Johns. Rep. 77; 10 Johns. Rep. 23; 1 Mason, 153; 1 Hen. & Mun. 306; 4 Johns. Rep. 143; 2 Bibb, 628, 487. The statute of frauds and perjuries has no application to public grants. Neither fraud, nor the want of consideration, can be averred as grounds to impeach a patent on the appli cation of a creditor. the assignor to transfer the claim will not be found in the office of the principal surveyor in Ohio. It may or may not be found in the office of the register at Richmond, for I know of no law requiring it to be filed or recorded there. Suppose, then, a citizen of Ohio or of some other State, wishes to purchase a tract of land in the Virginia military reserve in Ohio, what But the doctrine of constructive notice does are the means within his reach, by which he not apply to the purchaser of a military war-may, in exercising ordinary diligence, shield rant, an entry, or a survey. himself against the consequences of constructive notice? The purchaser goes to the office of the principal surveyor for the district, and by the courtesy of that officer obtains permission to examine the records and *files of [*103 the office. And what does he find there? The warrant may be found there, or it may not, for reasons already stated. But constructive notice, if applicable at all, must be applied without regard to whether the warrant can, by any diligence, be found or not. If it is in the office, the purchaser will see from the face of it that it was issued to the soldier himself, or to heirs, or to an executor, or to a purchaser. But, in either case, the law presumes it properly issued; and, therefore, the law will not charge the purchaser with knowledge that it was improperly issued to the warrantee. Neither the entry nor the survey gives any notice by which the purchaser is put upon inquiry for the rights of others; nor do they furnish any clue by which such rights can be ascertained. Without intending to say that a warrant is not necessary to the validity of an entry, or that a survey would be good without an entry, I contend that a warrant is to be presumed from the existence of an entry; on the principle that as it would be a violation of duty on the part of the principal surveyor to make or record an entry without the authority of a warrant, and as the law will presume that the officer has duly executed his office, it follows, therefore, that an entry is proof, till the contrary appears, of the existence of a warrant. For the same reason a survey is presumptive evidence of the existence of an entry duly made. These are official acts, performed by officers appointed by public authority, and sworn to perform these duties. And the law gives them credit for fidelity till the contrary is shown; and nothing, surely, can be more just and reasonable. Besides, as the law does not direct the warrant to be recorded in the surveyor's office, and as it is not, in practice, recorded there, it may not be accessible to the purchaser; and, therefore, it would be unreasonable to charge him, 102*] by implication, with a knowledge of its contents. It may have been lost or destroyed after the entry was made. The State of Virginia, and afterwards the Congress of the United States, early made provision for these casualties, by making "a certifled duplicate of the warrant" equivalent to the original, for the purpose of obtaining a patent. Ohio L. Laws, 115, 133. And for another reason, the warrant may be beyond the reach of the purchaser. It may, at the time, be in the hands of a deputy-surveyor, for the purpose of executing a survey of that part of it which had not been surveyed before. Ohio L. Laws, 122. It is submitted, therefore, that the fact that the warrant may not at all times be within reach of the purchaser, affords a reason why he ought not to be affected with constructive notice of its contents. But, again, no more than ordinary diligence and prudence are required of a purchaser, in the cases where the doctrine of implied notice is admitted to be applicable. For, if a higher degree of diligence and attention than ordinary becomes necessary, the rule itself ceases. What are the facts of the case? The lands lie in the State of Ohio, where the office of the principal surveyor for the district is established. The tribunal that receives the evidence and adjudicates the right of the original claimant to bounty land, and which gives the certificate; and also the office which issues the warrant, are all established in the State of Virginia, distant not less than six hundred miles from the land. If the claim was assigned before the warrant issued, the evidence of the power of The warrant may have been assigned before or after its location; in either case, the paper containing the assignment may or may not be filed in the surveyor's office. If the requisite information cannot be obtained in the State where the land lies, will the court say that ordinary diligence requires the purchaser to visit the land office at Richmond, to examine for defects prior to the date of the warrant? To do this, a citizen of Ohio must travel a distance, in