Слике страница
PDF
ePub

Johns. Rep. 77; 10 Johns. Rep. 23; 1 Mason, the assignor to transfer the claim will not be 163; 1 Hen. & Mun. 306; 4 Johns. Rep. 143; 2 found in the office of the principal surveyor in Bibb, 628, 487.

Ohio. It may or may not be found in the of. The statute of frauds and perjuries has no fice of the register at Richmond, for I know of application to public grants. Neither fraud, no law requiring it to be filed or recorded there. por the want of consideration, can be averred Suppose, then, a citizen of Obio or of some as grounds to impeach a patent on the appli- other State, wishes to purchase a tract of land cation of a creditor.

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-1 may, in exercising ordinary diligence, shield rant, an entry, or a survey.

himself against the consequences of constructWithout intending to say that a warrant is ive notice? The purchaser goes to the office of not necessary to the validity of an entry, or the principal surveyor for the district, and by that a survey would be good without an entry, the courtesy of that officer obtains permis. I contend that a warrant is to be presumed sion to examine the records and *files of (*103 from the existence of an entry; on the princi- the office. And what does he find there? ple that as it would be a violation of duty on The warrant may be found there, or it may the part of the principal surveyor to make or not, for reasons already stated. But construct. record an entry without the authority of a ive notice, if applicable at all, must be applied warrant, and as the law will presume that the without regard to whether the warrant can, by officer has duly executed his office, it follows, any diligence, be found or not. If it is in the therefore, that an entry is proof, till the con- office, the purchaser will see from the face of trary appears, of the existence of a warrant. it that it was issued to the soldier himself, or

For the same reason a survey is presump: to heirs, or to an executor, or to a purchaser. tive evidence of the existence of an entry duly But, in either case, the law presumes it proper. made. These are official acts, performed by ly issued; and, therefore, the law will not officers appointed by public authority, and charge the purchaser with knowledge that it sworn to perform these duties. And the law was improperly issued to the warrantee. gives them credit for fidelity till the contrary Neither the entry nor the survey gives any is shown; and nothing, surely, can be more just notice by which the purchaser is put upon inand reasonable.

quiry for the rights of others; nor do they Besides, as the law does not direct the war: furnish any clue by which such rights can be rant to be recorded in the surveyor's office, and ascertained. as it is not, in practice, recorded there, it may The warrant may have been assigned before not be accessible to the purchaser; and, there or after its location; in either case, the paper fore, it would be unreasonable to charge him, containing the assignment may or may not be 102*] by implication, with a "knowledge of filed in the surveyor's office. its contents. It may have been lost or de. If the requisite information cannot be ob. stroyed after the entry was made.

tained in the State where the land lies, will the The State of Virginia, and afterwards the court say that ordinary diligence requires the Congress of the United States, early made pro- purchaser to visit the land office at Richmond, vision for these casualties, by making "a certi- | to examine for defects prior to the date of the fied duplicate of the warrant” equivalent to warrant? To do this, a citizen of Ohio must the original, for the purpose of obtaining a travel a distance, in going and returning, of patent. Ohio L. Laws, 115, 133. And for an. twelve hundred miles. The expenses of such other reason, the warrant may be beyond the a journey would exceed the value of the land, reach of the purchaser. It may, at the time, in many instances; and the effect would be to be in the hands of a deputy-surveyor, for the exclude from the privilege of purchasing these purpose of executing a survey of that part of lands, all except a few wealthy speculators who it which had not been surveyed before. Ohio might afford to incur the expense. I need make L. Laws, 122.

no remarks on the justice or wisdom of such a It is submitted, therefore, that the fact that policy. Nor will I do more than ask the court the warrant may not at all times be within to reflect on the consequences that must flow reach of the purchaser, affords a reason why he from establishing the doctrine of the court be. ought not to be affected with constructive low; consequences which, could they be limited notice of its contents.

to future transactions, would be less dis. But, again, no more than ordinary diligence astrous: but we know they must operate on and prudence are required of a purchaser, in the past, and affect titles already acquired, the cases where the doctrine of implied notice thereby producing an aggregate of injury and is admitted to be applicable. For, if a higher suffering that no sagacity can foresee degree of diligence and attention than ordinary calculate. becomes necessary, the rule itself ceases. What The case of Reeder v. Bart, 4 Ohio Rep. 446, are the facts of the case? The lands lie in the affords the first and only instance, as far as I State of Ohio, where the office of the principal know, in which the doctrine of implied notice surveyor for the district is established. The has been applied to the recitals in a patent tribunal that receives the evidence and adjudi. issued by the United States for a portion of cates the right of the original claimant to the public domain. And the decree from which bounty land, and which gives the certificate; we have appealed seems to affirm the doctrine and also the office which issues the warrant, of that case, and to apply it, for the first time, are all established in the State of Virginia, I believe, to the military titles derived (*104 distant not less than six hundred miles from from the laws of Virginia. the land. If the claim was assigned before the During the period of fifty years that these warrant issued, the evidence of the power of I titles have been the subject of litigation in

