source: Caselaw Access Project

author: Mr. Justice M'Lean

license: Public Domain

text:
    Henry Brush, Appellant, v. John H. Ware and others, Appellees.
    The executor of an officer in the Virginia line on the. .continental establishment, ob*. tained a certificate from the executive council of Virginia, as executor, for four thousand acres of land in the Virginia reserve, in the state of Ohio; and afterwards sold and. assigned the same. Entries were made, and warrants issued in favour of the assignees, and a survey was made under one of the warrants, in favour of one of the assignees, a bona fide purchaser, who obtained a patent from the United States for the land. It appeared that the executor had no right, under the will, to sell the land to which the testator was entitled. The patent was granted in 1818, and the patentee had been in possession of the land from 1808. The heirs of the officer, entitled to the land for military services, in 1839, some of them being minors, filed a bill to compel the patentee to convey the land held by him to them. Held, That the patentee was a purchaser with notice of the prior title of the heirs; and that he-was bound to make the conveyance asked from him.
    Whatever doubts on common law principles might have existed on the question, whether the Court can go behind the patent for lands, and examine the equity asserted in a bill claiming the land against the patent, in Ohio and Kentucky, this question has been long judicially settled; and this Court, following! the decisions of those states, have also decided it. .The cases of Bodley et al. v. Taylor, 5 Crunch 196, and Polk’s' lessee v. Wendáll, 9 Cranch, 93. 6 Wheat. 293. Miller et al. t). KeiV, 7 Wheat 1. Hoofnagle v. Anderson, 7 Wheat 212, cited.
    A patent appropriates the land called for, and is conclusive against rights subsequently acquired. But when an equitable right, which" originated before the date of the patent, whether by' the first entry or otherwise, is asserted, it may be examined.
    A patent for land under the Virginia land law, as modified by usage and judicial construction in Kentucky and Ohio, conveys the legal title, but leaves all equities open.
    To make a valid entry, seme object of notoriety must be called for; and unless this object be proved to have been generally known in the neighbourhood of the land, at the time of the entry, the holder of a warrant who enters the same land with full notice of the first entry, will have the better title. -And so if an entry be not specific as to the land intended to be appropriated, it conveys no notice to theeubsequent locator; nor can itbé made good by a subsequent purchase without notice. But! with those exceptions, the doctrine of constructive notice has been considered applicable to military titles as in other cases; and no reason is perceived why this 'rule should not prevail. From the nature of these titles, and the force of circumstances, an artificial system has been created; unlike any other; and which has long formed the basis of title to real estate in a large and fertile district of country. The peculiarities'of this.system having for half a century received judicial sanctions^ 3Barf.be preserved; but to extend them, would be unwise and impolitic.
    No principle is better established than that a-purchaser must look to every part -of the title which is essential to its validity.

      An executor has not, ordinarily, any power over the real estate. His powers are derived from the will, and he can do no valid act beyond his authority. Where a will contains no special provision on the subject, the land of the deceased descends to his heirs; and this right cannot be divested, or impaired by the unauthorized acts of the executor.
    The law requires reasonable diligence in a purchaser to ascertain any defect of title. Blit when such defect is brought to his knowledge, no inconvenience will excuse him from the utmost scrutiny. He is a voluntary purchaser, and having notice of a fact which casts doubt on the validity of his title, the rights of innocent persons are not to be prejudiced through his negligence.
    THE appellees, John H. Ware.and others,-heirs of John Hockaday, an officer in the Virginia line on the continental'establishment, filed their bill in the Circuit Court of Ohio, against the appellant, Henry Brush, and against others, for the recovery of certain lands in the state of Ohio, in the military reservation. John Hockaday was entitled, under the acts and resolutions of Congress, to four thousand acres, in the Virginia military reserve. Afterwards, on the motion of the complainants, the bill was dismissed as to all the defendants, except Henry Brush; and a decree havihg been entered in the Circuit Court in favour of the complainants, Henry Brush prosecuted this appeal.
    As the heirs of John Hockaday, the complainants, claimed title to the land in question. John Hockaday made his will, disposing of his personal property only; and Ware, one of the executors, proved the will. As executor of Hockaday, he made a fraudulent sale of the military right of the testator to one Joseph Ladd, and having obtained from the executive council of Virginia, a certificate of the right of John Hockaday for the land to which he was entitled, he assigned the. same to John Ladd. . On. this, certificate Ladd obtained, as the assignee of Ware, executor of John Hockaday, four warrants, each for oné thousand acres. Part of the land, under one of these warrants, through assignments to George Hoffman and others, became the property of Henry Brush; who, under an entry made by George Hoffman, obtained a patent for. the land held by him from the United States, on the twenty-third of January, 1818.
    The bill of the appellees asserts that Henry Brush was a purchaser. w.ith notice of the superior title of the heirs of John Hockaday, and prays that he may, by a decree of the Court, be directed to convey the land to them, they having the prior equity.
    In the answer of Brush, he says, the land in controversy was granted to him by patents, dated January 23, 1818; that he has no recollection or belief that he ever saw the warrant, entry, or survey, or copies of either; that he is an innocent purchaser for a valuable consideration: he denies all notice of complainant’s claim, at or before the emanation of the patents, and all knowledge of any fraud: he says he believes that the purchase by Ladd was fair, and for a valuable consideration: that he had no knowledge what the will of Hockaday contained: he says he has been in possession, under claim of title, since 1808, and has made lasting and valuable improvéments; and insists that complainants ought to be barred by the statute of limitations: artd that at any rate he ought to be paid for all improvements. And by his amended answer, he claims compensation for taxes paid, and for an allowance for a locator’s share; for expenses in perfecting the title; and claims all the surplus land in the surveys.
    The case was argued by Mr. Mason, for the appellant.. No counsel appeared for the appellees.
    Mr. Mason: — The appellant is a purchaser for valuable consideration without actual notice, and holds the land in controversy by patent from the United States.
    The heirs of John Hockaday, deceased, are proceeding by bill in chancery, to recover the land, on the alleged ground that the assignment of the claim of their ancestor to bounty-land was made by his executor without authority, and, consequently, that their rights are not divested or impaired by that transfer.
    Having acquired the legal title without notice of any adversary claim, the appellant is entitled to the aid and protection of the Court; '.“qnd'upon this principle, that all men who stand on equal ground, shall have equal equity; because the Court cannot do any thing for one without injuring the other.” No title can be better than the title'.of such a purchaser. If he has a legal title, the Court cannot interpose. Lord Drogheda' v. Malone, Finley’s Digest; cited in note to Mitford’s Ch. PL 3d. Am. ed. p. 340.

      Is the appellant affected by constructive notice ?
    Presumptive notice is where the law imputes to a purchaser the knowledge of a fact, of which the exercise of common prudence and ordinary diligence must have apprized him. As where a purchaser cannot make out a title but by a deed which leads him to another fact, whether by description of the parties, recital, or otherwise, he will be deemed connusant thereof.
    Constructive notice is, in its nature, no more than evidence of notice, the presumptions of which are so violent,that the Court will not allow of its béing controverted. 2 Sug. Vend. 292. Newl. Cont. 511.
    In Dexter v. Harris, 2 Mason’s C. C. Rep. 536, Mr. Justice Story says: “ There is no such principle of law, as that what is matter of record shall be constructive notice to a purchaser. • The doctrine upon this subject, as to purchasers, is this, that they are affected with constructive notice of all that is apparent upon the face of the title deeds, under which they claim, and of such other facts as those already known necessarily put them upon inquiry for, and as such inquiry, pursued with ordinary diligence and prudence, would bring to their knowledge. But of other, facts extrinsic of the title, and collateral to it, no constructive notice can be presumed; but it must be proved.”
    In Flagg v. Man, 2 Sumner’s C. C. Rep. 556, the same learned judge, after stating that constructive notice could not be rebutted, thought that the cases he had referred to, ought to “ admonish Courts of Equity in this country, where the registration of deeds, as matters of title, was universally provided for, not to enlarge the doctrine of constructive notice, or to follow all of the English cases on this subject, except with a cautious attention to their just application to the circumstances of our country, and to the structure of our laws;”
    Chancellor Kent (4 Com. p. 172, old ed.) declared, “ It was, indeed, difficult to define, with precision, the rules which.regulate implied or constructive notice, for it depended upon the infinitely varied circumstances of each case.” I shall contend that the doctrine of constructive notice is not applicable. to grants for land issued by public authority 5 nor does it apply to the purchaser of a military land warrant issued by the state of Virginia; nor tp the purchaser of an entry or survey in the state of Ohio, made in virtue of such warrant.
    1. Because there is a legal presumption, that the acts of the public agents employed to superintend and conduct the proceedings from the commencement of an inceptive title'to its consummation in a grant, have been in conformity with- law.