going and returning, of twelve hundred miles. The expenses of such a journey would exceed the value of the land, in many instances; and the effect would be to exclude from the privilege of purchasing these lands, all except a few wealthy speculators who might afford to incur the expense. I need make no remarks on the justice or wisdom of such a policy. Nor will I do more than ask the court to reflect on the consequences that must flow from establishing the doctrine of the court below; consequences which, could they be limited to future transactions, would be less disastrous: but we know they must operate on the past, and affect titles already acquired, thereby producing an aggregate of injury and suffering that no sagacity can foresee or calculate. The case of Reeder v. Barr, 4 Ohio Rep. 446, affords the first and only instance, as far as I know, in which the doctrine of implied notice has been applied to the recitals in a patent issued by the United States for a portion of the public domain. And the decree from which we have appealed seems to affirm the doctrine of that case, and to apply it, for the first time, I *believe, to the military titles derived [*104 from the laws of Virginia. During the period of fifty years that these titles have been the subject of litigation in every form known to the law, it is impossible | can go behind the patent, and examine the to doubt that many cases must have occurred equity asserted in the bill. in which the principle of presumptive notice would have been asserted, if it had been supposed by the courts, or bar, that such a principle was applicable to a purchaser of these titles. The absence of any adjudication in favor of the doctrine as now applied, is an argument of some force against it. Mr. Justice M'Lean delivered the opinion of the court: This is an appeal from the decree of the Circuit Court of Ohio. In their bill the complainants represent that they are the only heirs and legal representatives of John Hockaday, late of the County of New Kent, in the Commonwealth of Virginia. Whatever doubt might arise on this question on common law principles, there can be none when the peculiar system under which this title originated is considered. In Ohio and Kentucky this question has been long settled judicially; and this court, following the decisions of those States, have also decided it. Bodley et al. v. Taylor, 5 Cranch, 196. In the case of Polk's Lessee v. Wendall et al. 9 Cranch, 98, the court say "that every prerequisite has been performed, is an inference properly deducible, and which every man has a right to draw from the existence of the grant itself. It would, therefore, be extremely unreasonable to avoid a grant in any court, for irregularities in the conduct of those who are That Hockaday in the Revolution was a cap- appointed by the government to supervise the tain in the Virginia line on continental estab-progressive course of a title, from its comlishment, which, under the acts and resolutions mencement to its consummation in a patent. of Congress entitled him to four thousand But there are some things so essential to the acres of land in the Virginia reservation, within the State of Ohio. That in 1799 Hockaday died, leaving as his only child and heir Hannah C. Ware, who had intermarried with Robert S. Ware, and who was the mother of a part of the complainants, and the grandmother of the others. That Hockaday left a will in which he disposed of his personal estate only, and appointed Ware, with two other persons, his executors. Ware proved the will, the others declining to act; and that he wholly neglected his duties as executor, and never settled the estate. That their mother died in 1805, and Robert S. Ware, their father, also died some years afterwards. That in the year 1808, one Joseph Ladd, who has since deceased, being insolvent and without heirs, fraudulently made a contract with the executor for the sale of the above military right; and having obtained the certificate of such right from the Executive Council of Virginia, the same was assigned to Ladd for the consideration of forty dollars and a pair of boots. That on this certificate and assignment Ladd obtained four warrants of a thousand acres each, as the assignee of Ware, the executor of Hockaday. One of these warrants was assigned to George 105*] Hoffman by *Ladd, and through certain other assignments to Brush. By a part of this warrant the two tracts of land in controversy were entered, and for which Brush obtained patents from the United States, dated the 23d January, 1818. And the complainants allege that Brush was a purchaser with notice of their equity; and they pray that he may be decreed to convey to them the title, etc. In his answer the defendant states that he was a bona fide purchaser, for a valuable consideration, and without notice of the complainants' equity. And he insists if the court shall decree for the complainants, that he is entitled to the part usually given to the locator, for making the entry and obtaining the title for the land. And also that he is entitled