the court was to put these claimants in respect to the lands which they claimed, in the condition they would have been if Florida had not been ceded to the United States. It was the intention of the court, in the language of the treaty, to put them in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of His Catholic Majesty. Can it be supposed for a moment, when the king, by his royal order, directed the Intendant-General of Cuba to inquire into the subject of the indemnity which should be made to the house of Panton, Leslie & Company, for services to the crown and for Indian depredations, that he would have sanctioned, or that the Intendant-General would have ventured to propose a cession of land, including public stores and a fortress, which had been built [*89 at a great expense, at an important point on the coast, which was essential to control and keep the Indians in subjection, and all-important to resist external attack.

to 1818. Caro says the governor exercised | Court of the United States. As to the land 87* *both civil and military jurisdiction. covered by the fort and appurtenances, to some When Florida was ceded to the United States, distance around it, it became unnecessary to inSt. Marks was given up as a military fortress quire into the effect of the deeds, as the counof the King of Spain. Such is the history of sel of the petitioners have in open court disthe fortress of St. Marks, taken from the tes- claimed any pretensions to it." It is not, howtimony and the witnesses of the claimants in ever, upon this disclaimer of the claimants' the original case. Is it surprising, then, that counsel, that the court relies to sustain the the court in its mandate should have excepted judgment of the court below upon the manthe fort and land directly adjacent to it from date. It is cited only to them to show that its confirmation of the claimant's title to the the subject matter of the present controversy lands bought by them from the Indians? The was considered by the court. That the court, king's royal order to establish a fort at St. not knowing at that time what should be the Marks, the occupancy of the fortress for more reservation appurtenant to the fort of St. than twenty years before any grant was made Marks, directed it to be ascertained, and exto Forbes, twenty-five years before the grant cepted it absolutely from the grant of the was made, which includes it, and forty years' claimants; declaring it to be a part of the puboccupation of it with the use of the land ad-lic lands of the United States. The object of jacent, seemed to the court to be inconsistent with the idea that it was intended to be included in the sale by the Indians, or by the confirmation of that sale by Governor Folch. It must be remembered, also, that when Governor Folch gave possession of the land to the grantees, that the fort was retained, and that the land, to the extent at least of what is termed the circle of military jurisdiction, had been cleared, and that the grantees, though living by permission for protection of themselves and their trade within that circle, never exercised by cultivation or otherwise any acts of ownership over any part of it. Besides, the court was advised, when the decision in the original case was made, that by the laws of the Indies, reservations of lands were made appurtenant to forts, though the extent of such reservations was not known. It was then, however, a subject of inquiry, and would no doubt have been fully investigated, if the counsel for the claimant had not admitted in his argument that the Indian title for the sale of the fort of St. Marks had been extinguished by a negotiation made by the Governor of West Florida. In the opinion of the court, given by Mr. Justice Baldwin, is found the following paragraph: "It is objected that the grant of 1811 is invalid, because it comprehends the fort of St. Marks, then actually occupied by the troops of the king. It is in full proof that the site of St. Marks and the adjacent country was within the territory claimed by the Seminole Indians. Rec. 12, 131 603-607, 618. It is not certain, from the evidence, whether it was purchased from the Indians, or merely occupied by their permission; there seems to be no written evi88*] dence of the purchase, but no witness asserts that possession was taken adversely to the Indian claim, and it is clearly proved to have been amicably done. Rec. 232, 306, 581. Whether the Indians had a right to grant this particular spot then or not, cannot affect the validity of the deeds to the residue of the lands conveyed in 1811. The grant is good so far as it interfered with no prior right of the crown, according to the principles settled by this court in numerous cases, arising on grants by North Carolina and Georgia, extending partly over the Indian boundary, which have uniformly been held good, as to whatever land was within the line established between the State and the Indian territory. Wear v. Danforth, 9 Wheat. 673; Patterson v. Jenckes, 2 Pet. 216; and Winn and Patterson, decided by the Supreme

|

Does anyone believe, when Governor Folch sanctioned the purchases, confirmed and gave possession of the lands to Forbes & Company, that he would have done either if he had thought he was giving to them a title to the fort of St. Marks, and its circle of military jurisdiction, against the king; or that the Captain-General of Cuba, to whom Governor Folch reported his proceedings in this matter, would have approved and declared that the king would confirm them, if he had supposed that he was permitting the Indians to sell a fortress then garrisoned by the troops of Spain, and which had been so for more than twenty years? Is it not certain nothing of the kind was intended, when it is remembered that Governor Folch, who superintended the sale of the land, marked out its boundaries, and gave possession of it to the original grantees, says, "It is notorious and public that at the establishment of the fort of St. Marks, at Appalachia, in the year 1787, all the solemnities and requisites were observed to obtain from the Indians, in sale, the lands necessary to that object?”

