Burtis Ringo, James Elliott, John Collins, John Elliott, James Lawrence, Thomas Watson, Athey Rowe, George Muse, Sen and George Muse, Jun Appellants v. Charles Binns and Elijah Hixon, Stephen Hixon, Noah Hixon, John Hixon, William Hixon and Timothy Hixon, Heirs of Timothy Hixon Deceased
| Decision Date | 01 January 1836 |
| Parties | BURTIS RINGO, JAMES ELLIOTT, JOHN COLLINS, JOHN ELLIOTT, JAMES LAWRENCE, THOMAS WATSON, ATHEY ROWE, GEORGE MUSE, SEN. AND GEORGE MUSE, JUN., APPELLANTS v. CHARLES BINNS AND ELIJAH HIXON, STEPHEN HIXON, NOAH HIXON, JOHN HIXON, WILLIAM HIXON AND TIMOTHY HIXON, HEIRS OF TIMOTHY HIXON DECEASED |
| Court | U.S. Supreme Court |
ON appeal from the circuit court of the United States for the district of Kentucky.
The facts, as stated in the opinion of the court, were the following:
The object of this appeal is to reverse the decree of the circuit court, by which the appellants were ordered to convey to the appellees, by deeds of release, with covenants of warranty against themselves and their heirs, and those claiming under them, all the right, title, interest and claim which they respectively have to lands embraced by a patent of two thousand acres to Charles Binns, Jun. and the heirs of Timothy Hixon, and their heirs, dated the 16th of October 1824.
It appears by the proofs in the cause, that a survey of two thousand acres was made on Indian creek, alias Fox's run, or Mason run, Henry county, Kentucky, on the 20th of November 1797, for John Alexander Binns and Charles Binns, by virtue of an entry made the 5th of August 1783. The original survey, by accident, or from the negligence of an agent of the Binns's, to whom it had been sent for such purpose, had never been registered and was lost, but a copy of it was preserved which determined with exactness the locality of the land. It was known as Binns's land in the neighbourhood, and by those owning the contiguous lands. John Alexander Binns transferred his interest in the survey to Husly Bagges, by whom it was sold to Timothy Hixon, the ancestor of Hixon the appellee. Charles Binns, in August 1819, appointed John Littlejohn his agent and attorney, with a power of substitution, to attend to this land and his other land in Kentucky, and Littlejohn associated with himself in such agency Burtis Ringo. Ringo, during the agency, and particularly whilst acting in concert with Littlejohn and William P. Rogers, to procure a division of the land between the appellees, called upon Rogers to ascertain when a division of the land could be decreed. Rogers told him there was a difficulty in the way, as the survey had not been returned to the register's office, and that no patent had ever been issued for the land. He received the information in May or June 1822. On the 10th of July following he wrote to Littlejohn, and after acknowledging that he had been requested to assist in dividing 'Binns's land,' he states that he had been at Frankfort; had made search for Binns's patent; but found the return of the survey had not been made, and that no grant had been issued.
He further says he supposed it would be unnecessary to be at any further trouble about it until Mr Binns had been heard from; as he had written to him, if he had a patent to send it on as soon a possible to Littlejohn or himself: and he requests Littlejohn to send it to him if Littlejohn should receive it. On the same day he wrote a letter of Binns, in which he says, having been requested by Littlejohn to assist him in dividing your lands between you and Mr Hixon's heirs, he had been in the register's office, and finding that the release of the survey had not been made, and that a grant had not been issued, he advises Binns to be at no further expense about it, as it appears no grant can have issued; and that Binns would be wrong if he thought there was no better right on the land. On the 8th of July, two days before he had written to Littlejohn and Binns, Ringo had taken from the register's office warrants for five hundred acres and one hundred acres of land, and caused entries and surveys to be made upon six hundred acres of the original two thousand acre survey, which had been made for John Alexander Binns and Charles Binns. The surveys were made on the 20th of July, and returned to the register's office in his own name on the 24th of August. When charged by Littlejohn with the fraudulent attempt upon the rights of those principals, and told that application had been made to the legislature of Kentucky to authorize a patent to be issued upon the original survey, on behalf of the Binns's, and that his conduct was known to a committee of the legislature, and might be attended with unpleasant consequences to himself; Ringo, to avoid them and to prevent a most notorious disclosure of his fraud, expressed in writing his willingness that such an act should be passed by the legislature, as the complainant had applied for, and gave to Littlejohn, under his hand and seal, a paper, of which the following is a copy:
'BURTIS RINGO, [L. S.].