to moneys paid for taxes, etc., on the land. This cause has been ably argued on the part of Brush, the appellant. The question which lies at the foundation of this controversy, and which, in its order, should be first considered, is, whether the court validity of the contract, that the great principles of justice and of law would be violated, did there not exist some tribunal to which an injured party might appeal, and in which the means by which an elder title was acquired might be examined." And the court, after showing that a court of equity was the [*106 proper tribunal to make this examination, remark, "But there are cases in which a grant is absolutely void, as where the State has no title to the thing granted, or where the officer had no authority to issue the grant. In such cases the validity of the grant is necessarily examinable at law." The same case was again brought before the court by a writ of error, and is reported in 5 Wheat. 293, in which the court held that the system under which land titles originated in Tennessee being peculiar, constituted, with the adjudication of its courts, a rule of decision for this court. In the case of Miller et al. v. Kerr et al., 7 Wheat. 1, it was held that an equity arising from an entry of land made on a warrant which had been issued by mistake, could not be sustained against a patent issued on a junior entry. The court say: "The great difficulty in this case consists in the admission of any testi mony whatever which calls into question the validity of a warrant issued by the officer to whom that duty is assigned by law. In examining this question, the distinction between an act which is judicial and one which is merely ministerial must be regarded. The register of the land office is not at liberty to examine testimony, and to exercise his own judgment respecting the right of an applicant for a military land warrant." And in the case of Hoofnagle et al. v. Anderson, 7 Wheat. 212, another question was raised on an entry made by virtue of the same warrant. The mistake in the warrant consisted in this: Thomas Powell, having performed military services in the Virginia State line, a certificate by the Executive Council of Virginia was obtained by his heir, which entitled him to a certain amount of land. On this certificate, the register of the land office at Richmond, Virginia, issued a warrant, which, instead of reciting that the services were performed in the State terial. They have neither the form nor effect of a judicial proceeding. line, stated that they were performed in the State line on continental establishment. This mistake was important, as the tract of coun- It may be admitted that presumptions arise try in Ohio in which the warrant was located in favor of the acts of a ministerial officer, if was reserved, in the cession by Virginia, for the apparently fair and legal, until they shall be satisfaction only of warrants issued for impeached by evidence. But in this case, there military services in the State line on conti- is no impeachment of the acts of the register. nental establishment, and consequently was The evidence on which he acted is stated on not subject to the right of Powell. And the the face of the warrant, which enables the 107] court remark, how far the patent proper tribunal, as between the parties interought to be affected by this error is the ques-ested, to determine the question of right, which tion on which the cause depends. They say the register had neither the means nor the there was no ground to suspect fraud; that the power to do. warrant was assignable, and carried with it no evidence of the mistake which had been committed in the office; that it had been assigned for a valuable consideration, and the purchaser had obtained a patent for the land without actual notice of any defect in the origin of his title; and they held that the patent gave a good title as against anyone whose entry was subsequent to its date. A patent appropriates the land called for, and is conclusive against rights subsequently acquired. But where an equitable right, which originated before the date of the patent, whether by the first entry or otherwise, is asserted, it may be examined. The patent, 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. Bouldin et ux. v. Massie's Heirs et al. 7 Wheat. 