We will not enter into the question how far the appropriation of the land for a fortress, by order of the government, extinguished the Indian title. It might be done successfully, upon the position taken by this court in respect to the rights of European monarchs to Indian lands in North America, in Johnson and M'Intosh, 8 Wheat. We are inclined to put this

It is reason.

case apon facts disclosed by the claimants' evi- | fortifications in a time of war. dence in the former cause, and the inferences able, then, to conclude that European monarchs and arguments which may be drawn from in the construction of permanent fortifications, them, because the court did not do so, in its in the new world, upon Indian lands before it decision, in consequence of the admission of had been granted by the sovereign, or permitcounsel "that the land covered by the fort and ted to be alienated by the Indian, intended to appurtenances, to some distance around it," appropriate so much of the land adjacent to a were not contended for. fortification as was necessary to defend it. In addition to what has been said, however, That it was so intended in the instance of St. in respect to St. Marks and the appurtenant Marks is strongly corroborated by the testiland not being within the grant from the mony of Col. Butler, who says the woods had Indians to the claimants, we remark that the been cleared away by the authorities at St. subject may be satisfactorily disposed of by a Marks to the distance of a mile and a half reference to the second article of the treaty from the walls. Another witness says no with Spain. "His Catholic Majesty cedes to buildings were erected outside of the fort bethe United States, in full property and sov- fore 1827, and then by permission of the Unit90*] ereignty, all the territories which be-ed States. It is hard to resist the conclusion long to him, situated to the eastward of the that such a clearing before the sale by the InMississippi, known by the name of East and dians, without the cultivation or occupancy of West Florida; the adjacent islands dependent any part of it, by the grantees from the time on said provinces; all public lots, and squares, of the Indian sale to the surrender of the fort vacant lanus, public edifices, fortifications, bar- to the United States, does not indicate an inracks, and other buildings, which are not pri- tention upon the part of the authorities of vate property." In construction of this article, Spain to reserve some land adjacent to the fort it will be admitted that the last member of the for military purposes; and the acquiescence of sentence cannot refer to any of the enumerated the purchasers, that though within the boundcessions, notorious as public property, or that aries of the grant, the fort and land attached it must be confined to the terms, "other build- to it by military usage was not intended to be ings in connection with it." The treaty then conveyed. Nor can we admit, as it was argued secures to the United States the fort of St. by the counsel of the appellants, that the inMarks, and so much land appurtenant to it stances cited in the record of grants of land, up as, according to military usage, was attached to the walls of fortifications, by the Spanish generally to forts in Florida or the adjacent authorities in Florida and Louisiana, disprove colonies. Was there any such usage, and has the existence of a military usage to reserve it been established by sufficient testimony to land adjacent to forts in them. Those instances sustain the judgment of the court below? We are exceptions out of the military laws of Spain, think there was, and that the proofs are suf- as contained in the royal ordinances; which deficient. At the instance of the claimants, the clare that "a radius of one thousand five huntestimony of the director of engineers was dred varas is measured from the salient angles taken by order of the Governor-General Tacon. of the covered way." We do not think it necHis evidence on the record before us is that essary to remark further upon the opinion giv. "a radius of fifteen hundred Castillian varas is en by the chief engineer, in respect to the measured from the salient angles of the manner in which such titles were acquired to covered way, all around the fortification." That land adjacent to fortifications, or the extent of such was the rule, is confirmed by a document the military jurisdiction over them, than to obintroduced by the claimants, as evidence in this serve the fact of certain reservation being decase. In 1801, a petition was presented to Gov-clared by him, as a fact; we require something ernor White for a grant of land at Macariz. He referred it to the chief engineer. The engineer reported it to be within one thousand five hundred yards of the castle, "that it cannot be cultivated in corn, nor can ditches, or thorn fences be allowed; that plants of a low growth, and vegetables may be permitted to be cultivated, and it may be allowed for the security of the produce to erect simple post and rail fences, which may be sufficient to prevent animals from breaking in." Under these restrictions it was granted, so that it could only be used in such a way as could not interfere with the defensive and offensive power of the castle. Several witnesses were examined on this point; all of them concur in saying a fortress cannot be defended unless it has the command of the ground around it to a considerable extent. Colonel Murat gives as the usage of the European armies, that from the salient angles of the covered way, a radius of three thousand four hundred yards is marked, in which it is not permitted to erect any permanent buildings, or embankment, or 91] stone fences, or *ditches. We know it, also, to be the usage of all civilized nations, to assert such rights over the ground adjacent to

