Majority — Catron J.
p. 264James Galloway, Junior, appellant v. Henry R. Finley and David Barr, appellees.
Syllabus
C. B., a man resident in Ohio, as an officer in the Virginia line,- during the revolutionary war, was entitled to a.quantity of military land in the -state of Ohio. ■ Warrants for the land Were issued to him, and.were surveyed, located, and- patented. In 1835, the heirs of O. B. sold part of these lands to G-., who went into possession of them. .He soon afterwards discovered that the-patent for these, lands issued after the decease of C. B., and was consequently void, 'i'he land had been récog;hised for forty years, asfthe property of C. B. and his heirs, and the title in them deemed valid. ,G%, on-making's discovery of the. defects in the patent, entered and located the land for himself. Held, that Cf. could not be permitted to avail himself of this defect in th'e title, while standing in the relation of a purchaser,' to defeat the agreement-to purchase - made with the heirs of C. B. Under the most favourable circumstances, he could only have it reformed; and the amount advanced to perfect the title, deducted'from the unpaid purchase money. Where the purchaser, instead, of claiming from his vendors the cost of entering and surveying the lands, the defect in the'title to which, had become known to -him through h?s purchase, claims to hold the land as his own, under the title acquired by his entry and survey; and. asks a court of equity to rescind the contract of purchase;' a court of equity will decline- giving him its aid to obtain the expenses of the warrants and surveys taken out by him for the land, and set -up against the right's of his vendors.It is kn established rule in equity, that when the vendor of land'has not the power . to,make a'title, the vendee may, before the time of performance, enjoin the pay-ment of the purchase money, until'the ability to comply with the agreement is shown; but then the court will give a reasonable time to procure the title, if-it appears probable that it may be prdfcured.
In reforming a contract for the sale of lands, equity treats the purchaser as a trustee ior the vendor, because he holds under the vendor; and acts done to benefit the title by-the Vendor,"when in possession of the lands, enure to the benefit of him -under whom the possession was obtained, and through whom the knowledge that a defect in the title existed.was derived. The vendor and vendee shared in the relation of landlord and tenant; the vendee cannot disavow the vendor’s title.
A patent for "lands issued after the decease of the patentee, passes no title to the lands;’ there must be a grantee before the grant can take effect.
The acts of congress of 1807, and the subsequent acts relative to the titles to military lands, were intended to remedy, any defects in the patenting the lands in the-name of the warrantee, who might have been deceased at the .timq of the emanation of the patent; and to secure the title to the lands to the heirs of the patentee. The statute is general, including by name kli grants, not distinguishing between void and valid; and the plainest rules of propriety and justice, require, that the courts should not introduce an exception, the legislature having made none.
APPEAL from the circuit court of the United States, for the western district of Pennsylvania, in the third .circuit:
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The appellant filed his bill on the 19th of October, 1835, stating, that on the- 11th of March, 1835, he entered into-an article of agree* ment with David Barr, acting as attorney for his wife, Elizabeth Julia . Ann-,-who thereby became a party to the same. The agree*, ment stated that Charles Bradford, late of Pennsylvania, obtained for his services as an officer in the Virginia continental line, a land warrant, No! 4467, for 2666 acres of land, which was entered, surveyed, and patented in three surveys in the Virginia military district, in Green and Brown counties, in the state of Ohio. . That Charles Bradford died intestate, leaving four children,Jwo of whom died without issue, and intestate, ■ leaving Henry R. Finley, . and Elizabeth Julia Ann', his only surviving heirs. 'Elizabeth Julia Ann married John Finley, and died, leaving two children, Henry, and Elizabeth Julia Ann, who are the only hejra of their. mother,-and are entitled to one undivided half of the' said military land. ' That Henry R. Finley, and Elizabeth -Julia Ann,-the wife of David Barr, sold to the complainant an. undivided moiety of the two sur-, veys in Green county, in consideration of an agreement to pay eight thousand dollars; of Which one thousand dollars was paid, and notes given to Henry R. Finley, and to the wife of David Barr, for the. residue due,.payable in equal-instalments, in one, two, and-three years; viz., on the first of January,.1837,1838,1839.- The defendants,' and the wife of Barr,-covenanted that they were the persons they represented themselves tó be, and, that they were seised and- possessed of a good legal title to the. lands they sold to the complainant; and bound themselves, their heirs,, &'c., to make him, his heirs, &c., á good, title in fee simple, as soon as he should pay the purchase money. That defendants'asserted they had .in possession the evidences of the title of defendant,-Finley, and the wife of Barr, to the land;- and that a -letter of attorney had been executed and acknowledged by Barr’s wife to himself, authorizing him to sell and. convey her title in the land;, that they had then just discovered that they had not brought these papers with them, and to induce appellant to close the contract, ..promised to send him the papers as. soon as they should return home: confiding in the existence of the papers,"and the promise to forward them to him, he concluded the agreement. The complainant says he paid, down -the .one -thousand dollars, and one hundred and four dollars; the latter credited on the last note. That since the date of the contract, Barr’s wife has died intestate, and without issue, being a minor at her death. That defendants have not pro
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duced their title papers, nor letter of attorney. That defendants cannot perform their contract, nor make a good title to the land, because Charles Bradford died in Í789; and the lands were entered in his name, on the 19th of April, 1793; and the tract of one thousand acres was surveyed .the 14th of February, 1794: and the survey of the tract of twelve hundred acres, wa3 made the 24th of March; 1794: the entries and surveys being made about four years after his death.
The complainant, averring his readiness to pérform, prays that the article of agreement may be deemed annulled and cancelled; that the money be refunded; with interest, and the notes enjoined, and the collection restrained; and for general relief.
• The defendants, Finley and Barr, on the 19th of January, 183$, answered jointly, admitting the contract as stated in the bill, and that H. R. Finley, and Elizabeth Julia Ann Barr, wife of-Bávid Barr, were the'chrldren, and sole heirs of Elizabeth Julia Ann Finley, daughter of Charles Bradford, and entitled, as such, to a moiety of the lands in.question; and that they told the appellant they had, m Pennsylvania, evidence that defendant, Finley,, and the wife’'-of defendant, Barr, were the heirs of Elizabeth Julia Ann Finley; all which they assert to be true, and can prove. The defendants denythat they represented they bad in possession any title papers, op any evidence except that which would proye the heirship of defendants, Finley, and the wife of Barr. On the contrary, they told the ‘complainant they had no title papers, and that they had only recently been in-, formed .of the existence' of the land; and that the defendant, Finley, and the wife of Barr, had any title thereto. The complainant told defendants he had long known that the heirs of Elizabeth Julia Ann Finley were entitled to one undivided half of said lands; that he had a record.of their names; had made inquiries for them: that, he had beeri anxious to buy the interest of defendant, Einley, in the lands; as he, the complainant, had sold the said, lands, and bound himself to give good titles, and he feared some other person would purchase the interest of the defendant, Finley, and his sister, and giye him trouble.. The complainant stated at the time, that he knew all about the title; and that if defendant, Finley, and his sister, Elizabeth Julia Ann, Barr, were the children of Mrs. Finley, he was satisfied as to their right to the lands. Defendants admit that they agreed to forward to appellant evidence that defendant, Finley, and his.sister, were children of Mrs. Finley, and meant to do so; but the death of
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Mrs. Barr, caused it to be negleeted. The defendant, Finley, denies representing to appellant that Mrs- Barr had executed a letter of attorney to her husband, and that defendants had' only-then discovered that it Had been left behind: he admits that he- might have tojd appellant that Mrs. Barr was willing that her husband should sell her' interest. The defendant,.Barr, admits he represented that his wife, was willing he should sell her interest; and that a letter of attorney had been prepared to that effect, and left behind; but he denies recollection of saying it had been executed, and acknowledged, and that he supposed he had the same with him, and had then only discovered He had. left it behind. He admits he promised to forward the power, ..but the death of his. wife prevented this being done.
The defendants, deny intention or attempt to induce appellant to enter into contract, and pay his money thereon, by fraudulent representations. They admit the payment of. one thousand dollars, and one hundred and four dollars, as stated'in the bill;, and that Mrs.' Bárr died a minor, without issue and intestate;, but aver that her death did not affect their right to coruply. with;the contract, as the interest of Mrs. Barr vested at her death in defendant, Finley; who has been, and is willing to fulfil it. They deny all fraud and combination, and aver and will prove, that they made the contract in. perfect good •faith, believing that defendant, Finley, and Mrs. Barr had a legal right to a moiety of the land: the knowledge of their right chiefly came from appellant. But they deny that at the time of making the contract, they had any knowledge of the date of the entry or survey, .or of the date of C. Bradford’s death: they allege, the, first intimation they had that the land was entered and surveyed after his death, was derived from the bill. They admit, from information, &c. since the bill was filed, that they believe the said lands were entered and surveyed at the times mentioned in the bill, and since the death of Bradford; who died-about the time mentioned ih the bill. The defendant, Finley, avers, that as soon as he was apprized of the facts mentioned in the bill, as to the date of entry and survey, he 'made inquiries as to the facts, and being satisfied that they were true as alleged in the bill, he proceeded without delay to the surveyor’s office in Chillicothe, to get information to take-steps to procure an entry of said lands, that he might fulfil said contract; which he is ready and- anxious to comply with. But he was surprised when he ascertained that the appellant, a few days before, on the 26th September, 1835, fraudulently, and as defendant alleges, for the purpose of putting it out of
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the power, of defendants to comply with their contract, and tp de-. fraud the defendant, Finley, out of his lands, had entered the same lands under surveys No. 2277-and No. 2278, mentioned in the agreement; as certified copies of the entries made by appellant, and made, part of the answer, will prove.
