JAMES GALLOWAY, JUNIOR, APPELLANT V. HENRY R. FINLEY AND DAVID BARR, APPELLEES.

C. B., a man resident in Ohio, as an officer in the Virginia line, during the revolu tionary war, was entitled to a quantity of military land in the state of Ohio. Warrants for the land were issued to him, and were surveyed, located, and patented. In 1835, the heirs of C. B. sold part of these lands to G., who went into possession of them. He soon afterwards discovered that the patent for these lands issued after the decease of C. B., and was consequently void. The land had been recognised for forty years, as the property of C. B. and his heirs, and the title in them deemed valid. G., on making a discovery of the defects in the patent, entered and located the land for himself. Held, that G. could not be permitted to avail himself of this defect in the title, while standing in the relation of a purchaser, to defeat the agreement to purchase made with the heirs of C. B. Under the most favourable circumstances, he could only have it reformed; and the amount advanced to perfect the title, deducted from the unpaid purchase money. Where the purchaser, instead of claiming from his vendors the cost of entering and surveying the lands, the defect in the title to which had become known to him through his purchase, claims to hold the land as his own, under the title acquired by his entry and survey; and asks a court of equity to rescind the contract of purchase; a court of equity will decline giving him its aid to obtain the expenses of the warrants and surveys taken out by him for the land, and set up against the rights of his vendors.

It is an established rule in equity, that when the vendor of land has not the power to, make a title, the vendee may, before the time of performance, enjoin the pay. ment of the purchase money, until the ability to comply with the agreement is shown; but then the court will give a reasonable time to procure the title, if it appears probable that it may be procured.

In reforming a contract for the sale of lands, equity treats the purchaser as a trustee for the vendor, because he holds under the vendor; and acts done to benefit the title by the vendor, when in possession of the lands, enure to the benefit of him under whom the possession was obtained, and through whom the knowledge that a defect in the title existed. was derived. The vendor and vendee shared in the relation of landlord and tenant; the vendee cannot disavow the vendor's title. A patent for lands issued after the decease of the patentee, passes no title to the lands; there must be a grantee before the grant can take effect. The acts of congress of 1807, and the subsequent acts relative to the titles to military lands, were intended to remedy any defects in the patenting the lands in the name of the warrantee, who might have been deceased at the time of the emanation of the patent; and to secure the title to the lands to the heirs of the patentee. The statute is general, including by name all grants, not distinguishing between void and valid; and the plainest rules of propriety and justice, require that the courts should not introduce an exception, the legislature having made none.

APPEAL from the circuit court of the United States, for the western district of Pennsylvania, in the third circuit.

[Galloway v. Finley et al.]

The appellant filed his bill on the 19th of October, 1835, stating, that on the 11th of March, 1835, he entered into an article of agreement with David Barr, acting as attorney for his wife, Elizabeth Julia Ann, who thereby became a party to the same. The agreement stated that Charles Bradford, late of Pennsylvania, obtained for his services as an officer in the Virginia continental line, a land warrant, No. 4467, for 2666 acres of land, which was entered, surveyed, and patented in three surveys in the Virginia military district, in Green and Brown counties, in the state of Ohio. That Charles Bradford died intestate, leaving four children, two of whom died without issue, and intestate, leaving Henry R. Finley, and Elizabeth Julia Ann, his only surviving heirs. Elizabeth Julia Ann married John Finley, and died, leaving two children, Henry, and Elizabeth Julia Ann, who are the only heirs of their mother, and are entitled to one undivided half of the said military land. That Henry R. Finley, and Elizabeth Julia Ann, the wife of David Barr, sold to the complainant an undivided moiety of the two surveys in Green county, in consideration of an agreement to pay eight thousand dollars; of which one thousand dollars was paid, and notes given to Henry R. Finley, and to the wife of David Barr, for the residue due, payable in equal instalments, in one, two, and three years; viz., on the first of January, 1837, 1838, 1839. The defendants, and the wife of Barr, covenanted that they were the persons they represented themselves to be, and that they were seised and possessed of a good legal title to the lands they sold to the complainant; and bound themselves, their heirs,, &c., to make him, his heirs, &c., a good title in fee simple, as soon as he should pay the purchase money. That defendants asserted they had in possession the evidences of the title of defendant, Finley, and the wife of Barr, to the land; and that a letter of attorney had been executed and acknowledged by Barr's wife to himself, authorizing him to sell and convey her title in the land; that they had then just discovered that they had not brought these papers with them, and to induce appellant to close the contract, promised to send him the papers as soon as they should return home: confiding in the existence of the papers, and the promise to forward them to him, he concluded the agreement. The complainant says he paid down the one thousand dollars, and one hundred and four dollars; the latter credited on the last note. That since the date of the contract, Barr's wife has died intestate, and without issue, being a minor at her death. That defendants have not proVOL. XII.-2 L

