Morrison v. Campbell
| Decision Date | 31 January 1824 |
| Citation | 23 Va. 206 |
| Parties | Morrison v. Campbell and Others |
| Court | Virginia Supreme Court |
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David Duncan, in his life-time, was entitled to 21,000 acres of land, in Greenbrier county, by entries and surveys, made for him by the surveyor of the said county, in the year 1787. Duncan died in 1791, leaving Wallace and Kirkpatrick, his executors, and authorizing them, by his will, to sell and dispose of all his estate, real and personal. James Morrison, the appellant, in the year 1806, purchased the said surveys of the said Wallace and Kirkpatrick, executors as aforesaid. In the year 1796, the entries of the said land were assigned to a certain James Welch, by a paper purporting to be executed by David Duncan, and expressing a consideration of $ 5,000 for the said assignment. Welch conveyed the said lands, by deed of trust, in 1797, to Hicks and Campbell, to secure a debt of $ 3,933 I/3. The deed recites, " that the said surveys were assigned to the said James Welch by the said David Duncan, and are returned into the office of the Register; copies whereof are delivered to the said Hicks and Campbell." The money not being paid when it became due, the lands were sold, and Hicks and Campbell, and James Currie became the purchasers. William Currie was afterwards admitted by Hicks and Campbell to a share in the said lands; and a patent was then issued to Hicks and Campbell. James Currie, and William Currie.
James Morrison then filed his bill in the Richmond Chancery Court, alledging, that he had become the lawful proprietor of the said surveys, by purchase from Wallace and Kirkpatrick, executors of Duncan, as aforesaid: that, the assignment of the entries to James Welch was forged, and not the assignment of David Duncan, the proprietor of the said surveys: that, the consideration of $ 5,000 was merely nominal: that, he has done nothing to impair his rights, which are superior, in law and equity, to rights derived from the fraudulent assignment aforesaid; he, therefore, prays, that Robert Campbell, Robert Gordon, and Janetta, his wife, and James Currie; which said James and Janetta are the heirs at law of James Currie deceased; Robert Hicks, Nathan S. Dalland, and Sally, his wife, and John Hicks; which said Robert, Sally, and John, are the heirs of John Hicks, deceased; George Wallace and A. Kirkpatrick, citizens and inhabitants of the State of Pennsylvania, and executors of David Duncan, deceased, Charles Blagrove, Register of the Land Office, and James Welch, may be made defendants; that Robert Campbell and the representatives of James Currie and John Hicks may declare whether they claim the land in question under an assignment of the surveys made by James Welch; that they may set forth what were the terms of the assignment from Welch to Hicks, Campbell and Currie, and what consideration passed for said assignment; that Wallace and Kirkpatrick may say whether they have not, under the authority conferred on them by the will of David Duncan, deceased, sold and assigned over to the complainant, all the right and title of the said Duncan, in and to the said surveys of the aforesaid 21,000 acres of land; that the said James Welch may set forth, particularly, of whom he obtained an assignment of the said surveys, the consideration for which they were assigned, who were present, & c.; that the said Welch disclose all the circumstances of the said assignments; that the said Blagrove, Register of the Land Office, do exhibit copies of the surveys and grants, and the assignments on the former; that the said patents be vacated by a decree of the Court; that new grants be directed to be issued to the complainant, or if that should not be regular, that Campbell, the representatives of James Currie and John Hicks, be decreed to release and assign over all right and title they may claim in said lands to the complainant.
The answer of Robert Campbell alledges the deed of trust executed by Welch, to secure a debt due to Hicks and Campbell, and conveying the land in question; that the original surveys and assignments were regularly made, as far as the defendant knows or believes, and are now in the Register's office; that the debt of the said Welch not being paid, the land was sold from time to time, when the defendant, John Hicks and James Currie became the purchasers; that the defendant and his late partner, John Hicks, permitted William Currie to be interested with them to the amount of one-third of their two-third parts of the said land; that no patents having issued, at the time of the said deed of trust, the said Welch assigned the said surveys to the said Hicks and the defendant, and they directed patents to issue to Hicks, Campbell, William Currie and James Currie, in their proper proportions; and the patents were issued accordingly, on the 20th day of November, 1797; that the said patentees and their heirs are innocent purchasers for a valuable consideration actually paid, without notice of any adverse claim, until after they had obtained the legal title; that he does not admit that the assignment to Welch was fraudulent, but he insists that it was the genuine assignment of David Duncan; that the complainant, having purchased when the patentees were in possession of the land, and had obtained the legal title as fair purchasers, he was a purchaser of a pretensed title, which is prohibited by law, & c.