The defendants aver, that the complainant, having made these entries to further his designs, immediately filed this bill without intimating objections to their title; although defendant, Finley, had met .and conversed with him at Pittsburgh, after the entries were made, and before the bill was filed. The defendants allege, and will prove that the lands-were duly entered, surveyedjánd patented'in the name of Charles Bradford, by virtue of which the defendant, Finley, and his said "sister, at the date of contract were, as the heirs of Mrs; Finley, deceased, daughter of Charles Bradford, deceased, entitled equitably and justly to the undivided half of said lands, and had good right to sell and convey. By the death of Mrs. Barr, a minor, without i.ssué, her-right vested in ■ the defendant, Fi.nley, as sole surviving heir of Mrs. Finley; and being so entitled, he avers his power, readiness, and willingness to make a perfect title to -the appellant for-an undivided moiety of. the lands, on the fulfilment of the contract by him. The 'defendants aver that any title which the appellant may have acquired by his entry .of September 26th, 1835, shall.be taken"to enure to the benefit of them, for whom he holds the'lands in trust for fulfilment of the agreement; and they .pray that the bill may be dismissed, &c.
In February 13th, 1837jthe appellant filed his amended bill, stating that besides the money he had paid defendants on account of the contract, he released to them hiá interest .to . an undivided half of survey No. 4456 for 466# acres, for the consideration of i ve hundred dollars. That when , he made the contract with the defendants, he beReved that they had a perfect title to the lands they sold him ;■ was ignorant that the entries, &e. had been made in the name of a man not in being; and that it was. not for a considerable time afterwards he came to a knowledge that the land was vacant, and that the defendants had no power tp make him a title, and that the lands were subject to entry*By a holder of a Virginia military warrant. He had previously purchased an undivi. ed -half of the same lands, and paid ¿large consideration. Deeming it right to protect his interest in-premises, on the 26th September, 1835, he caused entries No. 13,696 for.Í2Q8 acres, and No. 13.,697 for 1000 acres, to be ma e; and on the' same day caused survey^ to be. triade and returned, which were
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■recorded 28th September, 1835. He refers to attested copies tiled with the answer.' The appellant charges the fact, that the lands being . wholly vacant and unappropriated, he has invested himself with the best-title to the same.
He prays that the defendants may answer, and also as in his origi-' ,nal' bill: .or if it Shall' be found that defendants, or either of them, had a good title to the land, and still have a right to the same, and have authority'to make a valid conveyance, then the appellant is ready, .and tenders the full .and- perfect completion of the contract on his part. And he prays for general relief.
A separate answer .was made to the amended bill by David Barr; and fifed February 25th, 1837.
He admits the deed of release of the appellarit’s, interest in survey No. 4456, and that the consideration named-in the deed was five hundred dollars; but denies that that sum was the trufe consideration, averring that one hundred and four dollars and thirteen cénts, credit-Ned on one of the notes as mentioned in the original bill, Was the true consideration. The defendant avers, that at the time of making the contract, both defendants denied' Galloway’s claim to this survey, and-set up the entire right to the same to be in Finley and his sister, then living; arid that it was not considered nor formed any part of the contract; but after the contract was executed, Galloway urged a'claim, at least for the taxes he had paid on the survey. This defendant agreed, in consideration of the release, to refund the taxes paid by ere.diting the amount on the note. The sum of five hundred dollars was inserted at the instance of Galloway, tó induce his wife,, as he said, to sign’the deed. The defendant, Finley, had nothing to do with' this transaction. As to appellant’s belief that Finley and his sister had a good title, the defendant says’ that the complainant represented to them-that he knew all about their title. The defendant supposes that' the appellant became acquainted with the facts that the entries and ■ surveys had been made in the-name of a dead man, after the1 date of the will of Bradford had" been communicated to him. He cannot admit that the appellant has hy the entries, &c. in his own name,-invested himself with the best and only title to the lands. The defendant d, nies that the-lands were vacant and unappropriated, at the time appfellant entered them;, but they had before been appropriated under warrants of Bradford, under whose- entry, &c. Finley and his sister had acquired a good title, and had good right to sell and convey the same. He prays that the bill may be dismissed.
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The cause was tried on the 26th of May, 1837; and the court decreed that the bill of the complainant should be dismissed!
The complainant prosecuted an appeal to this Court.
The case was' submitted to the Court on printed arguments, by Mr. Corwin and Mr. Mason for the appellánt; and by Mr! Fetter-man for the defendants.
For the appellant the following points were made:
1. Galloway was not obliged by any principle of law or equity, to put the defendants in a situation to comply with their contract. Therefore he was not bound to assist them in procuring a title where none existed before.
2. Nor could mere silence and non-interference be imputed to him as a delinquency, for which his rights under the contract might be injuriously affected.
3. But Galloway did interfere. For when he discovered that the defendants had no title whatever to' the land they had sold him, and that it was vacant, and might be appropriated, at any'moment, by the first warrant holder who should come to the knowledge of that fact; he entered it in his own name.
4. Was this act on the part of Galloway an interference inconsistent with any duty imposed on him by the relation of vendor and purchaser then existing between himself and defendants? Was it a breach of good faith towards them, that ought, on admitted principles, to deprive-him of the aid of a court of equity?
5. It appears from the pleadings, that Galloway had purchased, prior to the date of his contract with the defendants, an undivided moiety of the land in controversy, which he had afterwards sold and bound himself to convey by a good title; that he was urgent in his solicitations to purchase the interest of the defendants, from an apprehension as he said of having trouble, should they sell to any other person. Hence, it is maintained, that complainant had, as he asserts in his amended bill, a “right to protect'his own interest in the premises,” by making the entries he did the 26th of September, 1835.
6. Galloway had no authority to re-locate the warrant of Bradford, either in hil own name, or in that of the heirs of Bradford.
But if he had such authority he' was not bound to exercise it, and could not have done so without first returning to the general land
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office the patent for cancellation; and then of inpurring the risk of acquiring a doubtful title.
7. He could-' not have delayed to make the entries at the time he did, without the hazard of losing the whole land; which he had already twice purchased.
8. It was cértainly lawful for Galloway to secure, in the mode he has attempted to do, the undivided-half- of these lands which he had long before purchased and conveyed away. To accomplish this object he was compelled to enter the whole, inasmuch as he could not-enter an undivided part of the land,
9. Ought the acts of Galloway, in appropriating thése tracts of land to himself, to enure to the benefit of the defendants? The parties were not tenants in common; because the entire interest, if any thing, was vested in Galloway. But neither party had any interest legal or equitable; and there can -be no tenancy in common of a mere. nonentity.
10. Unless Galloway was somehow disabled from doing what was lawful for all the world- besides, he has undoubtedly acquired an equitable title to at least one undivided half of the lands. And as to the other moiety, he has an equity that ought to be protected; as the defendants, having no title themselvfes, can lose nothing by the acts of Galloway, Unless it 'should be a chance Or mere possibility.
11. In determining upon questions of title, mere possibilities are not regarded; the court must govern itself by moral certainty. When a considerable or rational doubt exists^ notwithstanding the better opinion, in the judgment of the court is that a good title can be made; a court of equity will not compel a purchaser to take the title. 2 Hoven.,on Frauds, 24, 25, and cases there cited.
Í2. Where' the vendor has in reality no interest in the subject of the sale though he believed he had, the contract will be set aside.' 2 Hoven. on Frauds, 13.
13. A decree may be obtained oy a vendee to have a purchase contract delivered up, on the ground of the defective title of the vendor. 2 Hoven. on Frauds, 24.
14. It is very properly admitted in the argument on the other side, as the law undoubtedly is, that entries made in the name of dead men, are null and void. But it is insisted, at the same time, that such entries are protected by the proviso to the act of the 2d of March, 1807, as against all entries made subsequent to the passage
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of that act The contrary can. be maintained' both by reason and authority.
Mr. Corwin and Mr. .Mason for the appellant.
The complainant has sought the aid of the Court in this case, da rescind a. contract for the sale of real estate. The facts necessary to be considered are few, and in general admitted by the pléadings o'f the parties. The complainant alleges that he pui chased of defendants the undivided moiety of 2200 acres of land lying in the Virginia military reservation, in Ohio; for .which he was to pay .about eight thousand dollars, in payments, the last of .which would become due in’1839,. That die-paid one thousand dollars'at the'time of completing the. purchase, on the 11th of March, 1835. That he also- advanced at that time; the further sum of one hundred and four dollars, to enable the defendants to pay taxes due from them on other lands in Ohio. These facts are admitted by the answers of the defendants.
It is alleged by complainant, and admitted in the answers, and by. the printed argument of defendants’ counsel, that' complainant' had, previously td;the date of his contract with defendants/ purchased of one Finley Bradford, a co-heir .with the defendants, the other moiety of the same land now in controversy. It is alleged by complainant-' anid not denied by the defendants, that a controlling motive for entering into.the contract of purchase with the defendants, arose out of the fact of his having sold parts of the land purchased -of Finley Bradford, and bound himself to make titles under such sales to the purchasers. The complainant insists that at the time he purchased (March, 1835,) neither defendants of whom he purchased the last, nor Finley Bradford, their co-heir, of whom he purchased the first half of the 2200 acres of land, had any title thereto either in law or equity. That-the land has been since appropriated by a valid entry and survey made in September, 1835, in another and better right; and thus he fairly comes before the court to ask a decree for the rescission of the contract; on the ground of a failure, or total want of consideration moving from the defendants to him.
Upon this state of facts, two general propositions are to be established:
1. That defendants had no title either in law.or equity to. the land sold by them to the complainant.,
. 2. That the land had been fairly appropriated by another, under
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valid entry and surveys,- so' that defendants never can make a title for' it.
