Henry Brush v. John Ware

• Decision Date: 01 January 1841
• Citation: 15 Pet. 93,40 U.S. 93,10 L.Ed. 672
• Parties: HENRY BRUSH, Appellant, v. JOHN H. WARE and others, Appellees
• Court: U.S. Supreme Court

40 U.S. 93

15 Pet. 93

10 L.Ed. 672

HENRY BRUSH, Appellant, v. JOHN H. WARE and others, Appellees.

January Term, 1841

APPEAL from the Circuit Court of Ohio. 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 4000 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 having been entered in the circuit court in favor 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 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 1000 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 23d of January 1818.

The bill of the appellees asserted, that Henry Brush was a purchaser with notice of the superior title of the heirs of John Hockaday and prayed that he might, 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 said, the land in controversy was granted to him, by patents, dated January 23d, 1818; that he had no recollection or belief that he ever saw the warrant, entry or survey, or copies of either; that he was an innocent purchaser for a valuable cousideration: he denied all notice of complainant's claim, at or before the emanation of the patents, and all knowledge of any fraud; he said, he believed that the purchase by Ladd was fair, and for a valuable consideration; that he had no knowledge what the will of Hockaday contained: he said, he has been in possession, under claim of title, since 1808, and had made lasting and valuable improvements; and insisted, that complainants ought to be barred by the statute of limitations; and that at any rate, he ought to be paid for all improvements. And by his amended answer, he claimed compensation for taxes paid, and for an allowance for a locator's share; for expenses in perfecting the title; and claimed all the surplus land in the survey.

The case was argued by Mason, for the appellant; no counsel appeared for the appellees.

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; 'and upon this principle, that all men who stand on equal ground, shall have equal equity; because the court cannot do anything 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, cited in note to Mitf. Ch. (3d. Am. ed.) 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 apprised 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 conusant 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 being controverted. 2 Sugd. Vend. 292; Newl. Cont. 511. In Dexter v. Harris, 2 Mason 536, Mr. Justice STORY, says: 'There is no such principle of law, as that what is matter of recerd 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. Mann, 2 Sumn. 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. 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; nor does it apply to the purchaser of a military land-warrant, issued by the state of Virginia; nor to 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 transferrible by assignment; and ought to pass, like commercial paper, into the hands of a bon a 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 pre-requisite has been performed,' and that these rules have been complied with on the part of the grantor. The legal presumption is in favor of the validity of every grant issued in the forms prescribed by law.' These presumptions are not understood to exist in favor 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. Liter, 8 Cranch 247-8. Officers are appointed and 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 favor 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 defects may, 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 purchaser, for omitting to search for defects in the origin of his title, in...