[ocr errors]
[merged small][ocr errors][merged small]

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 Whatever doubt might arise on this question
would have been asserted, if it had been sup on common law principles, there can be none
posed by the courts, or bar, that such a princi- when the peculiar system under which this
ple was applicable to a 'purchaser of these title originated is considered. In Ohio and
titles. The absence of any adjudication in Kentucky this question has been long settled
favor of the doctrine as now applied, is an judicially; and this court, following the deci.
argument of some force against it.

sions of those States, have also decided it

Bodley et al. v. Taylor, 5 Cranch, 196. Mr. Justice M'Lean delivered the opinion of In the case of Polk's Lessee v. Wendall et al. the court:

9 Cranch, 98, the court say “that every preThis is an appeal from the decree of the Cir. requisite has been performed, is an inference cuit Court of Ohio.

properly deducible, and which every man has In their bill the complainants represent that a right to draw from the existence of the they are the only heirs and legal representa grant itself. It would, therefore, be extremely tives of John Hockaday, late of the County of unreasonable to avoid a grant in any court, for New Kent, in the Commonwealth of Virginia. 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 s0 essential to the acres of land in the Virginia reservation, with validity of the contract, that the great princi. in the State of Ohio. That in 1799 Hockaday ples of justice and of law would be violated, died, leaving as his only child and heir Hannah did there not exist some tribunal to which an C. Ware, who had intermarried with Robert S. injured party might appeal, and in which the Ware, and who was the mother of a part of means by which an elder title was acquired the complainants, and the grandmother of the might be examined.” And the court, after others.

showing that a court of equity was the [*106 That Hockaday left a will in which he dis- proper tribunal to make this examination, reposed of his personal estate only, and appoint-mark, "But there are cases in which a grant ed Ware, with two other persons, his executors. is absolutely void, as where the State has no Ware proved the will, the others declining to title to the thing granted, or where the officer act; and that he wholly neglected his duties as had no authority to issue the grant. In such executor, and never settled the estate. That cases the validity of the grant is necessarily their mother died in 1805, and Robert S. Ware, examinable at law." their father, also died some years afterwards. The same case was again brought before the That in the year 1808, one Joseph Ladd, who court by a writ of error, and is reported in 5 has since deceased, being insolvent and without Wheat. 293, in which the court held that the heirs, fraudulently made a contract with the system under which land titles originated in executor for the sale of the above military | Tennessee being peculiar, constituted, with the right; and having obtained the certificate of adjudication of its courts, a rule of decision such right from the Executive Council of Vir for this court. ginia, the same was assigned to Ladd for the In the case of Miller et al. v. Kerr et al., 7 consideration of forty dollars and a pair of Wheat. 1, it was held that an equity arising boots. That on this certificate and assignment from an entry of land made on a warrant Ladd obtained four warrants of a thousand which had been issued by mistake, could not be acres each, as the assignee of Ware, the ex- sustained against a patent issued on a junior ecutor of Hockaday.

entry. The court say: “The great difficulty in One of these warrants was assigned to George this case consists in the admission of any testi 105*] Hoffman by *Ladd, and through cer- mony whatever which calls into question the tain other assignments to Brush. By a part of validity of a warrant issued by the officer to this warrant the two tracts of land in contro whom that duty is assigned by law. In examversy were entered, and for which Brush ob-ining this question, the distinction between an tained patents from the United States, dated act which is judicial and one which is merely the 23d January, 1818. And the complainants ministerial must be regarded. The register of allege that Brush was a purchaser with notice the land office is not at liberty to examine of their equity; and they pray that he may be testimony, and to exercise his own judgment decreed to convey to them the title, etc. respecting the right of an applicant for a

In his answer the defendant states that he military land warrant." was a bona fide purchaser, for a valuable con And in the case of Hoofnagle et al. v. Ander sideration, and without notice of the complain- son, 7 Wheat. 212, another question was raised ants' equity. And he insists if the court shall on an entry made by virtue of the same war. decree for the complainants, that he is entitled rant. to the part usually given to the locator, for The mistake in the warrant consisted in this: making the entry and obtaining the title for Thomas Powell, having performed military serthe land. And also that he is entitled to vices in the Virginia State line, a certificate by moneys paid for taxes, etc., on the land. the Executive Council of Virginia was obtained