The facts necessary to be known,, in order' to -test the validity of the'title under which the defendants-claim, are all undisputed in the, pleadings. The history of titles, in what is properly called the Virginia military district in the state tif. Ohio, is too well understood by the-Court to justify its recital here. " The territory, between the Little Miami' and Scioto rivers, .in Ohio, was set. apart by the state of Virginia, to satisfy military bounties-granted by her for services rendered in the -revolutionary war. By .the terms of cession of the territory north-west of the river Ohio, when. the .warrants for- these bo unties should be satisfied, the remainder of the territory, (if any,-) between'the two rivers just mentioned, belonged to.the United States; and became á part of the national Sómáin.' Charles Bradford, under whom defendants claim, it is admitted on all hands, held a warrant which authorized him to appropriate two thousand twd hundred acres of land, in this territory. And the question arises, whether any land whatever has been appropriated by virtue of this warrant.-
It is admitted that Charles Bradford, the owner of this warrant, diéd'in Washington1 county, in the state of Pennsylvania, in the year 1789. The entries of’the land, by virtue ofthe warrant in-question, -were made in the, name of Charles Bradford, in 1793, and the surveys were executed in his name in 1794. It is also admitted, that a patent has issued in his name; but when, is not shown by’the record. Thus-it is shown', that the entries.-vvere made and the-surveys executed four years after-the death of the proprietor of ¿he warrant, and in his name. Did thesé proceedings attach to tne specific property now in controversy, any right in favour of defendants, which is valid either in law or equity? We do not feel ourselves at liberty to consider the proposition thus ,stated, as one open for discussion before' this Court. It is only necessary to say' here, that we consider it in all respects, as perfectly'identical with the principle fully discussed and settled by this Court, in the'ease of Galt and others v. Galloway, 4 Peters, 332;-, and MfDonald v. Smalley and others, 6 Peters, 26,1.
It-will be borne in mind by the Court, that although the property in question is situated within the limits and territorial jurisdiction of Ohio, and would, therefore, be subject, in the hands of individuals, to the legislation of that state, in all things affecting its transfer by deed or devise; yet asía part of the public domain, the mode of acquiring right to it, and separating it from the mass of public lands, is to be
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prescribed by the laws of Virginia; and such regulations as the United States’ government háve, from time to time, since the cession of Virginia, thought proper to make concerning it
If, however, the Court should suppose'that the question of law Under consideration, could in any degree be affected by the “lex loci rei sitae,” it will be found, that the highest judicial tribunal of Ohio has< settled this question, in exact conformity to the law as laid down by this Court. In the case of Wallace’s Lessee v. Saunders, 7 Ohio R. 179, the court, without a dissenting opinion from either of .its four judges, declare, that an entry' of Virginia military lands in Ohio, made in the name of an individual, not living at the time, is-not-merely defective, but that it is, as this Court have said, a mere nullity; that it leaves the land open to be taken up by any one holding a warraht, as though.no attempt at appropriation had ever been made.
It is proper here'to consider whether Bradford’s entry, being void,as has been shown, is made valid by the act of "congress, of the 2d of March, 1807, which has been continued'in force, by various reenactments,' up to the, 31st of March, 1832:- which' last is still in force.
. The proviso in all these acts, which is supposed by defendants’ counsel to protect the entry of Bradford, under'which they-claim, is in these words: “Provided that no locations-as aforesaid^ within the abovementioned tracts, shall, after the passage of this act, be made on tracts of land for which patents have been previously issued, or which had been previously surveyed; and every patent which may, nevertheless, be-obtained for land located contrary to the provisions of this section, shall be considered as mull and void.” See 7th vol. U. S. Laws, 516; U. S. Laws, 8th vo'l. 531.
It is conceded by the defendants’ counsel, that the proviso in question was intended to protect from interference “defective entries and patents;” and that this has been the uniform construction placed upon.it by the courts of the country. We agree with this exposition of the law, and admit that if the entry and survey of Bradford were merely defective and not yoid, .that they are protected by thé act of congress, and the subsequent entry of Galloway is void. ■ -The case of Doddridge v. Thompson, 9 Wheat. 481 , is an authority to show that the-act in cjuestion was passed, as the' Court there say, “to cure defects” in titles already.acquired.
This Court has determined, that the proviso in the act of 1807 does not protect a survey against locations, where the entry on which
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such survey was made had been withdrawn. Taylor’s Lessee v. Myers, 7 Wheat. 23 . In the case of Lindsey v. Miller, 6 Peters, 666, the Court declare that void entries and void surveys are not protected by the proviso in question. In commenting on the case of Jackson v. Clark and others, reported in 1st Peters, 628, the Court say, that they “gave effict to the act of congress in that case,” because the survey was not void, but merely defective.. 6 Peters, 677.
If éntries and surveys made in the name of dead men are void-are mere nullities, and leave the land upon which they are made open to subsequent location, as this. Court has decided, in the case cited from 4 Peters, 332, and 6 Peters, 26l; and as has been also decided in Ohio Rep. 7th vol. page 173, then it follows, that the act of congress relied upon by defendants, cannot protect the land in question, from the entry of Galloway made in September, 1835. We refer the Court here to the case in Ohio Rep. 7th vol. page 173, as an express authority upon this very point. The effect of the proviso, in the act of 1807, upon an entry in the name of one not in life at the time, is there considered, discussed and decided by the court. We consider that as settling-thé law of this case, so far as the proposition now under discussion affects it.
.Having arrived, we hope satisfactorily, at the conclusion that Bradford’s entry, being originally a nullity, left the land in question a part of the Virginia reservation, open to any holder of a warrant to locate;. we come to consider whether it has been appropriated byanother, in such manner as to withdraw it forever from the power of the' defendants.
The entries and' surveys of Galloway are set forth in the record, and admitted to be made on proper wafmnts, and by competent authority. Thus far it seems quite impossible to resist the conclusion, that the land in question was vacant land, up to September, 1835;, and if Galloway’s entry is good for the purpose of appropriation at all, it remains to inquire'whetKer such entry shall enure to his own, or another’s, benefit.
It is insisted by defendants’ counsel, that the relation of vendor and vendee, which subsisted between complainant and defendants, created a trust which obliged Galloway, as trustee for defendants, to Aise the original warrant of defendants’ ancestor, which by his death descended to his heirs, for the purpose of appropriating the two surveys in question. It will be admitted, we are sure, that on this branch of the ca$e, it is incumbent on the defendants to show:
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1st. That,the contract between them'and complainant, by necessary-implication, devolved this duty on. the latter.-
2d. That in September,. 1835, when it was-discovered by both parties that the land in question was vacant;' it Was clearly in the power of Galloway to make at that time a Valid legal entry,by virtue of the original warrant of Charles Bradford,, deceased. .
.If either of these positions are. doubtful, or clearly ascertained against the defendants, then the Court are left no alternative but to give full effect to Gallo way V entry made-in September, 1835-, for his benefit. ...
Ón the first proposition, it becomes necessary to. inquire, to -what extent the vendee of real estate may be' said to stand in the relation .of trustee to his vendor.,, The rule we conceive to be laid down very accurately.in >Sugden’s Vendors, page 162. It is there stated, that- “ equity considers the vendor-as a trustee for the purchaser of the estate- sold, and the' purchaser as a trustee of the- purchase money for the vendor.” - The same principle'is. in substance-determined in Greer v. Smith, T Atkyns, 572, and in PollMexen v. Moore, 3d Atkyns, 272. Thus it appears, that the mutual trusts -imposed on vendor -and vendee-of real estate by courts'óf equity, are nothing more than the duty,of performing, in good^faijfch, the stipulations of their agreement..- The vendor is charged.with the duty of-conveying, as he has agreed to do, the estate; and the vendee is, in equity, held bound to pay the purchase money, áé he has agreed to do. Hence it follows, that complainant-was not bou.nd by any principle of equity to, put the-defendants in a situation to comply with their contract; he was noi surely bound to assist them with- money or services, to enable them to make a title to the land they had sold; he was not-bound to- inform them that the land was vacant, because the entry on their warrant, made in-the -name of; arid after the death of Charles Bradford, was void. It cannot be pretended, that silence or inaction on his part, Would deprivé him of the aid of this Court, on the pretence that because he had -said, or-done nothing, he had therefore acted in bad faith towards the defendants. On the contrary, the law is, -that the vendors (the defendants in this case) were bound to the complainant; for the knowledge .in themselves, of alb these things. They expressly covenant “ that they are seised and possessed of a good and sufficient title to the premises hereby stated to be sold by them to the said James Galloway, jr.”
■They took upon themselves to know] that they had- the title arid
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right'to the thing sold, and in addition to the legal obligation to that effect, they give an express covenant to the complainant on that subject. That the law’obliged them to know their right, or forfeit their contract, we refer the Court tó the ease of Allen v. Hammond, 11 Peters, 63; and Hitchcock v. Giddings; Daniel’s Exchequer Rep. 1, there referred to, and. approved bv this Court. In the case just cited, on page 72,- Mr. Justice M'Lean, in delivering the opinion of the-Court, says: • “ The-law on this subject is clearly, stated in the case of Hitchcock v.'Giddings; Daniel’s Rep. -i; where it is said, .‘that-a vendor is bound to knów, that he. actually has that.which he-profess.es to sell, and even -though-the subject - matter of the contract be known 'to both parties to be liable .to a'contingency which may destroy it immediately, yet, if the contingency has already háppened, the. contract-is void.’ ” The same principle is. in substance to be found in '2 Hovenden on 'Frauds, 13..