      2. Because the purchaser, though put upon inquiry by facts-already known, cannot, by the exercise of ordinary diligence.and prudence, arrive at the knowledge of other facts necessary to be known.
    3. Because in the case of military warrants, they are issued by the authority of a sovereign state, in pursuance of law; and the legal presumption is, that its officers have performed their duty in executing the trusts confided to them.
    4. Because,.lastly, such warrants are transferable by assignment ; and ought to pass, like commercial -paper, into the hands of a bona fide purchaser, discharged from all equities, of which 'he had not actual .notice.
    These propositions he hoped to maintain, both upon reason and authority.
    The doctrine of constructive notice has been too long established, to be now called in question. Therefore, it is not denied to be law, as applied by Courts of Equity to deeds, and other instruments of writing for the transmission of real estate from one individual to another. Public grants are supposed to rest upon a different foundation from.that of private conveyances. They emanate from the sovereign power of the country, according to certain rules and forms of .proceeding prescribed by itself, for the regulation of its own action. And when so issued, no matter what recitals the patent may contain,." every man has a right to draw from the existence of the grant itself,” the “ inference that every prerequisite has been performed,” and that these rules have been complied with on the part of the grantor. The legal presumption is in favour of the validity of every grant issued in the forms prescribed by law.”
    These- presumptions are not understood to exist in favour"of deeds and other transactions between private citizens; on the contrary, such deeds are not of themselves proof of title, and can be made so only by the aid of extrinsic evidence.

      A deed or will is merely a link in the chain of title, of which a patent is the beginning. The former transmits a legal title already in existence — the latter creates the legal title, and brings •it into existence.
    A public grant is not only an appropriation of the land, but is itself a perfect title. Green v. Lighter and others, 8 Cranch, 247-8.
    Officers are appointed &nd commissioned by the government for the express purpose of conducting and supervising all the preliminary proceedings from the origin to the consummation of the title; and when these incipient measures are completed, and the grant issued, the law presumes that the government agents have performed their duty, and that the grant is valid. In one word, it is a legal presumption, in favour of a patent, that there are no defects behind it, by which it can be invalidated, or avoided. But, notwithstanding this presumption, it is admitted that defectsjnay, in fact, exist. And hence, it is contended on the other side, that if the patent contains recitals which would fairly conduct an honest inquirer to the discovery of these defects, a purchaser is justly chargeable with notice of them, whether he made inquiry or not. And this upon the principle that he is guilty of' crassa negligentia, in not examining the nature and extent of a danger of which he had- .thus received notice. Will the law impute gross negligence to a purchaser for omitting to search for defects in the origin of his title, in a case where the law, at the same time, presumes that no defects exist? Is not one presumption inconsistent with the other ? Can they both exist togffiner in the same-case? And if they cannot, which ought to yield ? Can it be tolerated, as just, in any system of jurisprudence, that the law should first invite the confidence of the purchaser; and then turn against him, and treat that very confidence ás criminal ?
    ' The executive -of the United States has authority to issue patents to purchasers of the public lands. Indeed, it is one of the duties imposed upon him by the laws of Congress; and to see that the laws are faithfully executed, is as imperative on him in this branch, of the public service, as it is in any other. In the discharge of that duty, the exercise of a wider latitude of discretion and judgment, than is permitted in most other cases, is necessarily confided to that officer. He must be the judge of the sufficiency and regularity of the various preliminary steps required to be taken toward the completion of a legal title, and see that these prerequisites have all been complied with. The nature and extent of this discretion, could not be better illustrated, than by referring to the duties required to be performed by the. executive under our system of pre-emption laws, daily becoming more complicated. From the number of public agents employed, and from the character and variety of their duties, in the disposal of the public lands., the inference is irresistible, that errors must be committed. If, under such a state of things, the purchaser is to be/affected with notice of these irregularities, and that, too, after the emanation of the patent, there can be no security in land titles, no confidence in the action of the government.
    .But ought not the acts of the highest officer in the republic, when performed in the execution qf a function prescribed by law, and requiring the exercise of judgment and discretion, to be regarded by the citizen, as valid and..conclusive ?
    A contrary presumption, or the absence of any presumption in favour of the acts of a public officer, when performed within the sphere of his'duty, would make it' necessary for the private citizen, if he would avoid the consequences of constructive, notice, to visit .the land office and examine the records there; and at Washington city,-to satisfy himself that the officers had fulfilled their duty, before he coiild venture to become a purchaser. Upon this theory, he must re-judge, and at his own peril, What had already been adjudicated by a competent officer, charged with that particular duty.
    In such a case, he might differ from the officer; and the Court from both.
    The executive of the United States, in issuing patents for land, is required to perform, and does perform certain acts of a judicial nature. And when an executive officer acts judicially, as he often must, (for the idea of a perfect separation of the powers of government, is a mere abstraction, and wholly unattainablé in practice,) his decisions are as valid, and have the same effect as judgments pronounced by Courts of justice; and are, ordinarily, far more difficult to revise, if erroneous, than the latter. Judicial power, by whomsoever exercised, is judicial power still, and its determinations, whether announced from the bench, of at the council-table, have all the authority of adjudications made in conformity with law, and are entitled to be respected as such. The President prescribes the form of the grant, and decides from the evidence before him, whether a patent ought to issue; and whether the applicant, or which of the applicants, if more than one, is entitled to have the'grant.
    The presumption of law is, that he has decided these questions correctly; and, therefore, the purchaser is not obliged, in order to protect himself, to examine the grounds of the decision.,
    This is a contest between parties, claiming under the same title.
    In this case, the patent is valid upon its face; it was not .issued without authority; it was not protected' by statute; the United States had title to the thing granted; and hence the patent cannot be impeached collaterally in a' Court of law.
    In support of the'foregoing principles the Court are referred to the following cases, viz.: Polk’s Lessee v. Wendall, 9 Cranch, 87; S. C. 4 Cond. Rep. 650. Patterson v. Winn, 6 Cond. Rep. 355. Patterson v. Jenks et al. 2 Pet. Rep. 216. Stringer et al. v. Lessee of Young et al. 3 Peters, 320. Boardman et.al. v. Lessee of Reed & Ford et al. 6 Peters, 328. United States v. Arredondo et al. 6 Peters, 727 — 732. Miller v. Kerr, 5 Cond. Rep. 202. Hoofnagle et al. v. Anderson, >5 Cond. Rep. '271. Bouldin hnd Wife v. Massie’s Heirs, 5 Cond. Rep. 252.
    •It is a presumption' of law, that public agents and officers,-, appointed by government, have properly executed'their office,' and complied with the law, in discharging the duties imposed on them. Jackson v. Marsh, 6 Cow. 281; 4 -Crapch, 431. Taylor v. Brown, 5 Cranch, 242; 9 Cow. 110; 19 Johns'. Rep.-347; Buller’s- N. P. 298. Williams v. East India Company, 3 East’s Rep. 192. Strother v. Lucas, 12 Peters, 437.
    Every act required to be done from the commencement to the completion of a military title, derived from the laws of Virginia, is either performed by, or submitted to the cognisance of, an officer appointed for that particular, purpose.
    Now, as there is a' legal presumption in favour of the acts of these officers, I maintain that there is no place for the application of the doctrine of implied notice to this class of titles. The idea of presumptive notice is met and repelled by an antagonist presumption.
    Again, the distinction between a patent issued by the sovereign authority, and deeds from one citizen to another, is well illustrated by the fact, that the former, unless it is void upon its face, or has issued without authority, or is prohibited by statute, can only be set aside by a regular course of pleading, in which the fraud, irregularity, or mistake, is directly put in issue. And the state only can take advantage of an improvident or .mistaken grant. 3 Black. Com.-261. 1 Mum. 134. 2 Wash. 55. 4 Monroe, $1. 4 Bibb, 329. 5 Monroe, 213. 12 Johns. Rep. 77. 10 Johns. Rep. 23. 1 Mason,,153.' 1 Hen. & Mum. 306. 4 Johns. Rep. J 4 3. 2 Bibb, 628. 487.
    • The statute of frauds and perjuries has no application to public grants. Neither fraud, nor the want of consideration, can be averred as grounds to impeach a patent on the application of a creditor.
    But the doctrine of constructive notice does not apply to the purchaser of a military warrant, an entry* or a survey.
    Without intending to say that a warrant is not necessary to the válidity of an.entry, or that a survey would be good without an entry, I contend that a warrant is to be presumed from the existence of an entry; on the principle, that as it would be a violation of duty on the part of the principal surveyor to make or' record an entry without the authority of a warrant; and as the law will presume that the officer has duly executed his office, it follows, therefore, that an entry is proof, till the contrary appears, of the existence of a warrant.
    For the same reason a survey is presumptive evidence of the .existence of an entry duly made. These are official acts, performed by officers appointed ffiy public authority, and sworn tó perform these duties. And the law gives them credit for fidelity till the contrary is shown; and nothing, surely, can be more just and reasonable.
    Besides, as the law does not direct the warrant to be recorded-in' the surveyor’s office, and as it is not, in practice, recorded there, it may not be accessible to the purchaser; and, therefore, it would be unreasonable .to charge him, by implication, with a knowledge of its contents. It may have been lost, or destroyed, after the entry was made.
    The state of Virginia, and afterwards the Congress of the United States, early made provision for these casualties,by making “ a certified duplicate of the warrant” equivalent to the original, for the purpose of obtaining a patent. Ohio L. Laws, 1Í5. 133. And for another reason, the warrant may be beyond the reach .of the purchaser. It may, at the time, be in the hands of a deputy surveyor, for the purpose of executing a survey of that part of it which had not 'been surveyed before. Ohio L. Laws, 122.
    It is submitted, therefore, that the fact that the warrant may not at all times be within reach of the purchaser, affords a reason why he ought not to be affected with constructive notice of its contents.
    But, again, no more than ordinary diligence and prudence are required of a purchaser, in the cases where the doctrine of implied notice is admitted to be applicable.-v For, if a higher degree of diligence and attention than ordinary becomes necessary, the rule itself ceases. What are the facts of the case ?' The lands lie in the state of Ohio, where the office of the principal surveyor for the district is established. The tribunal that receives the evidence and adjudicates the right of the original claimant to bounty land, and which gives' the certificate; and also the office which issues the warrant, are all established in the state of Virginia, distant not less than six hundred miles from the land. If the claim was assigned before the warrant issued, the evidence of the power of the assignor to transfer the claim will not be found in the office of the principal surveyor in Ohio. It may or may not be found in the office of the Register at Richmond, for I know of no law requiring it to be filed or recorded there.
    Suppose, then, a citizen of Ohio or of some other state, wishes to purchase a tract of land in the Virginia military reserve in Ohio, what are the means within his reach, by which he may, in exercising ordinary diligence, shield himself against the consequences of constructive notice? The purchaser goes to the office of the principal surveyor for the district, and by the courtesy of that officer obtains permission to examine the records and files of the office. And what does he find there ? The warrant may be found there, or it may not, for reasons already stated. But constructive notice, if applicable at all, must be applied without regard to whether the warrant can, by any diligence, be found or not. If it is in the office, the purchaser will see from the face of it that it was issued to the soldier himself, or to heirs, or to an executor, or to a purchaser. But, in either case, the law presumes it properly issued; and, therefore, the law will' not charge the purchaser with knowledge that it was improperly issued to the warrantee. Neither the entry nor the survey gives any notice by which the purchaser is put upon inquiry for the rights of others; nor do they furnish any clew by which such rights can be ascertained.
    The warrant may have been assigned before or after its location ; in either case, the paper containing the assignment may or may not be filed in the surveyor’s office.
    If the requisite information cannot be obtained in the state where the land lies, will the Court say that ordinary diligence requires the purchaser to visit the land office at Richmond, to. examine for defects prior to the date of the warrant ? To do this, a citizen of Ohio must travel a distance, in going and returning, of twelve hundred miles. The expenses of such a journey would exceed the value of the land, in many instances; and the effect would be to exclude from the privilege of purchasing these lands, all except a 'few wealthy speculators who might afford to incur the expense. I need make no remarks on the justice or wisdom of such a policy. ■ Nor will I .do more than ask the Court to reflect on the consequences that must flow from establishing the doctrine of the Court below; consequences, which could they be limited to future transactions would be less disasterous: but we know they must operate on the past, and affect titles already acquired, thereby producing an aggregate of injury and suffering that-no sagacity can foresee or calculate.
    The'case of Reeder v. Barr, 4 Ohio Rep. 446, affords the first and only instance, as far as I know, in which the doctrine of implied notice has been applied to the recitals in a-patent issued by the United States for a portion of the public domain. And the decree from which we have'appealed seems to affirm the doctrine of that case, and to apply it, for the first time, I believe, to the militarv titles derived from the laws of Virginia.
    During the period of fifty years that these titles have been the subject of litigation in every form, known to the law, it is impossible to doubt that many cases must have occurred in which the principle of presumptive notice would have been asserted, if it had been supposed by the Courts, or bar, that such a principle' .was applicable to a purchaser of these titles. The ..absence of any adjudication in favour of the doctrine as now applied, is an argument of some force against it..
   Mr. Justice M'Lean

