Crown previous to the Revolution, and in the states of the Union afterwards, and subject to grant. This right of occupancy was protected by the political power and respected by the courts until extinguished, when the patentee took the unencumbered fee. So this Court and the state courts have uniformly held.

The State of Kentucky has an undoubted power to regulate and protect individual rights to her soil and to declare what shall form a cloud on titles, and having so declared, the courts of the United States, by removing such cloud, are only applying an old practice to a new equity created by the legislature, having its origin in the peculiar condition of the country. The unappropriated lands of the State of Kentucky have been opened to entry and grant at a very cheap rate, which policy has let in abuses. The clouds upon old titles by the issuance of new patents for the same lands were the consequence, and the citizens of other states are entitled to come into the courts of the United States, to have their rights secured to them by the statute of Kentucky of 1796.

The State of Kentucky may prescribe any policy for the protection of the agriculture of the country that she may deem wise and proper. She has, in effect, declared that junior patents issued for previously granted lands shall be delivered up and cancelled, with the addition that a release of title shall be executed, and it is the duty of the courts to execute the policy.

Where the legislature declares certain instruments illegal and void, there is inherent in the courts of equity a jurisdiction to order them to be delivered up, and thereby give effect to the policy of the legislature.

The state legislatures have certainly no authority to prescribe the forms or modes of proceeding in the courts of the United States, but having created a right and at the same time prescribed the remedy to enforce it, if the remedy prescribed is substantially consistent with the ordinary modes of proceeding on the chancery side of the federal courts, no reason exists why it should not be pursued in the same form as in the state courts. On the contrary, propriety and convenience suggest that the practice should not materially differ when titles to land are the subjects of investigation.

In the State of Tennessee, the legislature has provided that the courts of equity may divest a title, and vest it in another party to a suit, and that the decree shall operate as a legal conveyance. In Kentucky the legislature has declared that courts may appoint a commissioner to convey, as attorney in fact of litigant parties, and such shall pass the title, in both instances binding infants and femes coverts if necessary. The federal courts of the United States, in the instances referred to, have adopted the same practice for many years, without a doubt having been entertained of its propriety. It may be said with truth that it is a mode of conveyance and of passing title which the states have the exclusive right to regulate.

The undoubted truth is that when investigating and decreeing on titles in this country, the court must deal with them in practice as it finds them, and accommodate our modes of proceeding in a considerable degree to the nature of the case, and to the character of the equities involved in the controversy, so as to give effect to state legislation and state policy, not departing, however, from what legitimately belongs to the practice of a court of chancery.

Page 38 U. S. 196

William Clark, the father of the appellants, filed a bill in the Circuit Court of the District of Kentucky, praying the court to compel the defendant to release his pretended title to certain lands in the State of Kentucky, claimed by under certain patents obtained from the State of Kentucky, more than thirty years after the registration of the survey of the ancestor of the complainants, George Rogers Clark. The possession of the land had continued in the ancestor of the complainant, and in himself, up to the time of the filing of the bill. The conveyance asked by the bill was sought to be in conformity with the provisions of the act of the assembly of Kentucky giving jurisdiction to courts of equity in such cases.

The circuit court was unanimously of opinion that the complainants had established the legal title to the land mentioned in the bill, under a valid grant from the Commonwealth of Kentucky, to George Rogers Clark, his ancestor, and that he was in possession of the same at the commencement of this suit, and that the defendant had not shown that he had any right or title, either in law or equity, to the land or any part of it, but the judges of the circuit court being divided in opinion on the question of the jurisdiction of the circuit court to compel the defendant to execute the conveyance prayed for in the bill, it was not the opinion of the court (the defendant having set up and exhibited junior patents from the Commonwealth of Kentucky for the land, to himself) that on any other ground apparent in the cause, the circuit court had jurisdiction, on the general principles which determine the equity jurisdiction of the courts of the United States, to grant to the complainants any other relief. The bill of the complainants was dismissed; and they prosecuted this appeal.

Page 38 U. S. 200

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