Let us apply the principle oí the cases just referred'to', to the present, The defendants were bound to know that they had .“ a good legaktitle” to the land sold'; they covenanted with complainant in March, 1835, to that effect, and-in those w'ords: they received from-the complainant one thousand one hundred -and -four dollars on this,contract. Seven months after this, (in September, 1835,) the complainant-learns, that defendants had no title whatever-to the land thus sold, and the defendants admit that they ’had none at that time: was not this.contract void in law,-and would it not have been so adjudged had the-case been then presented ? If so', bad not Galloway á right to treat it as the- law treats it, as void, and act accordingly. In the' .case of Allen-v. Hammond, the Court say: “if. the subject matter of the contract be known to both parties as liable to'a contingency which may destroy it immediately yet if the contingency has already-happened, the contract is void:” Here'the fact, perhaps unknown to both parties, that is, the death of Charles Bradford before the entry, was what destroyed the right to the land sold; it' had happened, and therefore the contract was void the moment it was executed.
Galloway being thus, in September, 1835, divested in law of all obligation to defendants under, this contract) and the land in question being vacant, he has in good faith made it his own by entering it on his own warrant; or, in other words, he has purcbased.it of the owner, and the only owner, with his own funds. He has left the warrant in the hands of Bradford’s heirs just where he found it, unsatisfied, and unlocated. He has by his entry deprived them of nothing which
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they had before his entry. Their warant is as good in the law, and worth as much, now as it ever was ! It will buy two thousand two hundred ácres of land any where in the Virginia reservation. If that territory is exhausted, the faith of a sovereigr state is pledged to make good the deficiency; and if that duty, as some' say, be transferred to the United States, no one can doubt the ability or the disposition on their'part to give full indemnity in money or lands to all bona, ■fidé holdérs of such warrants. Let uS suppose, that .instead of military land the defendants had sold to complainant congress-land, say section No. 10, in a given township, and range. ' Suppose the complainant possessed, no matter how, of eight hundred dollars in cash, belonging to defendants. The complainant, looking after his title to the 10th section, finds that it has never, been entered or bought by any one, in any way, but is open to entry at one dollar and twenty-five cents per acre. Would any court imagine that it: then became the duty of the complainant to take the money of the defendant in his hands, and buy of the government the 10th section in defendant’s name; or could it be conceived within his province as vendee of a tract of land* at' any time, to seize the money or property of the vendor, to make good' the title which he had contracted- for. Such is the case, as contended for by the defendants here. The defendants, indeed, knew that such a -warrant, as would - appropriate the land-in question, was said to exist; but the Court will bear in mind, that neither the.warrant nor the patent, if in existence, were then, or are now, either'in the hands of complainant, or any one for his use. And this brings us to consider, secondly.; whether it is shown by defeiidant.s, that Galloway in September, 1835, had it in his power to locate the original warrant-of Bradford on the identical land in questnn at that, time, so as to make it certain that by such act he would be able ' to obtain a legal title without litigation to the land in question.
In the first.place', the Court will remember that the warrant was not in.our possession; that we had bought and paid-for one undivided half of the 2200 acres of Fielding Bradford, who seems to have had just claim as heir, to one-half of the warrant.- In the second place, a' patent had issued for the identical land in controversy, which seems-.not to be-in the possession'of either party. We mairitain, that an assignment-of the warrant, by the heirs of Bradford, was indispensable to enable , us to enter it in'complainant’s name. Butfif it be said that our contract for the land supposed to be entered by it is equivalent in'law to an assignment,-to this we answer, that such entry-
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Would not be good against one holding the warrant with an assignment, without notice of our purchase. Such án assignment may have been made by Fielding Bradford, or by defendants, at any time since 1789; for from that day.to this the warrant has been capable of such transfer, never having been lawfully located, at least so far as we are informed, by the'facts in this cause. Surely, then, the Court will not say that complainant was bound, for' the benefit of defendants, to run this hazard; and thus, in the évent of his failure to make the warrant a good foundation for his entry, lose the whole land which he had fairly bought, leaving himself to be charged with that very “ mala Jides,” towards those who -had bought, of him under his purchase from Fielding Bradford, to whom it is.admitted.he had bound himself to make gbod legal titles. Nor could the defendant' enter “an undivided, moiety” of the 2200 acres: he must, in'order to make .the contract of defendants good), have entered the whole; and hence it became necessary to have command of the whole warrant. Defendants only claim one-half; and what disposition ■ may have been mad.e by the other heir of Bradford of his portion, is not shown to the Court, nor is .it presumed to-be known by complainant. It is unknown to the Court, and so far as we know, to the parties, whether Fielding Bradford is living or dead. His half of the.warrant, if he is dead, descended t'o his heirs at law! Who are they?. Where are they? Are they minors or adults? All these questions at once arise when Galloway is asked, in September, 1835, to use this warrant for the purpose of obtaining a clear legal title to this land. If any doubt, existed as to his right so to do, or as to the probability of such act being good, to hold the land and obtain a patent without litigation, then it is clear, the Court will not hold that he was bound to incur such risk.' Having bought one undivided' half of the 2200 acres, and sold, (as he avers, and as is admitted,) on th.e faith of that purchase; every obligation of good faith and correct morals, impelled him to-make sure that which was necessary to enable him to comply with his own engagements.
But a patent, had issued for- the land. We insist that no entry could be valid by virtue of the warrant, the use of which.caused that patent to issue, till 'the patent itself wgs produced and cancelled. We refer the Court to the usage of the genera} land office,- as laid down in the letter from the Solicitor of that bureau, which we have appended to our argument, showing the difficulties which would have attended an attempt at re-location of the warrant belonging to
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Bradford’s heirs, by, Galloway.' If the title was in doubt which was-thus.to be derived, then the Court will nof say that'he was under obligation to naalce . any effort td secure the land'through that channel. . See 2d Ho'venden on Frauds, 24-5, and cases there cited.'
It becomes a question of primary importance, under this state of things, whether Galloway wTas bound (after the discovery that defendants had no titíe to the land, and that' it was then vacant,) to notify defendants, by writing-to Pennsylvania, and giving them an opportunity to search for th.e warrant; to' institute an inquiry for the patent,. which must be delivered up and cancelled; to .find Fielding-Bradford, if living, qr his heirs, if he. should have died; and, after.obtaining all these prerequisites, tó cometo Chillic'othe,in Ohio, and enter the land in their own names. Because he did not do. this, he is charged' with not only overreaching the defendants, but also himself.
To. ascertain his duty in such ah exigency, we must look at all his liabilities and all the circumstances; for, from a correct view of these are the moral and .equitable obligations of men always derived. It is a matter of history that the holders of warrants, since' 1830, have been in the habit of laying them on all lands subject to entry, by reason of the previous entry b'eihg void as in this case. Many, valuable,farms, long cultivate/! and possessed under entries and surveys. made in the name of.one dead at the time, have been'taken from the pqssessors by subsequent'entries. “We mean no .disparagement to that officer,' when we assert that-the register himself; has’been in. the'habit of .ascertaining such cases) and buying warrants, and locating them on lands- thus situated. When, therefore, Gallo- . way-ascertained this to be the situation of the land hé had bought; when he looked to those to whom he had sold on the faith of such purchase, to whom- he was bound-to make titles; when he saw that this land; thus vacant, was' at the mercy of the many speculators Who. abounded in that quarter in search of such, lands; how--could he, in good conscience, let an- hour pass without placing himself and his vendees at rest as. to‘the title? Had he sent a courier to advise the defendants,-before he returned, the land would have been entered,, and thus he would forever lose one-half of it already paid for, and forfeit’ his contracts with' all to whom he had sold;. whilst the defendants could gain nothing by this idle and dilatory proceeding.
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The only course an honést man.could take xinder such circumstances,was that pursued by complainant: with his own funds he proceeded to make sure of the title necessary to fulfil his own contracts. He bought.and paid for the whple, and for pne-half of it he has paid twice. Shall all this sacrifice on his part, now enure to the benefit of those, who have led him into difficulty, from which1 he has been obliged to. extricate himself with his own means, through ignorance of'their right to that which they professed tp own, but which in fact was not theirs:
But if- the complainant had been the trustee of the defendants, constituted by deed to hold for them the very land in question; we contend that he had, -under the. circumstances, a right to purchase and hold it.'
"The law is settled, we believe, that where, by a judicial decision, the property held in trust is found to be owned-by anothei’, then'the trustee may lawfully purchase, the -property and hold it in his .own right. This'doctrine is founded in reason and equity; when the fiduciary character is terminated for .want of an object, the trust is at an end.' Hov.enden on Frauds, 474 — 5,482. Here the .land as to ich the supposed trust existed, by the judicial determination of other cases identical with this, was known to all who knew the law, to be vacant land, and to 'be owned, not by individuals, but by the government. In September, 1835, by the laws of the land, it was not the property of defendants; and therefore no trust in their favour can be raised on a contract concerning it.
‘In this view of the subject, the parties,, if either had any equity, stood precisely equal. Neither had any right to the land, in law or equity. If the complainant has appropriated it-by Valid entries first, he is the owner, and must hold it against all the world.. If .the possession and ownership of warrants give an equitable right to land, then complainant had equal right with defendants. The latter, in September, 1835, oxvned a warrant, or part of it, calling for 2200 acres of land in that district; complainant had also a wari-ant for that quantity; he entered his, and thus obtained a legal right to the specific land, better than the defendants’ equity, if such it may be called. In this view of their rights, the well established doctrines apply with full force in favour of complainant. Between equitable claimants, he who has precedencyin time has advantage in right. Fitzsimmons v. Ogden et al. 7 Cranch, 2 .