delivered the opinion of the Court.

This, is an appeal from the decree of the Circuit Court of Ohio.

In their bill the complainants represent, that they are the only heirs and legal representatives of John Hockaday, late of the county of New Kent, in the commonwealth of Virginia.

That Hockaday in the Revolution was a captain in the Virginia line on continental establishment, which, under the acts and resolutions of Congress entitled him to four thousand acres of land, in the Virginia reservation, within the state of Ohio. That in 1799*Hockaday died, leaving as his only child and heir Hannah C. Ware, who had intermarried with Robert S. Ware, and who was the mother of a part of the complainants, and the grandmother of the others.

That Hockaday left a will in which he disposed of his personal estate only, and appointed Ware, with two other persons,- his executors. Ware prdved the will, the others declining to act; and- that he.wholly neglected his duties as executor, and never settled the estate. That their mother died in 1805, and Robert S. Ware, theii father, also died some years afterwards. That in the year 1808, one Joseph Ladd, who has since deceased, being insolvent and without heirs, fraudulently made a contract with the exécutor for the sale of the above military right; and having obtained the certificate of such right from the executive council of Virginia, the same was assigned to Ladd for the consideration of forty dollars and a pair of boots. That on .this certificate and assignment Ladd obtained four warrants, of a thousand acres each, as the assignee of Yfare the executor of Hockaday.

One 'of these warrants was assigned to George Hoffman by Ladd, and through certain other assignments to Brush. By a part of this warrant the two tracts of land in controversy were entered, and for which Brush obtained patents from the United States, dated the 23d January, 1818. Apd the complainants-allege that Brush was a purchaser with notice of their equity; 'and they pray that he may be. decreed t.o convey to them the title, &c.

fn his answer the defendant states that he was a .bona fide purchaser, for a valuable consideration, and without'notice of the complainants’ equity.. And he insists if the Court shall decrée for the complainants, that he is entitled to the part usually given to the locator, for making the entry and obtaining the title for the land. And alsq-that he is entitled to moneys paid for taxes, &c., on the land.

This cause has been ably argued on the part of Brush, the appellant.

The question which lies at the foundation of this controversy, and which, in its order, should be .first considered, is, whether. the Court can go behind the patent, and examine -the equity asserted in the bill.

Whatever doubt might arise on this question on‘common la\y principles, there can be none when the peculiar system under which this title originated is considered. In Ohio and Kentucky this question has been' long settled judicially; and this Court, following the decisions of those states,' have also decided it. Bodley and others v. Taylor, 5 Cranch, 196.

In the case of Polk’s Lessee v. Wendall et al. 9 Cranch, 98, the Court say, “ that every pre-requisite has been performed, is an inference properly deducible, and which every man has a right to draw from the existence of the grant itself. It- would, therefore, be extremely unreasonable to avoid a grant in any court,, for irregularities in the conduct of those who are appointed by the government to supervise the progressive course of a title, from its commencement to its consummation in a patent. But there are some things so essential to the validity of the contract, that the great principles of justice ánd of law would be violated, did there, not exist some tribunal to which an injured party might appeal, and in which the means by which an elder title was acquired might be exaifiined.” And- the. Court, after showing - that a Court of Equity was the proper tribunal to make this examination, remark, “But there are cases in which a grant is absolutely void, as where the state has no title to the. thing granted; or where the officer had' no authority to issue the grant. In such cases the validity of the grant is.necessarily examinable at law.”