This cause has been ably argued on the part by his heir, which entitled him to a certain of Brush, the appellant.

amount of land. On this certificate, the reg. The question which lies at the foundation of ister of the land office at Richmond, Virginia, this controversy, and which, in its order, issued a warrant, which, instead of reciting should be first considered, is, whether the court that the services were performed in the State

an

line, stated that they were performed in the terial. They have neither the form nor effect State line on continental establishment. This of a judicial proceeding. 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 pa ies 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 The complainants do not deny the genuine. evidence of the mistake which had been com. ness of the certificate, the assignment, or the mitted in the office; that it had been assigned warrant, but they say that the executor had no for a valuable consideration, and the purchaser right to make the assignment; and that the ishad obtained a patent for the land without suing of the warrant by the register does not actual notice of any defect in the origin of his preclude them from raising that question. title; and they held that the patent gave a Until the patents were obtained, this war. good title as against anyone whose entry was rant, though assigned and entered in part, on subsequent to its date.

the land in controversy, conveyed only A patent appropriates the land called for, equitable interest. Hoffman, to whom Ladd asand is conclusive against rights subsequently signed it, and the other assignees took it, subacquired. But where an equitable right, which ject to all equities. In their hands, unless af. originated before the date of the patent, fected by the statute of limitation or lapse of whether by the first entry or otherwise, is as- time, any equity arising from the face of the serted, it may be examined. The patent, under instrument could be asserted against them, the the Virginia land law, as modified by usage same as against Ladd. and judicial construction in Kentucky and Brush, being the last assignee, obtained the Ohio, conveys the legal title, but leaves all patents in his own name as assignee, and these equities open. Bouldin et ux. v. Massie's Heirs vested in him the legal estate. But this, on et al. 7 Wheat. 149.

the principles which have been long established, The controversy in this case does not arise in relation to these titles, does not bar a prior from adverse entries, but between claimants equity. The complainants are proved to be the under the same warrant. And it is admitted heirs of Hockaday, and a part of them were that Ware, as executor, had no power to assign minors at the commencement of this suit. All the military right, which, on the decease of of them, in age, were of tender years when the Hockaday, descended to his heirs. It is too warrant was assigned, and it appears that none clear to admit of doubt that Ladd, by circum. of them came to a knowledge of their rights, vention and fraud, obtained the assignment until a short time before the bill was filed. from the executor, which enabled him to pro. And this is an answer both to the statute of cure the warrant from the register.

limitations and the lapse *of time. The [*109 As between Ladd and the complainants, can statute of Ohio does not run against non-resi. there 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, It is insisted that the register, of necessity, whether Brush is chargeable with notice. 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 80, 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 Ladd, his heirs or assigns, signed by Ware, said to have acted judicially. But the register, executor of Hockaday, he having received, as in the language of the court, in one of the cases stated, full value for the same. above cited, acted ministerially. The court say Four military warrants, of one thousand he was not authorized to examine witnesses in acres each, were issued by the register, “the the case, but was bound to act upon the face of 9th of August, 1808, to Joseph Ladd, assignee the certificate. The parties interested were not of Robert S. Ware, executor of John Hockaday, 108*] *before him, and he had no means of deceased." ascertaining their names, giving them notice, or By virtue of one of these warrants, four taking evidence. And under such circum- hundred acres of the land in dispute were stances, would it not be a most extraordinary entered the 8th of June, 1809, in the name of rule which should give a judicial character and George Hoffman, assignee, and two hundred effect to his proceeding. He acts, and must acres in the same name, the 18th of August, necessarily act from the face of the paper, both 1810. These entries were surveyed in May, as it regards the certificate of the Executive 1810, and on the 20th of January, 1818, patents Council, and the assignment of such certificate. were issued to "Brush, assignee of John HoffHis acts, in their nature, are strictly minis. I man, who was assignee of Joseph Hoffman et

[ocr errors]

al., assignees of George Hoffman, who was as. | under the circumstances, was a bona fide purBignee of Joseph Ladd, assignee of Robert S. chaser for a valuable consideration, without Ware, executor of Hockaday,” etc.