Having disposed of the. question of right, we think proper to sub
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mit an observation to the Court as to the effect of á refusal to rescind the contract. Complainant prays a rescission; and if that cannot be granted, a confirmation of the title. What compensation can .the Court make for the money expended in his second purchase. The land is held by virtue of Galloway’s entry; if he'is confirmed in this, and the contract still enforced, surely he is to be paid for his warrant. At what price is this to be estimated ? If his- expenditure enures to defendants.’ benefit, he should be allowed the amount of that expenditure on his contract? .What is that amount? It wpuld seem- to be quite impossible by a decree to compel Galloway to withdraw his entry, and go to the register’s office, and make an entry on Bradford’s warrant in the name of Bradford’s heirs. .-To‘enable the Coux-t to. see the equity of such a decree, it was incumbent on the defendánts to show the Court whether this warrant be in existence, and where it is; that it has not been assigned in whole or in part by any of the persons to whom it passed by descent; .that it is not in whole or in part iri the hands of a bona fide holder by transfer, as above suggested, so as to make it impossible to appropriate. land with it. Defendants should also show that this last could be done now, upon the instant, so that the land may not be subjected to that result which inevitably awaits it; an entry in the meantime by a third person, so ' soon, as Galloway’s entry- is declared, invalid. They should show that the patent is at hand, to be cancelled as the regulations of the land' office require, before any new title can be allowed to exist in its inceptive form, under the old warrant. • It was the total want of -,all these requisites to any safe and sure proceeding of the kind; all of which resulted from the ignorance of the defendants of that title ■ which they assured the complainant they had, and which by law thejt were bound to 'know they had; it'was this accumulation oi doubt surrounding the title, which might have been, by possibility, created with the aid-.of Bradford’s warrant, which made it not merely, the privilege but the duty of complainant to reject it altogether; .and for his- own security, to rely on his own funds, to repurchase of the government what he had in vain sought tp obtain through the defendants’ rights.. The Court cannot fail to see how great a perversion of language it would be to apply the phrase .employed by Lord' Nottingham-in Maynard’s case, to the conduct of complainant in this. It is said in that case, that equity will not aid one who “ over-. reaches himself.” .The idea of a reasonable being setting himself to work to practice knowingly a fraud on -himself, wnitíh seems the
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true and only definition of the phrase, is not according -to any established notion of human conduct so clearly possible, as to admit it amongst those plain and'simple elementary truths which compose the. great body of chancery law. It might naturally enough, howeyer, suggest itsqlf to a mind perplexed and mystified as his lprdship’s no doubt was, by the tortuous expedients of one of- the parties in that case, to gain an undue advantage. But as there is no similarity between the facts of ’that case and this, so there is no propriety in applying ally'rule of that case to the present. Instead of “overreaching himself,” the complainant in this ease, when he made his entry, stood exactly in the condition of a bona fide purchaser, finding his title not merely in peril, but utterly gone. He was compelled to protect himself. His is the case which a court of-equity will protect agaihst “ a creditor, or an heir, nr the fatherless.” Sugdén’s Vendors,-723-. His oWn warrant and hisowri entry, were the only plank he could’ seize in the shipwreck,' to which the culpable ignorance of the defendants as to their, own rights had exposed him.
Mr. Fetterman for the defendants.,
To form a correct opinion upon the- question, whether the com-; plainant, in this case, does present himself under circumstances which impose on a court of conscience obligations to give him its aid, it will be useful to take a general view of that system of land titles, which has been introduced into the^ Virginia military district, in the state of Ohio, within which’ the land in controversy lies. That system of law being made’up of usages, and growing out of circumstances, both of which are peculiar to itself, and out of the range of treatises on’ common law and • equity, the bar of Pennsylvania have had little occasion to make themselves acquainted with even the leading features and outlines of those military titles.
So far as my limited knowledge will -enable me, I will .attempt a concise statement of the several steps by which a military title is perfected. Upon proof to-the .executive of Virginia, by a person that he is entitled to bounty lands, under the law of that, state, for revolutionary services in the Virginia line, on continental establishment; the -governor issues his warrant, which is a mandate to the principal surveyor of the military district, directing him to survey for the person entitled to the bounty, the quantity of land specified in the warrant. 'The warrant does not direct what particular tract of land shall be surveyed; and by usage, the owner of the warrant,
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or his agent, has a right to direct the principal surveyor to survey the warrant; that is, the number of acres .called for by the warrant, in one or more tracts,.on any lands within the.district he shall designate, not previously appropriated to the-satisfaction of some other warrant. The specification of the particular tract or tracts selected in satisfaction of the warrant, is made in a book kept by the principal surveyor, called “The Book of Entries or Locations.” The .entry or location, is a mere entry or statement in the book aforesaid, of the quantity of land entered; the number of the warrant which it satisfies in whole or in part; the name of the person for whom the entry is made, together with a general description of the locality of the land entered. Any description which can be reduced to certainty by a subsequent survey, is,sufficiently certain and specific; next follows the survey of the entry, which must conform to the oalls of the. entry; a certified copy of the warrant,-entry, and survey on them, is forwarded to Washington city, to the commissioner of the' general land office of the United States, upon which a patent issues in conformity with the survey.
The owners of these warrants, for the-most part, resided in Eastern Virginia, several hundred miles from- the district;, and the lands were chiefly taken up, in satisfaction of them, at an early day, while the-district was a wilderness: consequently-, the whole business of. mak.ing entries or selections of land, wás by agents. These agents were generally deputy surveyors, appointed by the principal surveyor'to make surveys for ■him as his deputies. They, therefore, held the double relation, of agents for the owner of the warrants, and deputies of the principal surveyor Every holder of a warrant would-naturally seek to get the best lands unappropriated. To effect that object, men. who had acquired an intimate knowledge-of the. localities of the district, such as hunters, Indian spies, &c,, v ere sought after. This class of men took up the business of surveying, and became the deputies of the principal surveyor. The business of selecting land, and making entries' and-surveys for owners of warrants, fell' almost entirely into the hand's of this class of men.
There were no lawyers among thejn. This system of titles and. of'law, was not therefore marked out-by judges and lawyers; but by plain, practical woodsmen, .and Surveyors, who were ignorant of law as a science. The. property of a large and rich- country, is based upon their transactions. Courts, therefore, have inquired i •' to their usages, and have- sustained their proceedings, wherever they were
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not in conflict with established ■ principles of law, which the ministers of justice were bound to obey. These deputy surveyors were ignorant of the priricioles of the common law, £rthat to vest a- title to land, .'either legal or-equitable, there must be a person in esse , to take.” It was the common opinion of all locaters, that if the entry " and survey were made in the name of - the soldier' to whom the warrant-issued,-that was sufficient; without going into the inquiry whether he was dead or alive. • As a consequence of this general, error, avast ijumber of entries in ■ the military district,-both in Ohio and Kentucky,'were made in the names of deceased persons, to.whom warrants had issued. It is obvious, that such entries must have been made in ignoránce of the. law or the. facts, as, in every conceivable case, there Vras every induceriient-to make a valid entry; and no motive can be conceived for .the making of a void one. This subject attracted the attention of the Kentucky legislature, as early as the year. 1792. As it was • known these entries were numerous in. that state, and' intended to be bona fide appropriations of the land entered-in all instances, a quieting act-was passed in that yeár; which declared that lands granted to deceased persons, should descend to their heirs or devisees. Morehead and Brown’s Statutes of Kentucky, vol. 1,.779; Littell’s Laws, vol, 1, 160. This 'defect-seems not to have, come to the knowledge of the locaters in Ohio, who continued the same inode of location till 1830; when the Supreme Court of the United States decided that an entry in the name of a deceased person, was a nullity. Galt e’t al. v..Galloway, 4 Peters, 332. Same doctrine affirmed; M£Donald v. Smalley et al. 6 Peters, 261. By those decisions, the entry in the name of Bradford, in the .present case, would be a nullity, were no law of congress affecting'it not'applicable to .those cases. My present puipose is to treat the entry in. the name of Bradford, as a nullity; as though this, and the two cases above'referred to, were precisely the same in facts and circumstances. The entry, then, in the name of Bradford, being a nullity, it follows, of course, that the Warrant issued in his namp remained unsatisfied, and is so to this day; and that the warrant, on the deatft of Bradford, descended to the heirs of- Bradford; Kerr v. Moore, 9 Wheaton, 570; and not to bis administrators.
Consequently, the heirs of Bradford, on discovering the invalidity of the entry, had nothing to do but to re-enter the warrant on the same land, and acquire a-val id title.. ' In thjs way, they could have readily cured the defect, if any in tbe title of the land in question;
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for, up to the time of the entry made by the complainant,-in September, 1-835,'ths land remained unappropriated, according to com-' plainant’s own showing. That the respondents had it in their power to cure the. defect in their title, also appearS: by .the complainant’s" own Showing, and-by his own conduct; and it was to-prevent their doing-so, that the complainant kept the defect from the knowledge of the respondents, until he had effected an entry of the land ,in his own name. Had not Galloway entered this land, .but-filed his bill for'revision of contract,.for defect of title, would not the Court have said it is in the power of defendants to perfect their title, and they should have an opportunity of doing so? And how came he possessed of facts which- erabled him to detect the flaw in their title? As again appears, by his own showing, through the respondents. They communicated to him the date of the death of Bradford; on comparing which with the date of the entry, he being an old locater, and a party to the suits of Galt v. Galloway, and McDonald v. Smalley et al., knew full .well'the defects of the title; and equally well did he'know that the respondents were ignorant of- the defects. " When' therefore, through the-respondents, and in consequence of their contract with him, he became acquainted with this technical fláw in their title; of which they were totally ignoran^, what-was he bound in equity and good - conscience -to do? Had he a right to use that information, so acquired, to defeat their title; and to put it out of their power to comply with the contract with him? I think he was bound, by evéry principle of honesty and fair -dealing, to have poinG ed out the defect.to them, that they might, remedy it; (a matter so easy for them to -effect;) before they Would have had to make him a title, which, by their contract, they were not bound to do till Janu-" ary, 1839. If he was not morally bound to point out the defects, to them, he certainly had no right to do any act which would prevent their making him a title at the time stipulated.