The same case, was again brought before the Court by a writ of error, and is reported in 5 Wheat. 293, in which the Court held, that the system under which land titles originated in Tennessee being peculiar, constituted, with the adjudication of its Courts, a rule of decision for this Court.

In the case of Miller and others v. Kerr and others, 7 Wheat. 1, it was held, that an equity arising from an entry of land made on a warrant which had been issued by mistake, could not be sustained against a patent issued on a junior entry. The Court say, “The great difficulty in. this case consists in the admission of any testiiqony whatever which calls into question the validity of a warrant issued by the officer to whom that duty is assigned by law. In examining this question, the distinction between an .act'Which is judicial "and one which is merely ministerial, must be regarded. . The ^Register of the land office is not at liberty to examine testimony, an,d to exercise his own judgment respecting the right of an applicant for a military land warrant.”

And in the case of Hoofnagle and others v. Anderson, 7 Wheat. 212, another question was raised on an entry made by virtue of the same warrant.

The mistake in the .warrant consisted in this. Thomas Powell having performed military services in the Virginia state line, a certificate by the executive council of Virginia was obtained by his heir, which entitled him.to a certain amount-of land. On this certificate, the Register of the land office at Richmond, Virginia, issued a warrant', which, instead of. reciting that the ..services were performed in the state- line, stated that they were performed in the state line on continental establishment. This mistake was important, as the tract of country in Ohio in which tjie warrant'was located, was reserved, in the cession by Virginia, for the. satisfaction-only of warrants issued for military services in the state line on continental establishment; and consequently was not subject ¿©'the right of Powell. And the Court remark, how far'the patent might to be affected by this error is the question oh which the cause depends. They say there was no ground to suspect fraud; that the warrant was assignable, and carried with it no evidence of the mistake which had been committed in the office^ that it had been assigned for a valuable consideration, and the purchaser had obtained a patent for the land without actual notice of any defect in the origin of his title; and they held that the patent gave a good title' as against anyone whose entry was subsequent to its date.

A patent appropriates the land called for, and is .conclusive against rights subsequently acquired.. But where an equitable right, which originated before the date óf the patent, whether by the first entry or otherwise, is asserted, it may be examined. The patent, under the Virginia land law, as modifiéd by usage and judicial construction in Kentucky and Ohio, conveys the legal title, but leaves all equities open, Bouldin and Wife v. Massie’s heirs and others, 7 Wheat. 149.

The controversy in this case, does not arise from adverse entries, but between claimants under the same warrant. And it is admitted that Ware, as executor, had no power to assign the military right, which, on the decease of Hockaday descended to his heirs. It is too clear to admit of doubt, that Ladd, by circumvention and fraud, obtained the assignment from the executor, which enabled him to procure the warrant from the register.

As between Ladd and ‘the complainants, can there be any doubt that this case would be examinable in equity ? Could the issuing of the warrant, by the Register, interpose any objection to such an investigation ?

It is insisted, that the Register, of necessity, before he, issues the warrant, must determine the right of the applicant; and that in doing so, he acts judicially. That presumptions hot only, arise in favour of such acts, but unless fraitd'be shown, they are not open to examination.

The executive council of Virginia, in detérmining the right of Hockaday’s heirs, may be said to have acted judicially. But the Register, in -the language of the Court, in one of the cases above cited, acted ministerially. The Court say he was not authorised to examine witnesses in the casé, but was bound to act upon the face of the certificate. ' The parties interested were not before him, and he had no means of ascertaining their names, giving them notice, or taking evidence. And under, such circumstances, would it not be a most extraordinary rule, .which should give a judicial character and effect to his proceeding. He acts, and must necessarily act from the face of the paper, both as it regards the certificate of the executive council, and the assignment of such certificate. His acts, in their nature, are strictly ministerial. They have neither the form nor effect of a judicial proceeding'.

It may be admitted that presumptions arise in favour of the acts of a ministerial officer, if apparently fair and legal, until they shall be impeached by evidence. But in this case, there is no impeachment of the acts of the Register. The evidence on which he acted, is stated on the face of the warrant, which enables the proper tribunal,.as between the parties interested, to determine the question of right, which the Register had neither the means nor the power to do.

The complainants do not deny the genuineness of the certificate, the assignment, or the warrant, but they say that the executor had no right to make the assignment; and that the issuing of the wárrant by the Register does not preclude them from raising that question.

Until the patents were obtained, this warrant, though assigned and entered in part, on the land in controversy, conveyed only an equitable interest. Hoffman, to whom Ladd assigned it, and the other assignees, took it, subject to all equities. In their hands, unless affected by the statute of limitation or lapse of time, any equity arising from the face of the instrument could be asserted against them, the same as against Ladd.

Brush, being the last assignee, obtained the patents in his own name as assignee, and these vested in him the legal estate. But this, on the principles which have been long established, in relation to these titles* does not bar a prior equity, The complainants are proved, to be the heirs of Hockaday, and a part of them were minors at jhe commencement of this suit. All of them, in age, were of tender years, when the warrant was assigned,'- áfid it appears,that none of them came to a knowledge of their .rights, until a short time before-the bill was filed; . And this is afi answer both to the^statute of limitations'and the lapse of time. The statute of Ohio does not run against non-residents of the state; nor can lapse of time operate against infants, under the circumstances of this case.

The great question in this controversy is, whether Brush is •chargeable with notice.

The certificate of the executive council of Virginia stated, that “the representatives of John Hockaday were entitled to the proportion of land allowed a captain of the continental line for three years’ service.” To this was appended a request to the Register of the land office to issue a warrant, in the name of Joseph Ladd, his heirs or assigns, signed by Ware, executor of Hockaday, he having received, as stated, full value for the same.

Four military ^warrants, of one thousand ■ acres each, were issued by the Register, “ the 9th of August, 1808, to Joseph Ladd, assignee of Robert. S. Ware, executof of John Hockaday, deceased,”

By virtue of one of these warrants, four hundred acres of the land in dispute were entered the 8th of June, 1S09, in the name of George;.Hoffman, assignee, and two hundred acres, in the same name, the 18th of August, 1810. These entries were surveyed in May, 1810, and on the 20th.of January, 1818, patents were issued to “ Brush, assignee of John Hoffman,’, who was assignee of Joseph Hoffman et al., assignees ’of George Hoffman, who was assignee of Joseph Ladd, assignee of Robert S. Ware, executor -of Hockaday,” &c.

It is insisted that the general doctrine of notice does not apply to titles of this description. And this position is true, so far aS regards the original pntry. _ To make a valid entry, some object of notoriety must be'called for; and unless this object be proved to have been generally known in the neighbourhood of the land, at the time of the. entry, the holder of a warrant who enters the same land, with full notice of the- first entry, will have the better title. Andso', if-an entry be not specific ás to the land intended to be appropriated, or in any respect be defective, it conveys no notice to a subsequent locator, nor can it be made gopd by a subsequent purchaser'without notice. Kerr v. Watts, 6 Wheat. 560. But, with these exceptions, the doctrine of i notice has been considered applicable, to these military titles, as' in other ca^es. And no reason is perceived why this rule should not prevail!

From the nature of these titles, and the force of circumstances, an artificial system has been created, unlike any other; and which has long formed the basis of title to real estate, in a large and fertile district of country.' The' peculiarities of this system, having for half a century received judicial sanctions, must be preserved; but to extend them, would be unwise and impolitic.

Brush, it is insisted, was a bona fide purchaser for a valuable consideration, without notice.

The answer under which this defence is set .up, is rifeither in substance nor in.form free fiom objection. It does not state the amount of consideration paid, the time of payment, nor does it deny the circumstances from which notice can be inferred. Boon v. Chiles, 10 Peters, 211, 212. But, passing over the considerations which arise out of the answer, we will inquire whether the defendant is not chargeable with notice, from the .facts which appear upon the face of his title.

