M'Donald v. Smalley (31 U.S. 261)/Opinion of the Court

by John Marshall

United States Supreme Court

31 U.S. 261

M'Donald  v.  Smalley

This suit was brought in the court of the United States for the seventh circuit, and district of Ohio, to obtain a conveyance for land which the defendants hold by a senior patent, and which the plaintiffs claim under a prior entry. The bill was dismissed by the circuit court, and the plaintiffs have appealed to this court.

Serious doubts exist respecting the validity of the entry under which the claim has been made, and several points have been discussed at the bar. It is unnecessary to decide more than one of these questions, because that is decisive of the case. David Anderson, in whose name the entry under which the plaintiffs claim was made, was dead at the time. The entry, therefore, as was determined in Galt and others v. Galloway, 4 Peters, 332, 345, is, in the state of Ohio, a nullity. This being the foundation of the plaintiffs' title, they must fail in their action.

Counsel at the bar have endeavoured to distinguish this case from that, by treating the entry as one made in the name of the wrong person, through the mistake of the surveyor.

We do not think he is sustained by the fact or the law of the case. The decree is affirmed with costs.

Notes