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DUNCAN McARTHUR'S HEIRS, COMPLAINANTS, v. WALTER DUN'S HEIRS.

January 1, 1849

DUNCAN MCARTHUR'S HEIRS, COMPLAINANTS,
v.
WALTER DUN'S HEIRS.



THIS case came up from the Circuit Court of the United States for the District of Ohio, on a certificate of division in opinion between the judges thereof. It was before this court at January term, 1842, and was then remanded to the Circuit Court, upon the ground that a material error had been committed by the clerk in stating the point intended to be certified. It now came back with the error corrected. It was, originally, a bill filed on the equity side of the Circuit Court by Dun against McArthur, in which the same matters of controversy were involved as in the present case. Dun obtained a decree against McArthur in 1836. In 1838, McArthur filed the present bill of review. The following table presents a view of their conflicting titles to the land in question:––

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

McArthur's Title.

Dun's Title.

1822, Nov. 23. Entry in the

name of Means, who

was dead.

1823, March 1. Act of

Congress passed.

1823, March 18. Survey.

1824, Dec. 10. Entry by Galloway.

1824, Dec. 15. Survey.

1825, Jan. 3. Patent.

1825, April 4. Patent.

All the facts in the case are stated in the certificate of division in opinion, which was as follows, viz.:––

'This cause having been remanded from the Supreme Court of the United States to this court, for a further order touching the point upon which the opinions of the judges of this court upon the hearing thereof were opposed, in compliance with said mandate of said Supreme Court, the said point of disagreement of said judges is now ordered to be restated more specially and at large. The said point of disagreement arose out of the following facts, stated and set forth in the original bill of said Walter Dun, and admitted to be true by the demurrer of said Duncan McArthur thereto, who was the respondent to said original bill, viz.: That said McArthur, on the 3d of January, A. D. 1825, obtained a patent for the tract of land in controversy, which is situate in the Virginia military reservation, in the State of Ohio, on an entry made on a Virginia military land-warrant in the name of Robert Means, assignee, on the 23d of November, A. D. 1822, followed by a survey of said entry made in the name of the said Robert Means, assignee, on the 18th of March, A. D. 1823; which said Robert Means before said entry, and as early as the year A. D. 1808, had departed this life. And that, on the 4th day of April, 1825, another patent for the same tract of land was issued to one James Galloway, on an entry thereof made in the name of said Galloway, on the 10th of December, A. D. 1824, on another Virginia military land-warrant, and which was duly surveyed in his (said Galloway's) name, on the 15th of the same month of December, A. D. 1824, and which tract of land was subsequently conveyed by said Galloway to said Walter Dun. Upon which said state of facts, touching the titles of the said parties to said tract of land, this point was raised by the counsel for the complainant in said bill of review, upon the hearing and ...


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