. The entry on the books of the surveyor* kept at the time, in the state of Kentucky, was the incipient step in the acquisition of the title. This entry could only be made by producing to the surveyor, and filing - in his office, the original warrant, or a certified copy of it The-survey was then made, and:a plat of the land, by a deputy, who returned the same to the principal surveyor’s office. • This survey is called the plat and certificate, and is assignable by law; but,Without an entry founded upon a warrant, it is of no validity. On the transmission of this survey, under-the hand and seal of the principal surveyor, accompanied by the original warrant, or a copy, to the general land office, a patent is issued to the person apparently entitled to it. In issuing the patent, the commissioner of the land office performs a ministerial duty. He examines no witnesses, but acts from the face of the papers, and exercises no judgment on the -subject, except so far as regards matters of form. The patent, therefore, conveys the legal title only, leaving prior equities open to.investigation.

This is the history of this title, and of every other in the same district of country. And the question arises whether the re-, spondent, under the circumstances, was a bona fide purchaser for a valuable consideration, without notice..

In his answer, he says that he never saw the warrant, the entries,nor the surveys on which the patents were founded; and that he had no information as to the derivation of the title, except that which the patents contain.

The question is not whether the defendant in fact saw any of the muniments of title, but whether, he was not -bound to' see them. It will not do for a purchaser to close his eyes to facts; facts which were open to his investigation, by the" exercise of that diligence which' the law imposes. Such purchasers are not protected.

It is insisted that the plats and certificates being assignable, the defendant might well purchase them without a knowledge of the facts contained on the face of the warrant. But was he not bound to look to the warrant as the foundation of his title ? The surveys were of no value without the warrant. No principle is better established, than that a purchaser must look to every part of the title which is essential to its validity.

The warrant was in the land office of the principal surveyor; and although this, at the time, was kept in Kentucky, the defendant .was bound to examine it. In this office his entries were made, and to it his. surveys were returned. And from this office was the evidence transmitted, on which the patents were issued. Can it be contended that the defendant, who purchased an inchoate title, a mere equity, was not bound to-look into the origin of that equity? As a prudent man, would he not examine whether that which he bought was of any value ?■' The records of the land office, and the papers there on file, showed the origin, of the title, and the steps which had been taken to perfect it. By the exercise of ordinary prudence he would have been ied to make this examination; and, in law, he must be considered as having made it.

And here the question arises, whether the statements of the warrant, which were afterwards copied into,the patents, that the right originally belonged to Hockaday, descended to 1 lis heirs, on his decease, and had been assigned to Ladd, by his executor; were not sufficient to put the defendant on inquiry? Now, an execútor has not, ordinarily, any power over the real estate. His powers are derived from the will, and he can do no valid, act ■ beyond his authority. Where a will contains no special provision on the • subject, the land of the deceased descends to his heirs; and their rights cannot be divested or impaired by'the unauthorized acts of the executor.

The warrant then showed the purchaser'that this, right, which pertained to the realty, and which, on the death of Hockaday, descended to his heirs, had been assigned by the executor. Was not this notice ? Was it not a fact, essentially connected with ■the title purchased by the defendant, which should have put him upon inquiry? If it would do this, it was notice; for whatever shall put a prudent man on inquiry is sufficient. . And this rule is founded on sound reason, as well as law. How can an individual claim as an innocent purchaser, under such , a circumstance ?

But it is argued that it would impose on the defendant an unreasonable duty, to hold that he was bound not only to examine the warrant in the land office in Kentucky, but to hunt up the will of Hockaday, and see what powers it conferred on the- executor.

The law requires reasonable diligence in a purchaser to ascertain any defect of title. But when such defect is brought to his knowledge, no inconvenience will excuse him from the utmost scrutiny. He is a voluntary purchaser, and having notice of a fact which casts doubt upon the validity of his title, are the rights of innocent persons to be prejudiced through his negligence ?

The will of Hockaday was proved the 11th day of July, 1.799, before the County Court of New Kent, in Virginia, and. recorded in the proper records of that county. When the defendant purchased the title he knew that it originated in Virginia, had been sanctioned by the executive council-of that state, and that the warrant had been issued by the Register at Richmond. These are matters of public law, and are consequently known to all. But, independently of this, every purchaser of a military title cannot but have a general knowledge of its history.

Why was hot the defendant bound to search for the will ? The answer given is, the distance was too great, and the place where the will could be found was not stated on the warrant, or. on any of the other papers. That mere distance shall excuse inquiry in such a case, would be a new principle in the law of notice.

The certificate of the original right, and the warrant, were obtained in Richmond, Virginia. And in the office records and papers of the executive council, or in those of the register in Richmond, a copy of the will, probably, could have been found. And if such á search had been fruitless, it-is certain that it could have been found-on the public records of wills of New Kent county. A search short of this, would not lay the foundation for parol evidence of the contents of a written instrument. And shall a purchaser make a bad title good, by neglecting or refusing to use the same amount of vigilance ?

In the case of Reeder et al. v. Barr et al., 4 Ohio Rep. 458, the Supreme Court of Ohio held, that where a patent was issued to Newell, as assignee of the administrator of Henson Reeder, deceased, it was -sufficient to charge a subsequent purchaser with notice of the equitable rights of the heirs of Reeder.

It is difficult to draw a distinction, in principle, between that case and the one under consideration. An administrator in Ohio has no power, unless authorized by the Court of Common Pleas, to sell or convey an interest in land; nor has an executor, in Virginia any power over the realty, unless it be given to him in the will. In this case, therefore, the purchaser was as much bound to look.into the will for the authority of the executor, as the Ohio purchaser was bound to look into the proceedings of the-Court for the- authority of the administrator.

The ease of the lessee of Willis v. Bucher, 2 Binn. 455, is- also-in point. The defendant derived his title from William Willis, to •whom a patent had issued, reciting that the, title was derived-under the will of Henry Willis. This will did not authorize the sale of the premises, and the Court held that this was notice to-the defendant.

So in the case of Jackson ex dem. Livingston v. Neely, 10 John. Rep. 374, it was held, that where a deed recited a letter of attorney, by virtue of which the conveyance was made, which was-duly deposited with the clerk of Albany, according to the act of the 8th January, 1794, it was held to be sufficient notice of the power by means of the recital, to a subsequent purchaser, who-was - equally affected by it, as if the power itself had been deposited.

• An agent receiving notes from an executor, payable to him as executor, as security for advances by the principal to the executor. on his private account, and not as executor, affects his principal with notice that it is a dealing with an executor with the assets for a purpose foreign to the trusts he was to discharge. 2 Ball and Beat. 491.

When a purchaser cannot make out his title but through a deed which leads to a fact, he will be affected with notice of that fact. Mertins v. Jolliffe, Amb. 311.

A. made a conveyance to B., with a power of revocation by will, and limited other uses. If A. dispose to a purchaser by will, a subsequent purchaser is intended to have notice of the will as well as of the power to revoke; and this is a notice in law. And so in all cases where a purchaser cannot make Out a title, but by deed which lead's to another fact, notice of which a purchaser shall be presumed cognisant; for it is brassa negligentia, that he sought.not after it, Moore v. Bennet, 2 Ch. Ca. 246.

Notice of letters patent, in which there was a trust for creditors, is sufficient notice of the trust. Dunch v. Kent, 1 Vern. 319.

• That which shall be sufficient to put the party upon inquiry, is notice. 13 Ves. 120.

On a full consideration of this part of the case, we think that the defendant must be held to be a purchaser with notice.

The Circuit Court considered the defendant as vested with a right to such part of the land as• is usually given to a locator, and directed one-fourth of the two tracts to.be laid off to him so-as to include his improvements; and they also decreed to the defendant three-fourths of the .taxes paid by him, with interest. This part of.the decree is equitable; and as w;e coincide with the views of the Circuit Court-on all the points of the case, the decree is affirmed.


author: Mr. Justice M‘Lean

text:
    John B. Gorman and others, Plaintiffs in error, v. Peter Lenox’s Executors, Defendants in error.
    On a demurrer being filed, the rule is, that the party who has committed the first fault shall have judgment against him.
    Where a declaration is on a bond given to prosecute with effect a writ of replevin, and the breach assigned is, “that the suit was not prosecuted with effect,” it is sufficient.
    A certiorari'had been issued by the.Supreme Court to the Circuit Court, on an allegation of diminution, and the judgment in the replevin suit certified to the Supreme Court, under the certiorari, substantially differed from the judgment described in the declaration On’’the replevin bond, in a suit 'in' the Circuit Court, brought after the judgment was rendered. In the Circuit Court, in the suit on the replevin bond, the judgment was used in evidence without objection. Held, that the judgment was properly given in .evidence, to show the amount of damages which the plaintiffs in the replevin suit had sustained; and the defendants in the suit' ón the replevin . bond, had no right to go into any inquiry as to the evidence on which the verdict was rendered.
    Evidence of set-off between the plaintiffs and the defendants in a suit on a replevin bond, the set-off not having any application to the demand on the replevin bond, which was given after a distress for rent, and in which judgment for the rent had been given for .the avowant, is inadmissible. The evidence was not offered to show that judgment had been satisfied, but that it ought never to have been given.
    ERROR to the Circuit Court of the United States for the county of Washington, in the District of Columbia.
    This case was argued at January term, 1840, by Messrs. Hoban and Cóxe,. for the plaintiffs in error; and by Mr. Brent, for the defendants: at this term,
   Mr. Justice M‘Lean

delivered the opinion of the Court.