149. The controversy in this case does not arise from adverse entries, but between claimants under the same warrant. And it is admitted that Ware, as executor, had no power to assign the military right, which, on the decease of Hockaday, descended to his heirs. It is too clear to admit of doubt that Ladd, by circumvention and fraud, obtained the assignment from the executor, which enabled him to procure the warrant from the register. The complainants do not deny the genuineness of the certificate, the assignment, or the warrant, but they say that the executor had no right to make the assignment; and that the issuing of the warrant by the register does not preclude them from raising that question. Until the patents were obtained, this warrant, though assigned and entered in part, on the land in controversy, conveyed only an equitable interest. Hoffman, to whom Ladd assigned it, and the other assignees took it, subject to all equities. In their hands, unless affected by the statute of limitation or lapse of time, any equity arising from the face of the instrument could be asserted against them, the same as against Ladd. Brush, being the last assignee, obtained the patents in his own name as assignee, and these vested in him the legal estate. But this, on the principles which have been long established, in relation to these titles, does not bar a prior equity. The complainants are proved to be the heirs of Hockaday, and a part of them were minors at the commencement of this suit. All of them, in age, were of tender years when the warrant was assigned, and it appears that none of them came to a knowledge of their rights, until a short time before the bill was filed. And this is an answer both to the statute of limitations and the lapse of time. The [*109 As between Ladd and the complainants, can statute of Ohio does not run against non-resithere be any doubt that this case would be ex-dents of the State; nor can lapse of time operaminable in equity? Could the issuing of the ate against infants, under the circumstances warrant by the register interpose any objec- of this case. tion to such an investigation? The great question in this controversy is, whether Brush is chargeable with notice. Ladd, his heirs or assigns, signed by Ware, executor of Hockaday, he having received, as stated, full value for the same. It is insisted that the register, of necessity, before he issues the warrant must determine The certificate of the Executive Council of the right of the applicant, and that in doing Virginia stated that "the representatives of so, he acts judicially. That presumptions not John Hockaday were entitled to the proportion only arise in favor of such acts, but unless of land allowed a captain of the continental fraud be shown, they are not open to examina- line for three years' service." To this was ap tion. pended a request to the register of the land The Executive Council of Virginia, in deter-office to issue a warrant, in the name of Joseph mining the right of Hockaday's heirs, may be said to have acted judicially. But the register, in the language of the court, in one of the cases above cited, acted ministerially. The court say he was not authorized to examine witnesses in the case, but was bound to act upon the face of the certificate. The parties interested were not 108*] *before him, and he had no means of ascertaining their names, giving them notice, or taking evidence. And under such circumstances, would it not be a most extraordinary rule which should give a judicial character and effect to his proceeding. He acts, and must necessarily act from the face of the paper, both as it regards the certificate of the Executive Council, and the assignment of such certificate. His acts, in their nature, are strictly minis Four military warrants, of one thousand acres each, were issued by the register, "the 9th of August, 1808, to Joseph Ladd, assignee of Robert S. Ware, executor of John Hockaday, deceased." By virtue of one of these warrants, four hundred acres of the land in dispute were entered the 8th of June, 1809, in the name of George Hoffman, assignee, and two hundred acres in the same name, the 18th of August, 1810. These entries were surveyed in May, 1810, and on the 20th of January, 1818, patents were issued to "Brush, assignee of John Hoffman, who was assignee of Joseph Hoffman et al., assignees of George Hoffman, who was assignee of Joseph Ladd, assignee of Robert S. Ware, executor of Hockaday," etc. It is insisted that the general doctrine of notice does not apply to titles of this description. And this position is true, so far as regards the original entry. 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 holder of the warrant who enters the same land, with full 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, or in any respect be defective, it conveys no notice to a subsequent locator, nor can it be made good by a subsequent purchaser without notice. Kerr v. Watts, 6 Wheat. 560. But, with these exceptions, the doctrine of notice has been considered applicable to these military titles, as in other cases. And no reason is perceived why this rule should not prevail. 