Robert Gordon and Janetta, his wife, and James Currie, answered, that it is true that the said Janetta and James are the heirs of James Currie, deceased, and children and legal representatives of William Currie, deceased; that as to the other allegations of the bill, they know nothing, of their own knowledge, and call for proof thereof; and that they are satisfied that both James and William Currie, deceased, were innocent purchasers for valuable consideration actually paid, & c.
The suit abated as to Wallace, by his death; and publication was made against the children [*] and heirs of David Duncan, deceased, Kirkpatrick, Welch, Dalland and wife, as absent defendants.
A. Kirkpatrick, surviving executor of Duncan, filed his answer, stating, that he admits that he and G. Wallace, since deceased, in pursuance of the will of D. Duncan, sold to James Morrison, in the year 1816, the surveys of land in the bill mentioned, and all the said Duncan's rights therein, for a valuable consideration, and delivered to the said Morrison certain original papers, connected with the title of the said Duncan; that neither David Duncan, in his life-time, nor his executors, since his death, have ever transferred the said Duncan's right in said lands, to any other person than the complainant, James Morrison; that the defendant and his co-executor, Wallace, were both ignorant of the steps taken by Hicks and Campbell, or any other of the defendants, in obtaining patents in these cases, their residence being in Pittsburg, in Pennsylvania; and he hopes that neither the representatives of D. Duncan, nor the complainant, may be injured by the measures resorted to by Campbell and others; that he believes the assignment to Welch was fraudulent; and he is willing that the land in question should be decreed to the complainant.
Dalland and wife filed their answer, disclaiming any knowledge of the transaction. John Hicks, by his guardian, did the same.
Among the exhibits is a paper purporting to be the will of David Duncan, which empowers his executors to sell and dispose of all his real and personal estate. He appointed four executors, two of whom were Wallace and Kirkpatrick above-mentioned. This will was never recorded in Virginia; but, there is a certificate of Samuel Jones, who styles himself Register, that the instrument exhibited is a true copy of the original, recorded in the office for recording of wills in Alleghany county, Pennsylvania.
David Steel deposed, that David Duncan was a tavern-keeper in Pittsburg, at the time of his death, and for a number of years before; and that some time after his death, the deponent was informed that a certain James Welch had fraudulently obtained a conveyance for the lands in question, from a certain David Duncan, who sometimes traded up and down the Ohio; and this David Duncan was a different man from the David Duncan of Pittsburg aforesaid; that this person told the deponent that he had no entries or surveys in Greenbrier county; that Welch was a trading and speculating man, of bad reputation, & c.
Another witness proved, that there was a man named David Duncan, who was a different person from the one who lived in Pittsburg.
There was other evidence, which is fully stated in Judge Green's opinion.
The Chancellor dismissed the bill, and an appeal was allowed by the Court of Appeals.
Call Nicholas and Stanard, for the appellant.
Hay and Wickham, for the appellee.
It was contended for the appellant, that the patent was void, and not merely voidable, and therefore raises no bar to the claim of the appellant: 1. It is void, because the law requires the patent to issue to the locater or his assignee. 1 Rev. Code, (Pleasants's edit.) p. 344, § 3. The assignment was not in due form, because entries are not assignable by law. The act speaks of surveys only. Ibid. p. 147, § 40. The act also requires a recital of the assignment in the grant. Ibid. 148, § 44. Therefore, the recital was false as to part of the assignment, which annuls the patent. 5 Co. Rep. Berwick's Case; 2 Roll. Rep. 274, 359. The assignment was forged, and crime cannot be the foundation of right. Wilson v. Spencer, 1 Ran. Rep. 76; Cutting v. Carter, 5 Munf. Rep.
2. A scire facias was not necessary to vacate the patent,...
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