This case comes before this .Court from the Circuit Court of the District of Columbia, on a writ of error.

An action was brought in the Circuit Court, by the executors of Lenox against the plaintiffs in error, on .a bond given by them in the penalty of three thousand four hundred dollars; with the condition “that the said John B. Gorman should well and truly prose'cute a certain writ of replevin with effectand also, “ should return the goods and chattels replevied, if the same be adjudged, and in all things stand to and abide by, perform and fulfil, the judgment of the Court in the premises.”

To the declaration the defendants filed a plea of performance, to which the plaintiffs demurred.

The defendants also put in a plea, of set-off, that the testator was indebted unto the said Gorman, in the sum of twelve hundred thirty-eight dollars ninety-six.cents, for so much money, &c„ and for a like sum for goods, wares, and merchandise. To this plea the plaintiff replied the general issue of non assumpsit. . The statute- of limitations was also replied to this plea of set-off, on which issue was joined. The cause on these issues was submitted to a jury, who returned a verdict for the plaintiffs, for the sum qf one • thousand and eighty-eight dollars and twenty-five cents, as the amount of damages on the bond.

After the verdict, the demurrer filed to the plea of performance’' was argued and sustained; and -thereupon, a-judgment was entered for the penalty in the bond, to be released on the'-pay-' ment of the sum found by the jury. .

On the trial, the plaintiffs; by their counsel, offered in evidence to the jury, the record and minutes of proceeding in the case of Gorman v. Lenox’s executors, and claimed the verdict of the jury for the.amount of the rent in arrear found by the jury in that case. And the defendants then “ offered-to prove the set-off filed in this cause, for the purpose of showing .that no rent in arrear was actually due, as found by said verdict, from Mrs. Arg'uelis, as charged in the said avowry; -and that, therefore the. plaintiffs were not damaged to that amount.: But the Court were of opinion .that such evidence, so offered by the defendants, was inadmissible; to which decision defendants excepted.”

And the defendants further prayed the Court: to' instruct the jury, that the.plaintiffs were not entitled to recover for the- rent in arrear, as aforesaid found by the jury, in the record aforesaid, above given in evidence; which the Court refused to give.

This record is most loosely and informally made up. But little attention seems tó have been' paid to the issues made, or to the order in which they were tried.

To the plea of set-off, the plaintiffs below -replied the general issue of non assumpsit, a,nd also the statute oflimitations; when the more regular mode of testing the validity of the plea would' have been by a demurrer. ‘ Indeed, it is a matter of surprise that so obvious a-course was not taken. But this irregularity seems hot to be important, as on the trial of these issues the defendants offered evidence under the plea of set-off; which' was overruled by the Court. This, in effect, aétermined the matter pf the plea.

The demurrer to the plea of generaLperformance, seems not. to have been decided until after the verdict was rendered. As this plea .was clearly bad, the demurrer was very properly sustained by the Court..

A demurrer being filed, the rule is, that the party who has committed‘the first fault shall have judgment against him. And On this demurrer a qúestion is raised as to the sufficiency of the declaration.- The' breach assigned in the declaration is; that the said Gorman did not prosecute the writ of replevin with effect,, nor return the goods and chattels replevied, nor pay to the plaint tiffs the damages and costs, recovered.

The breaches are not.'assigned with care, and the judgment recovered in the replevin suit, is inartificially stated in the declaration. But it seems where the declaration is on a bond, given to prosecute with effect a writ of replevin, a breach assigned as iii this declaration, ‘f that the suit was not prosecuted with effect,” is sufficient. 11 Serg. and Lowber, 236. 6 Har. and Johns. 139. 2 Gill and Johns. 441—443.

The record of the judgment in the replevin suit, as certified in obedience to the writ of certiorari, substantially differs from the judgment described in' the declaration; but the record of this judgment was only used as evidence in the Circuit Court; and no objection was made to it. The variance, not having been excepted to in that Court, it cannot now be noticed. The objection, as stated in the second bill of exceptions, was, that the amount of the rent in arrear found by the jury could mot be received in evidence in this suit.

The action being brought on a penal bond,, under thé Maryland practice, it was the province of the jury to assess the damages Which the plaintiffs had a right to recover ; ana the judgment in the replevin suit was given in evidence, to show the amount of damages which the plaintiffs had sustained. This was undoubtedly correct;..and it is equally clear that the defendants, had no right to go into any inquiry as to the evidence on which the verdict was rendered. The jury found in the replevin -suit, the amount of rent in arrear, on which the distress was made; and this was the proper criterion of damages in that case.

. There was no error in the Circuit Court, therefore, in overruling this objection.

It is equally clear, that the Court properly rejected all evidence under the plea of set-off. This was, substantially, an attempt to prove that there was no ground for the verdict and judgment .for damages, in the replevin suit. The offer was not to show that such judgment had been satisfied, but that it ought never to have been given.

This evidence of set-off was also inadmissible, on the ground that it relates to different parties from those in the present suit.

Upon the whole, the judgment of the Circuit Court is affirmed, with costs.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of-Columbia, holdén in and for the pounty of Washington, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said Circuit Court, in thiá cause be, and the same is hereby, affirmed, with costs and damages, at the rate of six per centum per annum! •


author: Mr. Chief Justice Taney

text:
    Ex parte Anderson Crenshaw.
    An appeal was prosecuted by the complainants in the Circuit' Court of Alabama, to the Supreme Court, and the citation required by the act of Congress had not been served on the appellee,, and he had no notice of the appeal. In printing the copy of the record of the Circuit Court, the return of the marshal of the district, stating that the citation to the appellee had not been served, was accidentally omitted. The Court, on motion by the counsel for the appellee, declared the decree in the case made at January term, 1840, null and void; revoked the mandate issued to the Circuit Court of Alabama, and dismissed the appeal.
    AT January term, 1840, the case of Jefferson L. Edmonds et al. appellants, v. Anderson Crenshaw was brought before the Court, on appeal from the decree of the Circuit Court of Alabama, which had been given in favour of the appellee; in which Court the bill of the complainants, the appellants, was ordered to be dismissed. The Supreme Court had proceeded to hear and adjudge the case, after argument for the appellants by their counsel, Mr. Key, no counsel having appeared for Mr. Crenshaw, (14 Peters, 166,) and had reversed the decree of the Circuit Court.
    It was afterwards discovered that a citation on the appeal had never been served on the appellee, and that the Court was, by an accidental circumstance, in the printing of the transcript of the record for the use of the Supreme Court, led to the belief that the appellee -had been cited to appear, in the manner required by the judiciary law. Under this belief, the Court had proceeded to. a decision of the case.
    Mr. Sergeant, for Mr. Crenshaw, on notice to Mr. Key, the counsel for Jefferson L. EdmOnds and others, moved the Court, oft the first day of the term, to. set aside and annul the judgment and .decree of this Court, in the case, on the ground that no citation had been served upon the appellee, nor other notice given to him of the appeal; and that the same was heard ex parte.
    • He also moved to dismiss the case on the ground that it was brought up by writ of error, instead of appeal; and whether by appeal or writ of error, it was not in time; and also on other grounds.