110*] *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. Brush, it is insisted, was a bona fide purchaser for a valuable consideration, without notice. The answer under which this defense is set up is neither in substance nor in form free from objection. It does not state the amount of consideration paid, the time of payment. nor does it deny the circumstances from which notice can be inferred. Boon v. Chiles, 10 Peters, 211, 212. But, passing over the considerations which arise out of the answer, we will inquire whether the defendant is not chargeable with notice, from the facts which appear upon the face of his title. The entry on the books of the surveyor, kept at the time in the State of Kentucky, was the incipient step in the acquisition of the title. This entry could only be made by producing to the surveyor, and filing in his office, the original warrant, or a certified copy of it. The survey was then made, and a plat of the land, by a deputy, who returned the same to the principal surveyor's office. This survey is called the plat and certificate, and is assignable by law; but, without an entry founded upon a warrant, it is of no validity. On the transmission of this survey, under the hand and seal of the principal surveyor, accompanied by the original warrant or a copy, to the general land office, a patent is issued to the person apparently entitled to it. In issuing the patent, the commissioner of the land office performs a ministerial duty. He examines no witnesses, but acts from the face of the papers, and exercises no judgment on the subject, except so far as regards matters of form. The patent, therefore, conveys the legal title only, leaving prior equities open to investigation. This is the history of this title, and of every other in the same district of country. And the question arises whether the respondent, under the circumstances, was a bona fide purchaser for a valuable consideration, without notice. In his answer, he says that he never saw the warrant, the entries, nor the surveys [*111 on which the patents were founded; and that he had no information as to the derivation of the title, except that which the patents contain. The question is not whether the defendant in fact saw any of the muniments of title, but whether he was not bound to see them. It will not do for a purchaser to close his eyes to facts; facts which were open to his investigation, by the exercise of that diligence which the law imposes. Such purchasers are not protected. It is insisted that the plats and certificates being assignable, the defendant might well purchase them without a knowledge of the facts contained on the face of the warrant. But was he not bound to look to the warrant as the foundation of his title? The surveys were of no value without the warrant. No principle is better established than that a purchaser must look to every part of the title which is essential to its validity. The warrant was in the land office of the principal surveyor; and although this, at the time, was kept in Kentucky, the defendant was bound to examine it. In this office his entries were made, and to it his surveys were returned. And from this office was the evidence transmitted on which the patents were issued. Can it be contended that the defendant, who purchased an inchoate title, a mere equity, was not bound to look into the origin of that equity? As a prudent man, would he not examine whether that which he bought was of any value? The records of the land office, and the papers there on file, showed the origin of the title, and the steps which had been taken to perfect it. By the exercise of ordinary prudence he would have been led to make this examination; and, in law, he must be considered as having made it. And here the question arises, whether the statements of the warrant, which were afterwards copied into the patents, that the right originally belonged to Hockaday, descended to his heirs, on his decease, and had been assigned to Ladd, by his executor, were not sufficient to put the defendant on inquiry. Now, 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 their rights [*112 cannot be devested or impaired by the unauthorized acts of the executor. The warrant, then, showed the purchaser that this right, which pertained to the realty, and which, on the death of Hockaday, descended to his heirs, had been assigned by the executor. Was not this notice? Was it not a fact, essentially connected with the title purchased by the defendant, which should have put him upon inquiry? If it would do this, it was notice; for whatever shall put a prudent man on inquiry is sufficient. And this rule is founded on sound reason as well as law. How can an individual claim as an innocent purchaser, under such a circumstance? But it is argued that it would impose on the defendant an unreasonable duty, to hold that he was bound not only to examine the warrant in the land office in Kentucky, but to hunt up the will of Hockaday, and see what powers it conferred on 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 upon the validity of his title, are the rights of innocent persons to be prejudiced through his negligence? The will of Hockaday was proved the 11th day of July, 1799, before the County Court of New Kent, in Virginia, and recorded in the proper records of that county. When the defendant purchased the title, he knew that it originated in Virginia, had been sanctioned by the Executive Council of that State, and that the warrant had been issued by the register at Richmond. These are matters of public law, and are consequently known to all. But, in dependently of this, every purchaser of a military title cannot but have a general knowledge of its history. Why was not the defendant