'Signed and acknowledged in the presence of us, Daniel Fechlen, John Littlejohn.'
Before this instrument was executed by Ringo, Littlejohn agreed to give him one hundred dollars, to reimburse the amount he had expended in procuring the warrants and making the surveys of the six hundred acres; paid him fifty dollars in Commonwealth paper, and gave him a note of hand for fifty dollars.
The legislature of Kentucky acted upon the petition of the complainants; passed an act on the 10th of December 1922, recognizing the survey of the 20th of November 1797, made on the entries of the 5th of August 1783; and the same was carried into a grant in favour of Charles Binns, Jun. and the heirs of Timothy Hixon and their heirs, on the 16th of October 1824. In the mean time Ringo, in violation of his transfer of the entries and survey for six hundred acres to Binns and the heirs of Hixon, took out a patent in his own name. The aforegoing facts were charged in the bill of the complainants; were denied by Ringo in his answers; but were established by proof at the hearing. In the original bill Ringo was the only defendant; but the complainants charge in it that the land had been occupied for ten or twelve years by tenants of Binns. By an amended bill, the tenants, James Elliott, John Collins, John Elliott, James Lawrence, Thomas Watson, Athey Rowe, George Muse, Sen. and George Muse, Jun., were made parties, and stated to be tenants in possession of the land claimed by the defendant; and the complainants make the same prayer against the tenants, as they had against Ringo in the original bill.
The circuit court made the following decree:
The court being now sufficiently advised of and concerning the premises, doth order and decree, that the defendants, Burtis Ringo, James Elliott, John Collins, John Elliott, James Lawrence, Thomas Watson, Athey Rowe, George Muse, Sen. and George Muse, Jun. do, on or before the sixth day of the next term, convey to the complainants, by deeds of release, with covenants of warranty against themselves and their heirs, and those claiming under them, all the right, title, interest and claim, which they respectively have to the lands embraced by the two thousand acre patent to Charles Binns Jun., dated 16th of October 1824; and the writ of haberi facias possessionem is awarded the complainants against the said defendants. And it is further ordered and decreed, that the defendants pay to the complainants their costs herein expended.
The defendants appealed to this court.
The case was argued by Mr French and Mr Underwood, for the appellants; and by Mr Semmes and Mr Coxe, for the appellees.
The counsel for the appellants presented the following points for the consideration of the court.
The counsel for the appellees contend the decree is erroneous, and must be reversed for the following reasons, to wit:
1. The decree has passed against John Collins, who is no party to the record.
2. The court has no power to decree tenants in possession merely to convey. They must either hold the legal title, or an equity to the land, growing out of the asserted title of the appellees. The appellees have shown neither.
3. The circumstances under which Ringo executed his relinquishment, were such that the contract cannot be specifically executed upon him by the chancellor.
1st. Because there was no consideration paid, or agreed to be paid Ringo for his claim. The 100 dollars was to indemnify him for expenses, in procuring his own claim; and not as a consideration for the purchasing it: and for the want of a valuable consideration the chancellor will not decree a specific execution of a contract.
2d. If the 100 dollars shall be considered as payment for his claim, it is wholly inadequate; and the inadequacy of price is an insuperable barrier to a specific execution.
3d. The deed was unfairly and fraudulently obtained by Littlejohn; and for that fraud the chancellor will refuse specific execution of the contract.
5. There is no proof that Elijah Hixon and others, claiming to be the heirs of Timothy Hixon deceased, are his children. Such proof is indispensable; and, for want of it, it does not appear they have any interest whatever in the land. They sue as heirs, and not as devisees; and the allegata et probata must correspond.
Messrs French and Underwood contended, that the equity relied on by the appellees is twofold.
1. They relied upon an entry...
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