      The motion was argued by Mr. Sergeant, for Mr. Crenshaw; and by Mr. Key, for Mr. Edmonds and others.
    Mr. Sergeant, in support of the motion, first exhibited the printed copy of the record, showing, that owing to some mistake, a material part of the record had been omitted in the printing; and thus it had happened that this Court were not informed that there had been no notice of the appeal. The omitted part purported to be a return to the citation,.and was as follows: “ Rec’d. Dec. 29, 1838; not found Jart. 1839, R. L. Crawford, U. S. M. by, C. Cuyler, D. M.” This'could not have been in time, if served immediately on coming to-, the officer’s hands. The return day was the second Monday of January, 1,839, less than, thirty-days. Where the citation had been from the time it was issued, 15th May, 1838, did not appear.
    He next read the affidavits of Anderson Crenshaw, of Robert G-. Gordon, one of his counsel below, of David Files, clerk of the Circuit Court of the Alabama district, and of Robert L. Crawford, marshal, to prove that there was no notice or knowledge of the removal of the case here; and also that Judge Crenshaw, 'the appellee/ was a known resident of the district, who could be found.
    He next proceeded to show from the printed record the following facts:
    That the decree below, which was on the equity side of the Court, was made and rendered on the second Monday of December, 1829.
    That a petition for an appeal was filed in the clerk’s office, (but not presented to the Court,) on the 13th August, 1836. This appeal was not -allowed, nor security given; nor does it appear to have been prosecuted.
    On the same, day,'13th August, 1836, a writ of error was .issued, and. security given by bond, dated 5th September, 1836;. the only security that ever was given. This bond was, in express terms, for prosecuting the writ of error. Upon this writ, and not otherwise, the cáse came here. There could not be both error and appeal.
    That whether it was error or appeal, it was out of time. There were more than five years from the decree (December, 1829) to the .petition for appeal, and suing out the writ of efror, (13 August, 1836,) still longer, to the giving the bond in error, (5 September, 1836,) and the citation was not till 1838. This being the general rule, if the appellants rely upon any exception, it is for them to prove it. They have not done so.
    The bill, in the Court below, was fil^d on the 22d March, 1827. The complainants were a man and his wife, of full age, a lady of full age. But the question is, how they stood at the. time of. the decree, and till within five years of the writ of error.
    Upon this point of fact; there is no proof whatever. There is not even a formal allegation; in support of which evidence could be received, or upon which an-, issue could be tendered. In the petition for the appeal, there is an averment that one of the parties remained a minor. In the writ of error, by an improper iicensg in the use of the writ, which has (its own appropriate form, and ought not to be exposed to alterations by a party, there is a like averment.- These aré, át best, only ex parte suggestions, out of place, and not in a shape to. be traversed or denied. The party against whom they are made, has no knowledge of them, nor opportunity to controvert thém.
    The averment, however, if admitted, is insufficient. The disability alleged is infancy.- The infancy is alleged only as to one of several complainants. The others were of full age. It is settled, as will be seen presently, that this will not do.’
    On these facts, the law is. quite clear.' The case was never regularly before this Court. The Court had no jurisdiction ; and the whole proceeding hef&is a nullity.
    1. The case was brought here by writ of error. A writ of error in such a case is not authorized by law. - The Sari Pedro, 2 Wheat. 132.
    2. If brought by appeal, it must have been dismissed as unwarranted by law. For,
    1. No security was given upon appeal; it was upon the writ .of error. Without security, there can be no appeal. The act of 1803 requires it as well as upon a writ of error. 2 Wheat. Í32. . .
    2. No citation was served, nor notice given, which are expressly required by act of 1789, upon writs of error, 1 Story’s Laws, 60. § 22; and in appeals, by act of 1803. 2 Story’s Laws, 905, § 2. The only exception is, where the appeal is as at the same term when the decree is given. Here, the decree was not at the same term, nor in term time. The want of it makes the proceeding void. If service of process, or notice be necessary to enable a Court to exercise jurisdiction in a case, without it, the proceeding is a nullity. Lessee of Walden v. Craig’s heirs, 14 Peters, 147.
    3. The appeal was never allowed. This is necessary. Dos Hermanos, 10 Wheat. 306. If applied for, there would have been opportunity to give notice and settle facts. No opportunity was afforded.
    4. The appeal (if any) was not in time. The gratuitous and irregular allegation in the writ of error and petition, if admitted, will not avail. The disability of one of the complainants will not prevent the bar. .The whole will be barred, unless the whole be under disability. Marsteller v. M‘Clean, 7 Craneh, 156. Perry v. Jackson, 4 Term Rep. 516. 3 Murphy, 577.
    In reply to the argument, that the application was too late, after the term when the decree was made, Mr. Sergeant referred to Bank of Commonwealth v. Wistar, 3 Peters, 431. ■ Sibbald v. The United States, 12 Peters, 488.
    The present case, he argued,'.was far stronger than either of those just cited; for he had shown that the Court had no jurisdiction, and that the decree ..was a nullity. The Court was led into an error by the omission to print a material part, of the record, and thus to give an ex parte hearing in a case never before them. The appellee was left in ignorance that any thing which concerned him was pending here ; and came at the first opportunity afforded him, to ask that the error may be corrected.
    Mr. Key, against the motion.
    The appellee cannot, justly, complain of the proceedings of this Court at January term, 1840. The whole matter which could be alleged in defence was before the Court,-in the answer to the bill of the complainants in the Circuit Court of Alabama. The case exhibited wag. that of an executor accepting the trusts declared by the will, receiving-a large amount of the estate of the testator, and leaving lo his co.-executor to appropriate the money he had received, on Khis personal responsibility for the conduct of. the co-executor. If, by the failure of the co-executor.to perform the duties imposed on him, the cestui qui trusts are injured, the loss must be sustained by the person who confided in him. No appearance of the appellee before the Court can change this position of the case; and where by the decree of the Court full justice has been done, according to law, the Court will not interfere.
    Nor can the matters- presented in support of the motion be inquired into. The case has passed into judgment; and is no longer before thé Court, or in the power of the Court. Cited, Jackson v. Ashton, 10 Peters, 482.
    As to the bar of the claims of the, appellants, interposed by the statute of limitations; Mr. Key argued that, as in this case, there was a minority, the statute would not affect all the parties. The true construction w;ould be, as the statute did not operate on all, it should operate on none.
   Mr. Chief Justice Taney

delivered the opinion, of the Court.

This case was brought here by an appeal from , the decree of the Circuit Court for the Southern District of Alabama. . It was argued at the last term, on the part of the appellants $ and the decree of- the Circuit Court reversed. The argument and decision are reported in 14 Peters, 166.

Anderson Crenshaw, against whom the judgment of this Court was given, never appeared to the appeal; but the argument was heard in behalf of the appellants, and the decree of the Circuit Court reversed, under the belief that a citation had been regularly issued, and served upon him. It now appears, that an accidental circumstance led the Court into error, in this respect; and that Crenshaw was not cited to appear in the manner required by the act of Congress.

A motion has been made, at the present term, on behalf of Crenshaw, to set aside and .annul the judgment and- decree of this Court; and also .to dismiss the appeal.

As there is no case now pending here, between these parties, there is nothing upon which an order to dismiss woidd operate. But upon the facts above stated, it is very clear that the case was not legally before us at the last term; and the decree then pronounced must therefore be declared null and. void, and the mandate directed to the Circuit Court must be revoked. An order will, accordingly be issued from this Court.

On consideration of the motion made by Mr. Sergeant, on a prior day of the present term of this Court, to wit: on Monday, the 11th ultimo, and of the arguments of counsel thereupon had, as well against as in support of said motion: It is now here ordered, adjudged,'and decreed, that tfie judgment and decree of this Court, rendered in the above entitled cause, on Wednesday, the 26th day of February, A. I). 1840, be, and the same is hereby, declared utterly mill and void; and that the mandate of this Court directed to the judges of the said Circuit Court, in this cause, be, and the same is hereby revoked. And it is also now here further ordered.that-the clerk of this Codrtdo forthwith send to the judges of the Circuit Court of the United States for the Southern District of Alabama, a copy of this order of the Court, under the seal of this Court, together with a copy of the opinion of this Court, pronounced this day.