more than his conclusion or inference that there was no reservation according to the military usage and ordinances of Spain, in the instance of St. Marks.

*Our opinion is that the court below [*92 has fully apprehended and executed the judg ment of this court, and its judgment is accordingly affirmed.

This case came on to be heard on the tran

script of the record from the Superior Court of the Middle District of Florida, and was argued by counsel; on consideration whereof, it is orof the said Superior Court in this case be, and dered and decreed by this court that the decree the same is hereby affirmed.

HENRY BRUSH, Appellant,

v.

JOHN H. WARE et al., Appellees.

[*93

Patent for land in Virginia reserve in OhioVirginia land law-court can go behind patent to examine equity-what makes valid entry-executor no power over real estate except under will-caveat emptor.

The executor of an officer in the Virginia line on

sand acres in the Virginia military reserve. Afterwards, on the motion of the complainants, the bill was dismissed as to all the defendants except Henry Brush; and a decree having been entered in the Circuit Court in favor of the complainants, Henry Brush prosecuted this appeal.

the continental establishment, obtained a certifacts and resolutions of Congress, to four thou vation. John Hockaday was entitled, under the cate from the Executive Council of Virginia, as executor, for four thousand acres of land in the Virginia reserve, in the State of Ohio, and afterwards sold and assigned the same. Entries were made, and warrants issued in favor of the assignees, and a survey was made under one of the warrants, in favor of one of the assignees, a bona fide purchaser, who obtained a patent from the United States for the land. It appeared that the executor had no right, under the will, to sell the land to which the testator was entitled. The patent was granted in 1818, and the patentee had been in possession of the land from 1808. The heirs of the of ficer, entitled to the land for military services in 839, some of them being minors, filed a bill to compel the patentee to convey the land held by him to them. Held, that the patentee was a purchaser with notice of the prior title of the heirs, and that he was bound to make the conveyance asked from Whatever doubts on common law principles might have existed on the question whether the court can go behind the patent for lands, and examine the equity asserted in a bill claiming the land against the patent in Ohio and Kentucky, this question has been long judicially settled; and this court, following the decisions of those States, have also decided it. The cases of Bodley et al. v. Taylor, 5 Cranch, 196, and Polk's Lessee v. Wendall, 9 Cranch, 93; 5 Wheat. 293; Miller et al. v. Kerr. 7 Wheat. 1; Hoofnagle v. Anderson, 7 Wheat. 212, cited. A patent appropriates the land called for, and is conclusive against rights subsequently acquired. But when an equitable right, which originated before the date of the patent, whether by the first entry or otherwise, is asserted, it may be examined.

him.

A patent for land under the Virginia land law, as modified by usage and judicial construction in Kentucky and Ohio, conveys the legal title, but leaves all equities open.

As the heirs of John Hockaday, the com. plainants claimed title to the land in question. John Hockaday made his will, disposing of his personal property only; and Ware, one of the executors, proved the will. As executor of Hockaday, he made a fraudulent sale of the military right of the testator to one Joseph Ladd, and having obtained from the Executive Council of Virginia a certificate of the right of John Hockaday for the land to which he was entitled, he assigned the same to John Ladd. On this certificate Ladd obtained, as the assignee of Ware, executor of John Hockaday, four warrants, each for one thousand acres. Part of the land under one of these warrants, through assignments to George Hoffman and others, became the property of Henry Brush; who, under an entry made by George Hoffman, obtained a patent for the land held by him from the United States, on the twenty-third of January, 1818.

