Brush v. Ware. 15 P.

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 authorized to exam

ine witnesses in the case, but was bound to act upon the [108] 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 favor 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 warrant 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 the commencement of this suit. All of them, in age, were of tender years, when the warrant was assigned, and 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 an answer both to the [* 109] statute of limitations and the lapse * of time. The statute of Ohio does not run against non-residents of the State;

Brush v. Ware. 15 P.

nor can lapse of time operate against infants, under the circum. stances 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 landoffice 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, executor of John Hockaday, deceased."

By virtue of one of these warrants, four hundred acres of the land in dispute were entered on the 8th of June, 1809, 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 entry. 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 neighborhood 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, or in any respect be defective, it conveys no notice to a subsequent locator nor can it be made good by a subsequent purchaser without notice. Kerr v. Watts, 6 Wheat. 560. But, with these exceptions, the doctrine of notice has been considered applicable to these 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 circum- [ *110 ] stances, 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 v. Ware. 15 P.

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 neither in substance nor in form free from 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 Pet. 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 respondent, under the circumstances, was a bona fide purchaser for a valuable consideration, without notice.

[ * 111 ] 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

Brush v. Ware. 15 P.

were of no value without the warrant.

No principle is better estab lished 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 led 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 his heirs on his decease, and had been assigned to Ladd by his executor, were not sufficient to put the defendant on inquiry? Now, 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 their [112] rights cannot be devested 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 knowl edge, no inconvenience will excuse him from the utmost scrutiny

Brush v. Ware. 15 P.

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, 1799, 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 not 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 [* 113 ] 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 a 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, 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 cas and the one under consideration. An administrator in Ohio has power, unless authorized by the court of common pleas, to sell o 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 case of The Lessee of Willis v. Bucher, 2 Binn. 455, is also in point. The defendant derived his title from William Willis, to