bound to search for the will? The answer given is, the distance was too great, and the place where the will could be found was not stated on the warrant, or on any of the other papers. That mere distance shall excuse inquiry in such a case, would be a new principle in the law of notice. The certificate of the original right, and the 118*] warrant, were obtained in Richmond, Virginia. And in the office records and papers of the Executive Council, or in those of the register in Richmond, a copy of the will, probably, could have been found. And if such a search had been fruitless, it is certain that it could have been found on the public records of wills of New Kent County. A search short of this would not lay the foundation for parol evidence of the contents of a written instrument. And shall a purchaser make a bad title good by neglecting or refusing to use the same amount of vigilance? will did not authorize the sale of the premises, and the court held that this was notice to the defendant. So in the case of Jackson, ex dem. Livingston v. Neely, 10 Johns. Rep. 374, it was held that where a deed recited a letter of attorney, by virtue of which the conveyance was made, which was duly deposited with the clerk of Albany, according to the Act of the 8th January, 1794, it was held to be sufficient notice of the power by means of the recital, to a subsequent purchaser, who was equally affected by it, as if the power itself had been deposited. An agent receiving notes from an executor. payable to him as executor, as security for advances by the principal to the executor on his *private account, and not as executor, [*114 affects his principal with notice that it is a dealing with an executor with the assets for a purpose foreign to the trusts he was to discharge. (2 Ball & Beat. 491.) When a purchaser cannot make out his title but through a deed which leads to a fact, he will be affected with notice of that fact. Mertins v. Jolliffe, Amb. 311. A made a conveyance to B, with a power of revocation by will, and limited other uses. If A dispose to a purchaser by will, a subsequent purchaser is intended to have notice of the will as well as of the power to revoke; and this is a notice in law. And so in all cases where a purchaser cannot make out a title, but by deed which leads to another fact, notice of which a purchaser shall be presumed cognizant; for it is crassa negligentia that he sought not after it. Moore v. Bennet, 2 Ch. Cas. 246. Notice of letters patent, in which there was a trust for creditors, is sufficient notice of the trust. Dunch v. Kent, 1 Vern. 319. That which shall be sufficient to put the party upon inquiry, is notice. 13 Ves. 120. On a full consideration of this part of the case, we think that the defendant must be held to be a purchaser with notice. The Circuit Court considered the defendant as vested with a right to such part of the land as is usually given to a locator, and directed one fourth of the two tracts to be laid off to In the case of Reeder et al. v. Barr et al. 4 him so as to include his improvements; and Ohio Rep. 458, the Supreme Court of Ohio held they also decreed to the defendant three that where a patent was issued to Newell, as fourths of the taxes paid by him, with interassignee of the administrator of Henson Reed-est. This part of the decree is equitable; and er, deceased, it was sufficient to charge a sub- as we coincide with the views of the Circuit sequent purchaser with notice of the equitable Court on all the points of the case, the derights of the heirs of Reeder. cree is affirmed. Error, V. It is difficult to draw a distinction, in principle, between that case and the one under consideration. An administrator in Ohio has no *JOHN B. GORMAN et al. Plaintiffs in [*115 power, unless authorized by the Court of Common Pleas, to sell or convey an interest in land; nor has an executor in Virginia any pow- PETER LENOX'S EXECUTORS, Defendants er over the realty, unless it be given to him in the will. In this case, therefore, the purchaser was as much bound to look into the will for the On a demurrer being filed, the rule is that the authority of the executor, as the Ohio pur-party who has committed the first fault shall have chaser was bound to look into the proceedings of the court for the authority of the administrator. The case of The Lessee of Willis v. Bucher, 2 Binn. 455, is also in point. The defendant derived his title from William Willis, to whom a patent had issued, reciting that the title was derived under the will of Henry Willis. This in Error. Pleading-evidence-set-off. Judgment against him. Where a declaration is on a bond given to prosecute with effect a writ of replevin, and breach assigned is, "that the suit was not prosecuted with effect," it is sufficient. A certiorari has been issued by the Supreme Court of the Circuit Court, on an allegation of diminution, and the judgment in the replevin suit certified to the Supreme Court under the certiorari substantially differed from the judgment described in the declaration on the replevin bond, in a suit i |