The bill of the appellees asserts that Henry Brush was a purchaser with notice of the superior title of the heirs of John Hockaday, and prays that he may, by a decree of the [*95

To make a valid entry, some object of notoriety must be called for; and unless this object be proved to have been generally known in the neighborhood of the land at the time of the entry, the hold-court, be directed to convey the land to them, er of a warrant who enters the same land with full they having the prior equity. notice of the first entry will have the better title. And so if an entry be not specific as to the land intended to be appropriated, it conveys no notice to the subsequent locator, nor can it be made good by a subsequent purchase without notice. But with those exceptions, the doctrine of constructive notice has been considered applicable to military titles as in other cases, and no reason is perceived why this rule should not prevail. From the nature of these titles and the force of circumstances, an artificial system has been created, unlike any other, and which has long formed the basis of title to real estate in a large and fertile district of country. The peculiarities of this system having for half a century received judicial sanctions, must be preserved; but to extend them would be unwise and Impolitic.

No principle is better established than that a purchaser must look to every part of the title which is essential to its validity. 94*] An executor has not, ordinarily, any power over the real estate. His powers are derived from the will, and he can do no valid act beyond his authority. Where a will contains no special provision on the subject, the land of the deceased descends to his heirs; and this right cannot be devested or impaired by the unauthorized acts of the executor.

The law requires reasonable diligence in a purchaser to ascertain any defect of title. But when such defect is brought to his knowledge, no inconvenience will excuse him from the utmost scrutiny. He is a voluntary purchaser, and having notice of a fact which casts doubt on the validity of his title, the rights of innocent persons are not to be prejudiced through his negligence.

THE
HE appellees, John H. Ware and others,
heirs of John Hockaday, an officer in the
Virginia line on the continental establishment,
filed their bill in the Circuit Court of Ohio
against the appellant, Henry Brush, and
against others, for the recovery of certain lands
in the State of Ohio, in the military reser-
NOTE. That patents for lands may be set aside

for fraud, see note to 5 L. ed. U. S. 381.

In the answer of Brush, he says the land in controversy was granted to him by patents dated January 23, 1818; that he has no recollection or belief that he ever say the warrant, entry, or survey, or copies of either; that he is an innocent purchaser for a valuable consider ation; he denies all notice of complainant's claim, at or before the emanation of the patents, and all knowledge of any fraud; he says he believes that the purchase by Ladd was fair, and for a valuable consideration; that he had no knowledge what the will of Hockaday contained he says he has been in possession, under claim of title, since 1808, and has made lasting and valuable improvements, and insists that complainants ought to be barred by the statute of limitations, and that at any rate he ought to be paid for all improvements. And by his amended answer, he claims compensation for taxes paid, and for an allowance for a locator's share; for expenses in perfecting the title, and claims all the surplus land in the surveys.

The case was argued by Mr. Mason for the appellant. No counsel appeared for the appellees.

Mr. Mason. The appellant is a purchaser for valuable consideration without actual notice, and holds the land in controversy by patent from the United States.

The heirs of John Hockaday, deceased, are proceeding by bill in chancery to recover the land, on the alleged ground that the assignment of the claim of their ancestor to bounty land was made by his executor without authority, and, consequently, that their rights are not devested or impaired by that transfer.

Having acquired the legal title without notice of any adversary claim, the appellant is entitled to the aid and protection of the court; "and upon this principle, that all men who stand on equal ground shall have equal equity; because the court cannot do anything for one without injuring the other." No title can be better than the title of such a purchaser. If he has a legal title, the court cannot interpose. Lord Drogheda v. Malone, Finley's Digest; cited in note to Mitford's Ch. Pl. 3d Am. ed. p. 340.

2. Because the purchaser, though put upon inquiry by facts already known, cannot, by the exercise of ordinary diligence and prudence, arrive at the knowledge of other facts necessary to be known.

3. Because in the case of military warrants, they are issued by the authority of a sovereign State, in pursuance of law; and the legal presumption is that its officers have performed their duty in executing the trusts confided to them.

4. Because, lastly, such warrants are trans96*] Is the appellant affected by construc-ferable by assignment, and ought to pass, like tive notice. commercial paper, into the hands of a bona fide purchaser, discharged from all equities, of which he had not actual notice.

Presumptive notice is where the law imputes to a purchaser the knowledge of a fact, of which the exercise of common prudence and ordinary diligence must have apprized him. As where a purchaser cannot make out a title but by a deed which leads him to another fact, whether by description of the parties, recital or otherwise, he will be deemed connusant

thereof.