I take it to be a well settled principle, both in law and equity, that an obligee shall do no act to obstruct or prevent the obligor from complying with his covenants; and if he do,'.the obligor shallbe" thereby" discharged from its performance. Bailo w-y. Tucker, 1 Pickering’s Rep. 287; Co. Lit. 206-; and Bacon’s Abridgment, Tit. Condition; 5 Yiner’s Abr. Condition, 242, &c. And when a complainant comes into a court of equity, liable to such' an imputation, it is certain that -the court will not grant him its aid, but will leave him to his remedy at law, if any he have, or is entitled to.
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That in this case the complainant has, knowingly and dishonestly, done an act which deprives the respondents of'the legal power fo Comply with their covenant to convey a gQod title; there can be no doubt resting'upon the mind of any one who will carefully examine the transactions as disclosed by the bills and answers. The Statute of Kentucky, before referred to, Morehead and Brown, vol. 1, 779;-Littell’s Law, vpl. 1, 160, 1792; shows, that the title was void by-reason of a technical rule of law. Yet they aré bona fide titles, which in equity-had a claim to protection. Hence the passage of that act. The words of that-act-are as follow: “Whereas, in some instances, grants have issued in the names of persons who. were deceased prior to tiie date of the grant, añd cases of the same,nature may happen in future; Be it enacted, That'in all such cases, the land conveyed shall descend to the heir', heirs, or devisees; in the same manner that it would do had the grant issued in the lifetime of such decedents.” This act; though its language extends to the healing of titles where the patent only issues before the death of the patentee, -yet the courts of Kentucky have; by a series of- decisions, extended the equity o'f, the act to .cases where-the entry and warrants bore date-subsequently to the déáth of patentee. Hamsford, v.'Mineler’s Heirs, 4 Bibb’s Rep. 385; McCracken’s Heirs v, Beall et al. 1 Ky. Rep. 208 ; Bowman v. Violely, 4 Monroe’s Rep. 351;. Adams'v. Logan, 6 Monroe, 177; Lewis v. M‘G-ee, 1 Marshall, 200; Speere v. Fisback, 1 Mar-shall, 356.
A recent act of congress, passed May 18th, 1836, entitled “An act to ’give effect to patents for public lands, issued in the. names of deceased persons, provides, that in all cases where patents-for public lands -have- been, or may be .issued in pursuance of any law of the United States; to a person who had died, or who shall hereafter die before the date of such patent, the title to the land desigiia.ted.therein shall enure to, and become vested in, the heirs, devisees of assignees of such deceased patentee; as if the. patent had issued to the deceased person during life; and the provisioris of said act shall-be construed to extend to patents for lauds within the Virginia military district in thé state of Ohio.”
It is apparent, from the provisions of thfe foregoing act, and from the fact that congress, saw fit to pass it, that that enlightenéd body considered as did the legislature of Kentucky nearly a half'century befóte,, such titles, though void in law, entitled-to protection, as bona fide; and but for the act of the complainant in this case, in entering
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tíie lands ' ip dispute, these respondents, beyond all doubt would,:by virtue, of the aforesaid act ofcbngfess, have'had secured- to them a-perfect legal title'-to said .land; arid X shall .endeavour to show that they have such -a title vested in them, by/virtue of ' said act of congress,1 notwithstanding the dishonest and fraudulent efforts of the complainant-to deprive them of that title — -of that hereafter,-when ~L shall have disposed of the pase, so far as it rests upon -equitable principle. Ann, it is not my purpose here to discuss the question, “ whether Galloway could,- under the 'qircumstances, recbvef in a cou.rt.of law, on the covenants of these respondents in their contract with.him;” whatever may be-his right in á court of law. It is very clear to my mind; that'a court of equity will leave him to resort to his legal remedies, if any he has; and will not afford hina its aid, to enable him to reap the fruits of'an attempt to overreach the respondents. It' is a leading principle of eqüity,.that a court of chancery, when called on for specific aijl, exercises its ‘discretion whether, it will interpose;-and will in no case interfere when the party seeking its aid-has practised any unfairness.' H-e must come into court-with clean hands. This principle is-as old-as the chancery law itself — as long ago as Sergeant Maynard’s case, Freeman, Chancery Reports, 1, new edition, lord Nottingham, in delivering the judgment of the court, said “that as this court suffers no man to overreach another, so it helps no man who has overreached, himself, without any practice or contrivance.of his adversary.” 2 Freeman, 106; 3 Swanston, 652, Maynard v. Morely,
Again, “in equity a party is not at liberty to set up a legal defence,which grew out" Of his own-misconduct,”12 Hovenden onFrauds, 16; Morse v..Mentz; 6 Maddocks, 25. ■ Surely, if such a legal defence could' not be set up, mudh -less could it be made a ground for relief by'a complainant. It ,s also a familiar rule in equity, “that he who comes into court for assistance, must do equity.” Rowe v. Wood, 1 Jac. & Walker’s Rep.. 333; 2 Hov. on Frauds,41. “The interposition of courts of eqüity is governed, by our anxious attention to the claims of equal justice; and. therefore it.may be.laid-down as an universal rule, that they will not interfere, unless the ¡.laintiff will consent to do that which, the justice of the casé requires to be dbne.” Fonblanque’s Equity, note-A. page 190, ch. 4, sec. 41: Phila. ed. 1831.
Now it may be asked, what does the justice of this case require of the complainant? -The Court will prescribe such terms to him as justice shall require; and those terms will be, I conceive, thgt he shall
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pay to the' respondents the Contract price? of land, agreeably to his contract; And that the respondents convey or assign to him» out of the unsatisfied warrants belonging to them, .a rtumber'of acres, equal to the quantity Contracted to be conveyed to him hy them,-and which he has put it-ou,t of. their power to convey. Both parties will theft stand as they would haveN done had the complainant not interfered,' and respondents re-entered and perfected their title. A vendor is entitled to' specific performance, though he have no'title at .the Sale, if he ean.make one before .the master’s report. 10 Vesey, jr, 315;14 V^eseyj jr. 205. There are many cases iri which, though courts refuse specific performance, yet they will not rescind contracts. ■ 1 Wheat. 196 ; see also 2 Story’s Equity, 88, and the cases there"referred to.
This, I fake it, would be fair and equitable, were the courts authorized and disposed to interfere in .granting relief in any shape;
But if 'I have a.correct view of the case, and the principles which should govern it, np relief whateyer can be. granted., A decree of dismissal of the bill, with eosts to the respondent, is all that can be done, and that on the ground that complainant asks the .aid of the Court to enable him to-o.verreach the respondents; and that is all that Lean discover he does seek.
I have thus far discussed the case, on the hypothesis that the title of the respondents was null and void. -1 shall no,w endeavour to show that though it was so in its inception, the law has come to their relief, and made that a valid title, which at one time-was'declared by. courts to bfe a nullity.
And the entry made by Galloway in September, 1835, is .null and void, on the ground of its being an illegal interference with the rights and title of the respondents, in violation of an express prohibition of law.
Up to tfie year 1807, the patent granted in the name of Bradford, a deceased person, was a mere nullity; it is conceded in -the authorities already cited. And any person holding a military warrant, might have entered the kmd it covered.
But since the 2d March, 1807, it is believed thé lands covered by the warrants in the name of Bradford,'have not been open to the' entry of any other person, or liable to be covered by any other warrant.
On the 2d' of March, 1807, congress passed an act, the 1st section of which extended to owners of military warrants a further, term of three years to complete their locations; which act had the following
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proviso: “Provided that no, locations as.aforesaid* within the above-mentioned tracts, shall, after the passingof4his act, be made on tracts of land for which patents had previously been issued, or which had .beeii previously surveyed. And' any patent which, may nevertheless be obtained for land locáted contrary to the provisions of this section, shall bé considered as null and .void.”
In May; 1826,:7 vol. Laws.of U. S. 516, congress passed an act extending the túne-for making locations till 1st of June, 1832. The 3d sec..of tbát act contains the prohibition of the act aforesaid of 1807; and extends that prohibition to United States’ lands, which the act of 1807 did’ not do. -
On the. 31st Of March, 1832, congress passed another act,-extending locátions for seven years. It being ah extension of .the act of 20th of March, 1826, of; course has the prohibiting claim as to military lands; and is now in force.
In the case under consideration, therewas both a survey and patent; and it furnishes a case clearly within the provision referred to. That the proviso'could have been intended only for valid surveys and patents, is idle, to suppose; such needed no protecting legislation. The proviso was intended to protect lands defectively located and paténted, no doubt; and.so the.Supreme. Court.of'the United States have decided. Doddridge v. Thompson, 9, Wheat 48J. In that case the Court say: “ The records of this Court show, that many controversies were produced in that county by .the. mode of locating and surveying .military lands, which had beep adopted under the laws of Virginia;’ and it is not unreasonable to 'suppose .that congress, when giving-fur* the*',time to make locations and surveys, might be disposed to cure the defects in titles already acquired, and to prevent second locations on lands already located. The words of the proviso, too, aré adapted to the saving of private rights.”
■ In' the case of Doddridge v. Thompson, the defendant attempted to protect his title under the proviso of the- act of 1807, on the ground that the survey of,the plaintiff was made in 1810, after, the passage of that act. But the Court decided that the proviso was not applicable to sales of land at the United States’ .land offices; and was intended to embrace only military surveys, and patents. Besides, the prohibition was only as against locations, a.nd the -facts of the case did not show .but the location was made previous to the passage of Jhe act of 180,7; and in the absence of proof oa that subject, the Court would presume that the location was- made previously in support of the
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patent of plaintiff. The reasoning of the Court in this"case, plainly, shows, that had the defendant’s title been one of military origin, and the location pf the-plaintiffs been , after the passage of the act of March, 1807,' his (the defendant’s) title must have prevailed by rea- • son of the proviso afdresaid.
In the case under consideration, the title of the respondents is'of military origin; and the location, survey and patents, all .bear date previous to . the passage of the act'of 2d M^rch, 1807.