author: Mr. Justice M‘Kinley

text:
    Archibald K. Smith, Plaintiff in error, v. Alfred Clapp, Defendant in error.
    By a statute of Alabama, it is enacted that every joint promissory note shall be deemed and construed to have the same effect in law as a joint and several promissory note; and whenever a writ shall issue against any two or more joint and several drawers of a promissory note, it shall be lawful, at any time after the return of the writ, to discontinue such action against any one or more of the defendants, oh whom the writ shall not have been executed; and to proceed to judgment against the others.
    This statute converts a joint into a several promise; and enables the holder to maintain an action against any one of the makers.
    A defendant having appeared and pleaded to the action, and at the trial having withdrawn his plea, the Supreme Court cannot take notice of any matter of abatement.'in the writ or declaration. Where the vyrit had stated both of the defendants to be citizens of another state than that of which the plaintiff was a citizen, and one of the defendants has been returned not found by the marshal, under the laws of Alabama, it is not necessary, in the declaration, to aver the citizenship of the absent defendant.
    By the statutes of Alabama, promissory notes may be . ssigned by endorsement; and the assignee may maintain an action in his own name on such notes. By the act of 1833, the same rights are given to the holder of notes given to a certain person or bearer, to a fictitious person, or to bearer only; and the assignment of such notes by delivery only, authorizes a suit by the holder in his own name. The hplder of a note payable to A. B. or bearer, may, to avail hitnself of these provisions of the law, call himself an assignee of the note from A. B.; but the holder of such a note payable to the bearer, is not an assignee within the provisions of the judiciary act of 1789.
    If any error exists in the calculation of interest in a judgment on a note, on which suit has been brought, the Court before whom the suit was brought, may, by the laws, of Alabama, correct the error.
    ERROR to the Circuit Court of the United States for the Southern District of Alabama.
    This suit was instituted in the Circuit Court by the defendant in error, against Archibald K. Smith, the plaintiff, and'Neil Munn, its the makers of a promissory note, payable to John Barge or bearer. The note was signed by A. K. Smith and Neil Munn. The writ of capias, by which the action was brought, stated Archibald K. Smith and Neil Munn to be citizens of'the state, of Alabama ; and that Alfred Clapp was a citizen of the state of New York.
    The marshal returned, “ Executed the writ on A. K. Clapp, Neil Munn not found.” The declaration was filed against A. K. Smith, and stated that Neil Munn was not found.
    A judgment was rendered against A. K. Smith, by the Circuit-Court, apd this writ of error was prosecuted by him.
    The case was argued by Mr. Key, for the plaintiff; and by Mr. Test, for the defendant.
    For the plaintiff it was contended,
    1. That Barge, the payee, (through whom, as assignee, tne plaintiff below claimed,) not being shown competent to sue in the Circuit Court, the 11th section of the judiciary act prohibited the plaintiff from suing in that Court.
    2. The judgment is for more than the amount óf the note and interest.,
    Mr. Key contended that it was necessary to aver that John Barge, to whom the note was given, was not a. citizen of Alabama. If this is not done, the Circuit Court had no jurisdiction of the cause. Cited, 3 Dali. 382. 4 Dali. 8. 4 Cranch, 46. 9 Wheat. 537.
    The plaintiff must show that he claims through John Barge^a citizen of another, state, or he cannot sue. The noté is drawn to John Barge or bearer. The suit is brought, as the assignee of Barge.
    There is another objection. It should-have been averred that Neil Munn, who was not taken by the marshal, was not a citizen of Alabama. It is not sufficient that the citizenship is stated in the writ; it should be averred in the declaration,so that it could have been denied in the pleadings. 8 Peters, 148.
    It is insisted that the judgment is for more than the amount of the note apd interest ; and. this is error.
    Mr. Test, for the defendant in error, said, as to the first error assigned, that'the note was payable to Barge or bearer, and was assigned to Clapp: who appears to be competent to sue in the Circuit Court; and it was not necessary to show that Barge was competent. See Bullard v. Bell, 1 Mason’s Reports, 251. Bank of Kentucky, v. Wistar, 2 Peters, 318.
    As to the second error. It is a matter of fact, and. a mere clerical error, which the defendant ought to have moved the Court below to correct. It is not admitted that the error exists. The interest in Alabama, as allowed by statute, is eight per cent.
    This case was brought merely for the purpose of delay; and defendant prays to be allowed the ten per cent, damages.
   Mr. Justice M‘Kinley

delivered the opinion of the Court.

This is a writ of error to the Circuit Coúrt for the Southern district of Alabama. The defendant in error, who was plaintiff in the Court below, sued out a capias, ad respondendum against the plaintiff in error, and one Neill Munn, directed to the marshal of the district; w;ho returned that he had executed it upon Smith, and that Munn was not found. Whereupon, the plaintiff discontinued the suit against Munn, and filed his declaration, and proceeded to judgment against Smith. When the cause wás called for trial, Smith withdrew his plea, previously filed, and suffered judgment to pass' against him by nil dicit..

To reverse this judgment, the plaintiff in error relies upon the following grounds: First, There is no averment in the declaration that Munn was a citizen of Alabama. Second, It is not shown that John Barge, to whom the note was payable., was competent, under the eleventh section of the judiciary act of 1789, to maintain a suit in his own name: Third, The judgment is for more than the amount of the note and interest.

The first objection proceeds on the ground that the note and action being joint, the Court could not entertain jurisdiction of one defendant, unless it were shown that the other was also a citizen of Alabama. By a statute of Alabama, it is enacted that every joint promissory note shall be deemed and construed to have the same effect, in law, as a joint and several promissory note. And whenever a writ shall issue against any two or more, joint, or joint and several drawers of a promissory note, it shall be lawful at any time, after the return of the writ, to discontinue such action.against any one or more of the defendants on whom the writ shall not have been executed; and to proceed to judgment against the others. Akins’ Digest, 267, 268.

This statute converts a joint into a several promisspry note; and enables the holder to maintain an action against any one or more of the makers. No doubt can be entertained, therefore, of the right of the plaintiff to have maintained the suit against Smith alone. And the joint action having been severed, according to.the statute, by the • return of thé marshal, there can be as little doubt of this right to proceed against Smith,, as though Munn had nót been named in the writ. In the writ it "was stated.that both Smith and Munn were citizens ofAlabama, and had flip writ been served on both, the plaintiff might have declared against both, without averring their citizenship; and unless the defendants had pleaded the variance between the writ and declaration, in abatement, he could not afterwards take’advantage of it, in arrest of judgment; nor assign it for error. The defendant, Smith, having appeared, and pleaded to the action, and at the trial having withdrawn his plea, this Court can take no notice of any matter of abatement in the writ, or declaration. And, therefore, if it had been necessary to aver the citizenship of Munn,-who could no longer be considered a party to the suit, the fact of his being a citizen of the state of Alabama, appearing in-the'writ is sufficient for all purposes of jurisdiction in this Court. Bradstreet v. Thomas, 12 Peters, 60.

' xThe only question arising under the second ground of objection is, whether the assignment of the note was by endorsement, or by delivery; and this depends entirely upon the, statute law of Alabama. By the act of 1812, all' bonds, obligations, bills, single, and promissory notes maybe assigned by endorsement; and the assignee may maintain a suit therepn in his own name. Akins’ Digest, 328, sect. 6. This section contains other provisions which are not material to this case. ■ By the act of 1833, all the provisions of the above recited section are extended to promissory notes made payable to a certain person, or bearer, to a fictitious person-or bearer, or to a bearer only 5 but it is provided,'that nothing therein contained shall prevent the assignment of such ■ note by delivery merely, so as to authorize' the assignee to sue in his own name. Akins’ Digest, 330, sec. 18.

The avernient in the declaration is, that the said John Barge, to whom, or to the bearer of said promissory noté, payment of the said sum of money, therein specified, was to be made, after the making of the said promissory note, and before the payment of the said sum of money therein specified, to wit, .on the 1st day of December, 1836, at the Southern district of Alabama, aforesaid, duly assigned over and delivered the said promissory note to the said plaintiff, who then and there became bearer arid was and still is the bearer thereof, and entitled to demand and receive said sum of money, &c. It is obvious that this assignment was by delivery merely, and not by ehdorsement, which must be in writing. The intention of the averment is to show that the plaintiff was within the proviso of the act, and had a right to sue in his own name. It is clear that he sues in- the-character of bearer of the',note; and consequently he is. not an assignee within the meaning of the -eleventh section of the judiciary act of 1789: Bank of the Commonwealth of Kentucky v. Wistar, 2 Peters, 318.

If any mistake occurred in the -Court below, in calculating the interest due. on the note, that is a proper subject of correction in that Court. By a statute of Alabama, the Court of original jurisdiction may correct any clerical error or misprision in the calculation of interest,.or other mistake of the clerk, at anytime within three years from the rendition of the judgment. Akins' Digest, 266. The note in this case is no part of the record; this Court cannot judicially know, therefore, when the interest commenced running: the third ground relied on by the plaintiff here, ought, therefore; to have been brought before the Court below, and may yét be brought before it; and if it shall there appear that any mistake has been made, it can be corrected.

The judgment of the Circuit Court is affirmed, with costs.