notice. It is insisted that the general doctrine of no In his answer, he says that he never saw the tice does not apply to titles of this descrip-warrant, the *entries, nor the surveys (*111 tion. And this position is true, so far as re on which the patents were founded; and that gards the original entry. To make a valid he had no information as to the derivation of entry, some object of notoriety must be called the title, except that which the patents contain. for; and unless this object be proved to have The question is not whether the defendant in been generally known in the neighborhood of fact saw any of the muniments of title, but the land at the time of the entry, the holder of whether he was not bound to see them. It will the warrant who enters the same land, with not do for a purchaser to close his eyes to full notice of the first entry, will have the facts; facts which were open to his investigabetter title. And so, if an entry be not tion, by the exercise of that diligence which specific as to the land intended to be appro- the law imposes. Such purchasers are not propriated, or in any respect be defective, it con- tected. veys no notice to a subsequent locator, nor can It is insisted that the plats and certificates it be made good by a subsequent purchaser being assignable, the defendant might well pur. without notice. Kerr v. Watts, 6 Wheat. 560. chase them without a knowledge of the facts But, with these exceptions, the doctrine of contained on the face of the warrant. But notice has been considered applicable to these was he not bound to look to the warrant as the military titles, as in other cases. And no foundation of his title? The surveys were of reason is perceived why this rule should not no value without the warrant. No principle prevail.

better established than that a purchaser 110*) *From the nature of these titles, and must look to every part of the title which is the force of circumstances, an artificial system essential to its validity. has been created, unlike any other; and which The warrant was in the land office of the has long formed the basis of title to real principal surveyor; and although this, at the estate, in a large and fertile district of coun- ( time, was kept in Kentucky, the defendant was try. The peculiarities of this system, having bound to examine it. In this oflice his entries for half a century received judicial sanctions, were made, and to it his surveys were returned. must be preserved; but to extend them, would And from this office was the evidence transbe unwise and impolitic.

mitted on which the patents were issued. Can Brush, it is insisted, was a bor fide pur it be contended that the defendant, who purchaser for a valuable consideration, without chased an inchoate title, a mere equity, was not notice.

bound to look into the origin of that equity ? The answer under which this defense is set | As a prudent man, would he not examine up is neither in substance nor in form free j whether that which he bought was of any from objection. It does not state the amount value? The records of the land office, and the of consideration paid, the time of payment. nor papers there on file, showed the origin of the does it deny the circumstances from which no title, and the steps which had been taken to tice can be inferred. Boon v. Chiles, 10 Peters, perfect it. By the exercise of ordinary pru211, 212. But, passing over the considerations dence he would have been led to make this ex• which arise out of the answer, we will inquire amination; and, in law, he must be considered whetner the defendant is not chargeable with as having made it. notice, from the facts which appear upon the And here the question arises, whether the face of his title.

statements of the warrant, which were after. The entry on the books of the surveyor, wards copied into the patents, that the right kept at the time in the State of Kentucky, was originally belonged to Hockaday, descended to the incipient step in the acquisition of the his heirs, on his decease, and had been assigned title. This entry could only be made by proto Ladd, by his executor, were not sufficient to ducing to the surveyor, and filing in his office, put the defendant on inquiry. Now, an execthe original warrant, or a certified copy of it. utor has not, ordinarily, any power over the The survey was then made, and a plat of the real estate. His powers are derived from the land, by a deputy, who returned the same to will, and he can do no valid act beyond his au. the principal surveyor's office. This survey is thority. Where a will contains no special procalled the plat and certificate, and is assign vision on the subject, the land of the deceased able by law; but, without an entry founded descends to his * heirs, and their rights (*112 upon a warrant, it is of no validity. On the cannot be devested or impaired by the unautransmission of this survey, under the hand thorized acts of the executor. and seal of the principal surveyor, accompanied The warrant, then, showed the purchaser that by the original warrant or a copy, to the gen- this right, which pertained to the realty, and eral land office, a patent is issued to the person which, on the death of Hockaday, descended to apparently entitled to it. In issuing the patent, his heirs, had been assigned by the executor. the commissioner of the land office performs Was not this notice? Was it not a fact, esa ministerial duty. He examines no witnesses, sentially connected with the title purchased by but acts from the face of the papers, and exer- the defendant, which should have put him upon cises no judgment on the subject, except so far inquiry? If it would do this, it was notice; as regards matters of form. The patent, there for whatever shall put a prudent man on in. fore, conveys the legal title only, leaving prior quiry is sufficient. And this rule is founded equities open to investigation.

on sound reason as well as law

How can an This is the history of this title, and of every individual claim as an innocent purchaser, un. other in the same district of country. And der such a circumstance! the question arises whether the respondent, But it is argued that it would impose on the