Constructive notice is, in its nature, no more than evidence of notice, the presumptions of which are so violent that the court will not allow of its being controverted. 2 Sug. Vend. 292; Newl. Cont. 511.

In Dexter v. Harris (2 Mason's C. C. Rep. 536), Mr. Justice Story says: "There is no such principle of law as that what is matter of record shall be constructive notice to a purchaser. The doctrine upon this subject, as to purchasers, is this, that they are affected with constructive notice of all that is apparent upon the face of the title deeds under which they claim, and of such other facts as those already known necessarily put them upon inquiry for, and as such inquiry, pursued with ordinary diligence and prudence, would bring to their knowledge. But of other facts extrinsic of the title, and collateral to it, no constructive notice can be presumed, but it must be proved."

In Flagg v. Man, 2 Sumner's C. C. Rep. 556, the same learned judge, after stating that constructive notice could not be rebutted, thought that the cases he had referred to ought to "admonish courts of equity in this country, where the registration of deeds, as matters of title, was universally provided for, not to enlarge the doctrine of constructive notice, or to follow all of the English cases on this subject, except with a cautious attention to their just application to the circumstances of our country, and to the structure of our laws."

These propositions he hoped to maintain, both upon reason and authority.

The doctrine of constructive notice has been too long established to be now called in question. Therefore, it is not denied to be law, as applied by courts of equity to deeds and other instruments of writing for the transmission of real estate from one individual to another. Public grants are supposed to rest upon a dif. ferent foundation from that of private conveyances. They emanate from the sovereign power of the country, according to certain rules and forms of proceeding prescribed by itself, for the regulation of its own action. And when so issued, no matter what recitals the patent may contain, "every man has a right to draw from the existence of the grant itself," the “inference that every prerequisite has been performed," and that these rules have been complied with on the part of the grantor. The legal presumption is in favor of the validity of every grant issued in the forms prescribed by law."

These presumptions are not understood to exist in favor of deeds and other transactions between private citizens; on the contrary, such deeds are not of themselves proof of title, and can be made so only by the aid of extrinsic evidence.

*A deed or will is merely a link in the [*98 chain of title, of which a patent is the beginning. The former transmits a legal title already in existence the latter creates the legal title, and brings it into existence.

A public grant is not only an appropriation of the land, but is itself a perfect title. Green v. Lighter et al. 8 Cranch, 247, 248.

Officers are appointed and commissioned by the government for the express purpose of conducting and supervising all the preliminary proceedings from the origin to the consummation of the title; and when these incipient measures are completed, and the grant issued, the law presumes that the government agents

Chancellor Kent (4 Com. p. 172, old ed.) declared, "It was, indeed, difficult to define, with precision, the rules which regulate implied or constructive notice, for it depended upon the infinitely varied circumstances of each case.' I shall contend that the doctrine of construct-have performed their duty, and that the grant ive notice is not applicable to grants for land issued by public authority, nor does it apply to the purchaser of a military land warrant issued by the State of Virginia, nor to the pur97] chaser of an entry or survey in the State of Ohio, made in virtue of such warrant. 1. Because there is a legal presumption that the acts of the public agents employed to superintend and conduct the proceedings from the commencement of an inceptive title to its consummation in a grant, have been in conformity with the law.

is valid. In one word, it is a legal presumption in favor of a patent that there are no defects behind it, by which it can be invalidated or avoided. But, notwithstanding this presumption, it is admitted that defects may, in fact, exist. And hence, it is contended on the other side. that if the patent contains recitals which would fairly conduct an honest inquirer to the discovery of these defects, a purchaser is justly chargeable with notice of them, whether he made inquiry or not. And this upon the principle that he is guilty of crassa negligentia, in

not examining the nature and extent of a dan- | nounced by courts of justice; and are, ordiger of which he had thus received notice. Will the law impute gross negligence to a purchaser for omitting to search for defects in the origin of his title, in a case where the law, at the same time, presumes that no defects exist? Is not one presumption inconsistent with the other? Can they both exist together in the same case? And if they cannot, which ought to yield? Can it be tolerated as just, in any system of jurisprudence, that the law should first invite the confidence of the purchaser, and then turn against him, and treat that very confidence as criminal?