SAUNDERS filed a bill in chancery, in the State District Court of Madison County, Ohio, to quiet the title to a tract of land in that commonwealth, in what is called the Virginia Military District, a region north and west of the Ohio, and which, by the act of cession of that territory to the United States and several acts of Congress, was reserved for the Virginia troops upon the Continental establishment of our Revolutionary war. The case was thus: In 1784, in the Book of Entries, kept by the proper officer in the State of Virginia, an entry, No. 70, was made in the name of David Ross & Co., on several military warrants, of one thousand scres of land on the Ohio River, in that part of Virginia then called the Green River Country, and now making Kentucky. The entry was surveyed, the survey returned and recorded; and on the 15th June, 1786, a patent for one thousand acres of land was issued by the Governor of Virginia to Ross accordingly; the warrants themselves having apparently been returned into the land office in Virginia. The warrants had described no specific tracts, but were addressed to the surveyor, authorizing him 'to survey and lay off, in one or more surveys,' the quantity 'set apart for officers and soldiers of the Commonwealth of Virginia.'
It was afterwards ascertained that, in laying off and surveying this one thousand acres, a portion of the land, to wit, six hundred and forty acres of it, had been laid off within the bounds of a well-known body of lands that had been previously granted to Richard Henderson & Co.; and this being the older and better title, Ross lost, or rather never acquired so much of his promised land; that is to say, six hundred and forty acres. This fact being ascertained, a memorandum was subsequently made in the Book of Entries, opposite to entry No. 70, '640 withdrawn, and entered in 197.'
In 1790, Congress passed an act by which the soldiers of the Virginia line, on the Continental establishment, were authorized to obtain titles, on warrants issued to them, in what is now the State of Ohio; that is to say, in that region northwest of the Ohio River, between the rivers Little Miami and Scioto; and, in 1810, an entry was made in the office of the principal surveyor of the Virginia Military District in Ohio of six hundred and forty acres (the exact amount of Ross's patent covered by Henderson's prior grant), upon the same warrants upon which the patent issued in Virginia. On this entry a survey was made in 1817, which was returned and recorded; the Surveyor-General of the Virginia Military District within the State of Ohio certifying that the survey was founded on such and such warrants, which he specified by number and warrantee name, and adding, 'That said warrants were entered originally in a thousand acre entry, No. 70, in the State of Kentucky, &c., and patented to said David Ross, by the State of Virginia, on the 15th of June, 1786; that said survey No. 70, i. e., six hundred and forty acres of it, is withdrawn, by reason of its having been lost by interference with Henderson's grant, and entered and surveyed as above; that said warrants were never before satisfied; and that said patent on which this survey is founded is in my possession not satisfied.' Thus things remained from 1816 till 1837, when a certain Samuel Saunders, the complainant below, entered a portion, to wit, four hundred and twenty-eight acres of this same land, which had been surveyed to Ross; the entry being surveyed on the day it was made. On the 20th November, 1838, a patent was issued by the United States to this Saunders, complainant as above stated, and on the same day another patent to Niswanger, defendant below, in whom had become vested the entry and survey of Ross. This patent to Niswanger, following the surveyor's certificate already mentioned, stated the number of each one of the warrants; 'the same warrants,'-it went on to recite-'having been formerly located in the District of Kentucky, and patented by the Commonwealth of Virginia to the said David Ross, which has since been lost by interference with a prior claim, to wit, Henderson's grant, and the said warrants withdrawn and relocated in the Virginia Military District of Ohio, upon which the said survey is founded.'