*The Lessee of William S. Sullivant and others v. John Weaver and others.
The act of Congress, of May 20, 1836, to give effect to patents for public lands, vests the title in the heir or assignee of a deceased patentee.
A decree against unknown heirs is valid by our statute.
This is an action of ejectment on an agreed state of facts, from the county of Clermont.
A patent was issued in the name of James Mabin, after his death, in 1800.
Andrew Mabin was the brother and heir at law of James.
In 1830, a decree in chancery was obtained, by the plaintiffs in this suit, against the unknown heirs of Andrew Mabin. Tho record of this decree shows, that an affidavit was filed, by the plaintiffs, during the progress of the suit, that the heirs of Andrew Mabin were unknown.
The defendants trace their title to a patent, issued in 1833, on an entry made after the decree in chancery.
Fox, for the plaintiffs :
The act of Congress of March 2,1807, providing that no location shall be made on lands for which patents had been previously issued, or which had been previously surveyed, renders void the survey and patent of Weaver. Lindsey v. Miller, 6 Peters, 666; Wallace v. Parker, 6 Peters, 680; Jackson v. Clark, 1 Peters, 628.
Two questions then only remain :
I. Is the decree against the unknown heirs of Mabin valid to convey the title? There is no pretension, but the case made in the bill is within the statute authorizing proceedings in chancery against unknown owners, but it is objected that the affidavit required by the act was not made on the filing of the bill. If this bean irregularity, it was cured by filing'the affidavit afterward with the permission of the court. Besides, however irregular the decree may have been, it is good until reversed, and can not be called in question collaterally by a stranger.
276] *H. The act of Congress of May 20,1836, confirms the title in the heirs or-assignees of all persons in whose name patents issued after their death. By virtue of this act, the vested in title *277Andrew Mabin, as the heir of his brother, and under the decree in chancery, it passed into the plaintiffs.
Fishback, for the defendant:
The plaintiffs can rely only on the strength of their own title, not on the weakness of their adversaries. They claim under an ex parte decree, and such decrees are always at the peril of the party taking them, and are to be regarded rather as the act of the party than of the court. Carew v. Johnson, 2 Sch. & Lef. 300.
There is no evidence in the case, that Andrew'Mabin left any heirs. The record and proceedings against unknown heirs is no evidence that any such heirs existed. Hollingsworth v. Barbour, 4 Peters, 466.
It is admitted that, at-the date of the patent, James Mabin was dead; and it is a well-settled rule that nothing passes by a patent issued in the name of a dead man. The decree, therefore, in 1830, against his heirs, could pass no title, for they had nothing to pass. The title was in government. The decree required the unknown heirs to convey, but without covenants. The plaintiffs then acquired nothing by the d'ecree as it stood in 1830. The act of Congress was passed in 1836, and vested the title in the heirs of the pat* entee, where it still remains. The doctrine of estoppel has no application. None but a conveyance with warranty will transfer a title subsequently acquired. Jackson v. Matsdorf, 11 Johns. 91; Jackson v. Danforth, 12 Johns. 201; Jackson v. Stevens, 13 Johns. 316; Jackson v. Wright, 14 Johns. 193; Bond v. Swearengen, 1 Ohio, 395; Allen v. Parish, 3 Ohio, 107; 4 Kent’s Com. 98.
In 1792, a statute similar to this act of Congress was passed in Kentucky, and it has been held not to have a retrospective operation so as to divest title already acquired. Lewis v. McGee, 1 Marsh. 199.
*Lane, C. J.
The defendant’s patent is void, under the [277 act of Congress of 1807, and the only points in the case are upon the plaintiff’s titlA To this the defendant offers two objections:
I. That the patent issued after the death of James Mabin.
This court, in the Lessee of Wallace v. Sanders, 7 Ohio, 173, pt. 1, regarded the conveyance of a title from the United States to a person deceased as of no validity.
In 1836, the act of Congress was passed, by which the titles assumed to be convoyed by patents issued under these circumstances,. *278are vested in the heirs or assignees of the deceased. We suppose this removes the ground of the first objection.
II. That the proceedings in chancery against heirs unknown confer no interests and bind no rights.
The statute then in force (Chase’s Laws, 1279, sec. 14) authorizes proceedings against the heirs of decedents, without naming them, where their names are unknown; provided, that the complainant, before process or order against them, shall make an affidavit that he does not known their names. We suppose it to be within the legitimate scope of legislative power to direct the forms of process, and the system of proceeding; by which lands lying within its jurisdiction are to be affected; and it seems a convenient and necessary exercise of this power t’o devise the means of adjudicating the titles to land here, where owners are abroad or unknown.
A substantial compliance with the law is required. We regard it as having been practiced in the present case, for the affidavit, which is one of. the steps conferring jurisdiction, was made before any binding force was attempted to be exercised over the rights of the defendant.
Judgment for the plaintiff.