[ocr errors]

defendant an unreasonable duty, to hold that will did not authorize the sale of the premises, he was bound not only to examine the warrant and the court held that this was notice to the in the land office in Kentucky, but to hunt up defendant. the will of Hockaday, and see what powers it So in the case of Jackson, ex dem. Livingston conferred on the executor.

v. Neely, 10 Johns. Rep. 374, it was held that The law requires reasonable diligence in a where a deed recited å letter of attorney, by purchaser to ascertain any defect of title. But virtue of which the conveyance was made, when such defect is brought to his knowledge, which was duly deposited with the clerk of no inconvenience will excuse him from the ut. Albany, accordilg to the Act of the 8th Jan. most scrutiny. He is a voluntary purchaser, uary, 1794, it was held to be sufficient notice of and having notice of a fact which casts doubt the power by means of the recital, to a subseupon the validity of his title, are the rights of quent purchaser, who was equally affected by innocent persons to be prejudiced through his it, as if the power itself had been deposited. negligence

An agent receiving notes from an executor, The will of Hockaday was proved the 11th payable to him as executor, as security for adday of July, 1799, before the County Court of vances by the principal to the executor on his New Kent, in Virginia, and recorded in the private account, and not as executor, (*114 proper records of that county, When the de: affects his principal with notice that it is a fendant purchased the title, he knew that it dealing with an executor with the assets for a originated in Virginia, had been sanctioned by purpose foreign to the trusts he was to disthe Executive Council of that State, and that charge. (2 Ball & Beat. 491.) the warrant had been issued by the register at When a purchaser cannot make out his title Richmond. These are matters of public law, but through a deed which leads to a fact, he and are consequently known to all. But, in will be affected with notice of that fact. Merdependently of this, every purchaser of a mili. ting v. Jolliffe, Amb. 311. tary title cannot but have a general knowl. A made a conveyance to B, with a power edge of its history.

of revocation by will, and limited other uses. Why was not the defendant bound to search If A dispose to a purchaser by will, a subse. for the will? The answer given is, the distance quent purchaser is intended to have notice of was too great, and the place where the will the will as well as of the power to revoke; and could be found was not stated on the warrant, this is a notice in law. And so in all cases or on any of the other papers. That mere dis where a purchaser cannot make out a title, but tance shall excuse inquiry in such a case, would by deed which leads to another fact, notice of be a new principle in the law of notice.

which a purchaser shall be presumed cognizant; The certificate of the original right, and the for it is crassa negligentia that he sought not 113*] warrant, were obtained in Richmond, after it. Moore v. Bennet, 2 Ch. Cas. 276. Virginia. And in the office records and papers Notice of letters patent, in which there was of the Executive Council, or in those of the a trust for creditors, is sufficient notice of the register in Richmond, a copy of the will, prob. trust. Dunch v. Kent, i Vern. 319. ably, could have been found. And if such a That which shall be sufficient to put the par. search had been fruitless, it is certain that it ty upon inquiry, is notice. 13 Ves. 120. could have been found on the public records of On a full consideration of this part of the wills of New Kent County. A search short of case, we think that the defendant must be held this would not lay the foundation for parol evi- to be a purchaser with notice. dence of the contents of a written instrument.

The Circuit Court considered the defendant And shall a purchaser make a bad title good by as vested with a right to such part of the land neglecting or refusing to use the same amount as is usually given to a locator, and directed of vigilance ?

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 inter: assignee 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. 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 Com

Error, mon Pleas, to sell or convey an interest in land; nor has an executor in Virginia any pow. PETER LENOX'S EXECUTORS, Defendante er over the realty, unless it be given to him in

in Error. the will. In this case, therefore, the purchaser

Pleading-evidence-set-off. was as much bound to look into the will for the

On a demurrer being Aled, the rule is that the authority of the executor, as the Ohio pur- party who has committed the irst fault shall have chaser was bound to look into the proceedings judgment against him.

Where a declaration is on a bond given to proseof the court for the authority of the adminis- cute with effect a writ of replevin, and breach as trator.

signed 18, “that the suit was not prosecuted with The case of The Lessee of Willis v. Bucher, 2 effect," It is sufficient,

A certiorari has been issued by the Supreme Binn. 455, is also in point. The defendant de Court of the Circuit Court, on an allegation of rived his title from William Willis, to whom a diminution, and the judgment in the replevin sult patent had issued, reciting that the title was

certified to the Supreme Court under the certiorari

substantially differed from the judgment described derived under the will of Henry Willis. This l in the declaration on the replevin bond, in a suit il

V.

« ПретходнаНастави »