The title of the complainants is also of military origin, ápd his location and survey are both since the passage of the act of March 31st; 1832, now in force, and containing the proviso of the act of-2d of March, 1807. It is not easy, therefore, to conceive how the location of the complainant, made on 26th of September, 1835, can possibly’escape the .operation of the proviso of the act of March, 1807,- and the prohibition contained therein. The location of the corn' plainant’s coming within that prohibition, then, as I huimbly conceive it clearly does, it must be null and v.oid. And the title of the. respondents being thereby freed from the embarrassments of Galloway’s entry, is by the healing operation of the act of'18th May, 183.6, made good and yalid. It may not be amiss to remark here, that so vigilant has congress been in protecting defective titles, acquired, bona fide, that after the decision in the case of Doddridge and. Thomp's. ., in whieh the Court decided that the proviso of the act' of 1807 did not éxtend to lands under the United States’’ survey; in the very next renewal of the extension of time for making locations in military lands, the prohibition was made to extend to lands within the district sold by the United States.
The decisions in the cases of Galt vr Galloway, and McDonald v. Smalley and others, (which have no doubt been relied upon by the complainant,- to sustain him in his illegal and unjust course of conduct in this case, being' a party to both those cases,) can have no bearing on this case. The facts in this case are so widely varying from the-facts of those cases, as to render them entirely inapplicable.
In those cases the party holding title under the entries • made in the name of the deceased person, could not avail himself of the'ben" fits of the proviso to the act of 1807; as the entries and surveys in each case, by both parties, were made previous to the passage of that act.
In Galt v. Galloway, Galt’s entry was made' in August, 1787, 4 Peters,.333, and the withdrawal in 1805, five years after Galt’s
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death, and two years before the passage of the act oif'1807. In M‘Donald v. Smalley et al., M‘Donald claimed under añ éntry. madé 24th August,-1787, in the name of David Anderson; at which time. Anderson'was proved to have been dead. The defendants, Smalley et aí., claimed under an entry on some land made the 19th of February,11793, ;n. the.name of Stephen T. Moron, and. a patent to Moron, in 1796, and before a patent issued on M‘Donald’s entry. These cases, therefore, not coming within the provision of the act of 1807, do not conflict; in th,e least, with the 'opinion of the Court in the case pf Doddridge y. Thompson, as to the intent of congress, and the healing operation of the act of ,1807; nor with the doctrines I contend for in this case. . The patent to Charles Bradford, the ancestor of respondents, purports to vest in him. a legal title to.the land in controversy. If the act of 1807, and subsequent acts of congress referred to, embrace, this case, as I think has been clearly shown they do; (and the-moré so, since being healing and remedial 'acts; théxr provisions aré to be construed liberally.;) then the benefits of those acts enure to the heirs or devisees of said Bradford. If the title be cured at all .by thosé acts, it is so far cured as to make it a legal title; for the patent must convey a legal title, if it pass any; of consequence, if the patents to Charles Bradford convey a legal title, the title ctf the respondents is a good and valid legal-title, .to-the extént they covenanted to convey. Arid the ground of complaint bn the part-of Galloway is gone: and his hill' must be dismissed- with costs.
I find nothing in the argument, or in the 'authorities cited' in the argument in: the circuit court, to shake my confidence in the legal title of the respondents, as cured by the acts of March, 1807; and May, 1836.
The case of Dunn v. M‘Arthur, decided in July, 1836, so far as the record of the' decree discloses, has no bearing upon the' question. The case as- stated by the gentleman, might be considered as of some weight. But is b® warranted in his statements by the records. The decree was taken pro confesso, and of course assumed as true all the allegations made ip the bill, The bill undoubtedly contained the allegation, that the entry, location, and patent were void, having been made-in the name of a deceased person; and at the time of the filing of that bill, (which is evident from the record must have been prior to the act of May, 1836,) there is as little, doubt that the entry, location and patents, were null and void. But by the act of May, 1836, they were made good and valid; and had that act been known and
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relied upon at the time of the entering of the decree, it is manifest a different' decree would have been the result. It does not appear that the act of May, 1836, was at all relied upon, or'that its existence was known; and it is fairly presumable that it. was not known, as the decree was entered but a few days after its passage, and the cause was suffered to go off without any defence. I take it, therefore, that the act of May, 1836, was not in question; and the decision or rather decree,-for there was no decision of consequence, has no application to the case under consideration. It could not, any how, be taken as of any -force in the garbled state in which it appears. Had the point been decided, as stated by the complainant’s counsel in the circuit court, a full'record would have been produced; and this Court would not have been asked to rely upon the bare statement of counsel.
The case of Blight’s ^Lessee v. Rochester, 7 Wheat. 54S, does not impugn the doctrine, that an obligee or covenantee has no right to do any act to prevent his obligor or covenantor complying with his obligation or covenant. The question in that case was'one of estoppel. The doctrine of estoppel does not apply to this case, nor does the question at all arise. I am unable to discover the least analogy between that case and this. Had the contract squght to be rescinded in this case never been entered into, but an action of eje.ctment brought by these respondents against Galloway; and in defence of such action Galloway had set up his subsequent entry, and the defective entry and survey in the name of Charles Bradford, to defeat the plaintiffs’ title.; and in answer to that defence the plaintiffs had insisted upon Galloway’s recognition of Charles Bradford’s title by his purchase from One of the heirs of Charles Bradford, (Finley Bradford of whom he purchased an undivided moiety,) and claimed that he should be thereby estopped from disputing the legality of Charles Bradford’s title; then the case cited from 7 Wheaton might have hád some application. But that is not this case. I do not deny that after the v.endee has received his deed, and all the title the vendor can give, he may have the right, of' purchasing in other interests to fortify his title. • But he shall not be permitted, before he has received a deed, to procure an outstanding title; and then claim to have his contract rescinded because by his own act he has put it out of the power of the vendor' to comply with his covenant or agreement. The utpiost he could claim under any circumstances, I apprehend, whuld be to have the amount paid for the outstanding title deducted from the purchase money due: to make it a ground of an
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nulling the contract and avoiding the payment of the purchase money entirely, would be monstrous injustice: such as I-believe a court of equity will never sanction or listen to.
If it is. at all doubtful wliether the respondents have the legal title in ordinary' cases, it is presumable that Galloway would have applied to the courts, either state or federal, within whose jurisdiction the land lies; and who would be considered competent át. least, in the first instance, to make á proper application of the principles of the leoi loci rei sitse.,,
He, however, has thought proper to resort to another tribunal, and from their decision he has appealed to the highest tribunal of the Union. - To that tribunal the defendants in error also come, confiding in the justice and honesty of their case; believing that the great judieiahcouncil of the nation will continue .to administer justice in equity: and who, although the decree they may make may riot settle the controversy, so far as regards the title to the land itself, will yet, by their opinion in this case, reaffirm the great and well-settled principles vf the law of equity that must govern this controversy-in all its bearings;'wherever pursued, and wherever,determined.
delivered the opinion.of the Court.
The-bill alleges that complainant, on the 11th of March, 1835, purchased from Henry R. Finley, and David Barr, who acted' for himself ánd wife, the sister of defendant, Finley, the moiety of two tracts of land.lying in the state of Ohio; one for one thousand two hundred; and the other'for one thousand acres, founded on a warrant for two thorisam1 six hundred and sixty-six and one-third acres, obtained by Ch.a’les Bradford, as an officer in the revolutionary war, in the Virginia continental line. That Finley, and the wife of Bari, were the heirs of their mother; who derived by descent a moiety of the lands/from her father, Crióles Bradford.
Galloway agreed to pay eight thousand dollars for the moiety of •the two tracts, part in hand, and the balance' by instalments; the last of which was to fall due on the first of January, 1839. And Finley and B^rr, covenanted with complainant to convey the moiety of- the lands contracted for, in fee, so soon as he paid the purchase money.
.It is also alleged,Finley and Barr promised, at the' time the agreement was made, to forward from Pennsylvania, where they resided, to Galloway, who resided in Ohio, the title papers, and'the power of attorney, authorizing Barreto,, contract for his wife.
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. That after the date of the contract, the wife of Barr died, a minor, intestate, of course, and without issue.
• As grounds of relief, it is averred that the title papers were not forwarded, nor the power produced. But,'principally, that after making the contract, the complainant discovered Charles Bradford, the grantee, had died in 1789; and that the lands were entered, surveyed, and granted in his name, in 179% and 1794.
Finley and Barr, by their answer, admit the contract to have been made as stated; deny that title papers were to be furnished by them; admit they promised to forward .the power, and the death of Mrs. Barr, but. allege respondent Finley was her sole heir '; admit Charles Bradford died in 178&, and that the lands were entered and surveyed in 1793, 94, and afterwards patented in his name.
The respondents, howeyer, mainly rely for their defence on the fact, that, on the '26th of September, 1835, the complainant, Galloway, entered the two tracts of land, the moiety of which was agreed to be conveyed, in his own name, and, as they, allege, without their knowledge, and with the fraudulent intent of depriving the heirs of Bradford; of it; • and thereby to render it impossible for them to comply with their contract. And the defendant, Finley, for himself, and as heir of his sister, offers to comply with the agreement.
It is urged,' the entries, surveys, and grants in the name of Charles Bradford, after his death, were void. • Suppose the fact to have been so when the agreement of March, 1836, was'made, and that the lands were subject to appropriation when Galloway entered them, in September, 1835, then the rule applies — “ That if a vendee buys up a better title than that-of the'vendor, and the vendor was guilty of no fraud, he can only be compelled to refund to the vendee .the amount of money paid for'the better title.” Learey v. Kirkpatrick; Cooke’s Ten. Rep. 211; Mitchell v. Barry, 4 Hayne’s Ten. Rep. 136. ’ In reforming the contract, equity treats, the purchaser as a trustee for the vendor,.because he holds under the latter: and acts done, tp perfect the title by the former,-when in possession of the land, enure to the benefit of him under whom the' possession was obtained,” and through whom the knowledge that; a defect in the title existed, was 'derived'. The vendor and vendee stand in the relation of landlord and tenant; the vendee cannot disavow the vendor’s title. 3 Peters, 48; 2 Marshall’s Ky. Rep. 242; 5 Yerger’s Ten. Rep. 398. This case'furnishes a fair illustration of the propriety of the principle. Charles Bradford was a non-resident; that he had died before the
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lands were entered and granted, was unknown to Galloway until he obtained the information through thé heirs of the grantor, after the sale; for forty years the title had been deemed valid, and the defect was exposed by the production of his will, and the 'endorsements of its probate, in 1789. The fact, thus ascertained, was confidential, in its character as between the parties to the contract; and Galloway could not beVper,mittpd to avail himself of it whilst standing in the relation 'of ¿ purchaser, to defeat the agreement: under the most favourable circumstances, he could only have it reformed, and the ’ánipqnt advanced to perfect the title deducted from the' unpaid purchase money. But this is not the attitude the complainant assumes by the bill first filed. He claims an entire rescission. ,
On the 20th of May, 1836, pending the suit,'-congress passed an act, 4 Story’s Ed. 24, 36? to give efféct to patents issued to deceased persons; which provides, “that grants'issued to persons who had previously died, should enure to and become vested in the heirs of such deceased patentee, as if the same had issued to' the deceased person during his life; and that the provisions of the act should be construed to extend to patents for lands within the Virginia military .district, in the state of Ohio.” -
That the legal title to the lands patented in the -name of Charles. Bradford, vested in his heirs by force of the act; cannot be denied'. 9 Cranch, 43 ; 2 Wheat. 196 . Grant, then, all that .is claimed for the complainant; still his entries of Septémber 1835, conferred a mere equity, and the defendant, Finley, holds the fee: and the complainant, by raising the warrants from his entries, will have sustained damage only to the amount of the. officer’s fees: or, take it the other way, and compel Finley and Barr to compensate for the warrants, then of course they would be entitled to them, and the effect be the same." Had Galloway’s entries been valid, and had he acted in good faith as regards the defendants, by giving notice of the means used to perfect the titles; and had he sought by the bill, what in equity and conscience he was entitled to as compensation, a court 'of chancery. could not have refused relief: but he invokes aid to defeat the. entire contract, and nothing.less, in sanction of acts intended, from his own -showing, to deprive the complainants of' their money and lands; thus assuming an attitude before the Court, and asking its active aid,,under circumstances, that, were he a defendant, and set up like claims, it would be difficult to say he could- be compensated; as a complainant, he surely cannot be heard.
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Then as to-the loss of the'warrants and fees: it having been the clear duty of the appellant' to enter the lands for the benefit óf his vendors, and only to have demanded compensation for expense and trouble: and he having entered for himself; a court of equity must decline to assist him, (in the language of, Mr. Justice Story, 2 Story’s Eq. 8,) to escape from the toils which he has studiously prepared to entangle others: it must be left to him to get rid of his entries, and secure the benefit of his warrants. The act of congress having'conferred on the defendant, Finley, the legal title, equity will not take fro.m him his legal advantage. 1 Wheat. 196 ; 2 Story’s Eq. 88; Sagden on Vendors, 365, 375, 7th ed. If Finley.has the title, and' can perform the contract on the 1st day of January, 1839, when the last payment falls due, this' is all the law can require of'him. Yet' it is an established rule in equity, that where the vendor has not the power to make title, the vendee may, before the time of performance,enjoin the payment of the purchase money, imtil the ability to comply with the agreement for title is shown; Royer v. Patton, 1 Ten. Rep. 258 : Ralston v. Miller, 3 Randolph’s Va. Rep. 44; but then the court will- give a reasonable time to procúre, the title, if it appears probable, on reference, that it may be. procured. Frost v. Bronson, 6 Yerger’s Rep. 36, 40.
By an amendment to his bill in October, 1836, the complainant sets forth his entries of 1835, and the surveys thereof, and again prays a rescission of the contract of March; 1835: “or, that if the defendants at the date of the contract, had a good'and perfect title to the premises they contracted to convey, and authority to perfect their agreement; then the complainant is ready, and tenders a com-, pletion of the contract.”
The only allegation in the amended bill, varying the case is, that at the time the agreement was entered into, complainant was ignorant that the patents for thé lands had been made in the name of a person that was dead. The respondents admit the fact: but state that complainant derived his first knowledge of its existence from a sight of Charles Bradford’s will, after he made the agreement. It seems respondents were.at that time equally igt rant, not knowing, or having overlooked the dates of the entries and patents. If complainant had not 'entered the lands, then he would have been entitled to a rescission of the contract; had no title been acquired by the defendants, through the medium ÓÍ congress.
The principal ground relied on for relief being, that the patents
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were'void, because - made after Charles Bradford’s death;-we will proceed to examine it. That a patent thus made;-passes no title, is true in tfie nature of things; there must bea grantee before-a-grant can take effect; and- so this Court'held, ih Galt v. Galloway, 4 Peters, 345;, and M'Donald v. Smalley, 6 Peters, 261. Yet this is not the question presented; it .is, whether the appellant was permitted to enter the lands purporting to have been granted to Charles Bradford, notwithstanding his death? And this' depends upondhe act of 1807; ch. 34, and others, continuing the provision up to the date of Galloway’s entries. The time for locating Virginia military claims for services on the continental establishment, between the Little Miami and Sciota rivers, had expired; .and hy the act, congress extended the time. But on reopening the land office, the following exception was introduced: ^Provided, That no locations as-aforesaid, within the abovementioned tract, sháll, after the passing of this’ act, be ipade on tracts of lands for which patents had previously been issued, or which had been previously surveyed; and any patent which may nevertheless be obtained for lands located contrary to the provisions of this section, shall be" considered, null and void.”
. It is insisted, for appellant, that the section had reference to imper-feet; and not"'void titles. The legislature .merely affirmed a principle; not ojien to question, if this be the true construction. Had an- effective patent been issued, the government would not have had any title remaining, and a second, grant would have been-void of course'. Something more,.undoubtedly, was intended than the protection of defective, yet valid surveys and patents; this is not denied, but the argument insists only irregularities were intended to be covered.
It is difficult to conceive how an irregular patent could exist, unless it passed no title. We will not perplex the decision with supposed cases of irregular surveys, but examine the act of congress, and ascertain.its effect as regards'the grant in the name of Charles Bradford. It is fair upon its face, and we will -not look behind it -for irregularities.. 7 Wheat. 214 . The death of th¿ grantee is an extrinsic fact,-not impairing’the equity of the'claim as against the government. His heirs had an interest in common in the military district, with all similar claimants. The truth of the position .is unquestionable. Jackson v. Clarke, 1 Peters, 635; Neal v. E. T. College, 6 Yerger’s Rep. 79, 190. The defects, of all others most common, in the military grants of Kentucky, Tennessee, and Ohio, were, where the soldier -had died, and the entry, survey and grant
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had' been made in the name of the 'deceased. ' In his name the warrant almost' uniformly issued; who the heirs were, was usually unknown to locators, and disregarded by the officers of government when perfecting titles. In Tennessee and Kentucky, provision was' made at an early day, that the heir should take by the graqt; and why. should We presume congress did not'provide for the protection of his claim to the lands purporting tc have been granted; when the legislation of the federal government .was, of necessity, .-controlled in this resp'eet, by the experience-of members coming from .states« where there were military lands? The statute is general, including by name ¿11 grants, not distinguishing between yoid and valid; and the plainest rules of propriety and justice-require tliat the courts • should not introduce an exception, the legislature having made none. 1 Peters, 636, 638; Martin & Yerger’s Ten. Rep. 361.
But it is insisted this Court did make an exception in the cause of Lindsey v. Miller, 6 . Peters, 666; and which should-be followed. What Was that case? A grantee from the government sued a defendant in ejectment, claiming, in the military district of Ohio, by virtue of an elder entry and survey; and the question was, whether the junior patent to plaintiff was void, because .made contrary to the act-of 1807. The defendant’s entry, by mistake, had been founded on a warrant for services, not in the continental line, but in the Virginia state Une; a claim not subject to .be satisfied in the Ohio -military district." 7 Wheat. 1 . The location and survey were therefore mere nullities; and the Court very justly held, that'congress did not, by the act of 1807, contemplate such claims, and that they were not within the purview of the act. But had the claimant been entitled to the- satisfaction of his warrant in the military district, in common with others, for whom the government held as trustee; the case might have been very diflfcreiR, oven bad the entry and survey, been invalid. Congress had the powerqin 1S07, to withhold frpm location pny portion of the military lands; and having done so, in regard tfr that previously patented'-iu the name of Charles Bradford, the complainant, Galloway, had no right to enter the same. His location being void, it follows, the-act of 20th May, 1836, vested- the title to a moiety in the defendant, Henry R. Finley, exempted from any influence of the entries. .
The decree of the circuit court is therefore affirmed, and the bill ordered to be dismissed. .
Cases cited
- 9 Wheat. 481 9 Wheat. 481 at 9 p. 274, p. 290, p. 291, p. 292
- Taylor's Lessee v. Myers 7 Wheat. 23 p. 275, p. 293
- 1 Wheat. 196 1 Wheat. 196 p. 289, p. 297
- 7 Wheat. 54 7 Wheat. 54 p. 293
- Rutherford v. Greene's heirs 2 Wheat. 196 p. 296
- 7 Wheat. 214 7 Wheat. 214 p. 298
- Miller v. Kerr 7 Wheat. 1 p. 299