[Galloway v. Finley et al.]

duced their title papers, nor letter of attorney. That defendants cannot perform their contract, nor make a good title to the land, because Charles Bradford died in 1789; and the lands were entered in his name, on the 19th of April, 1793; and the tract of one thousand acres was surveyed the 14th of February, 1794: and the survey of the tract of twelve hundred acres, was made the 24th of March, 1794: the entries and surveys being made about four years after his death.

The complainant, averring his readiness to perform, prays that the article of agreement may be deemed annulled and cancelled; that the money be refunded, with interest, and the notes enjoined, and the collection restrained; and for general relief.

The defendants, Finley and Barr, on the 19th of January, 1836, answered jointly, admitting the contract as stated in the bill, and that H. R. Finley, and Elizabeth Julia Ann Barr, wife of David Barr, were the children, and sole heirs of Elizabeth Julia Ann Finley, daughter of Charles Bradford, and entitled, as such, to a moiety of the lands in.question; and that they told the appellant they had, in Pennsylvania, evidence that defendant, Finley, and the wife of defendant, Barr, were the heirs of Elizabeth Julia Ann Finley; all which they assert to be true, and can prove. The defendants deny that they represented they had in possession any title papers, or any evidence except that which would prove the heirship of defendants, Finley, and the wife of Barr. On the contrary, they told the complainant they had no title papers, and that they had only recently been informed of the existence of the land; and that the defendant, Finley, and the wife of Barr, had any title thereto. The complainant told defendants he had long known that the heirs of Elizabeth Julia Ann Finley were entitled to one undivided half of said lands; that he had a record of their names; had made inquiries for them: that he had been anxious to buy the interest of defendant, Finley, in the lands; as he, the complainant, had sold the said lands, and bound himself to give good titles, and he feared some other person would purchase the interest of the defendant, Finley, and his sister, and give him trouble. The complainant stated at the time, that he knew all about the title; and that if defendant, Finley, and his sister, Elizabeth Julia Ann Barr, were the children of Mrs. Finley, he was satisfied as to their right to the lands. Defendants admit that they agreed to forward to appellant evidence that defendant, Finley, and his sister, were children of Mrs. Finley, and meant to do so; but the death of

[Galloway v. Finley et al.]

Mrs. Barr, caused it to be negleeted. The defendant, Finley, denies representing to appellant that Mrs. Barr had executed a letter of attorney to her husband, and that defendants had only then discovered that it had been left behind: he admits that he might have told appellant that Mrs. Barr was willing that her husband should sell her interest. The defendant, Barr, admits he represented that his wife was willing he should sell her interest; and that a letter of attorney had been prepared to that effect, and left behind; but he denies rècollection of saying it had been executed and acknowledged, and that he supposed he had the same with him, and had then only discovered he had left it behind. He admits he promised to forward the power, but the death of his wife prevented this being done.

The defendants deny intention or attempt to induce appellant to enter into contract, and pay his money thereon, by fraudulent representations. They admit the payment of one thousand dollars, and one hundred and four dollars, as stated in the bill; and that Mrs. Barr died a minor, without issue and intestate; but aver that her death did not affect their right to comply with the contract, as the interest of Mrs. Barr vested at her death in defendant, Finley; who has been, and is willing to fulfil it. They deny all fraud and combination, and aver and will prove, that they made the contract in perfect good faith, believing that defendant, Finley, and Mrs. Barr had a legal right to a moiety of the land: the knowledge of their right chiefly came from appellant. But they deny that at the time of making the contract, they had any knowledge of the date of the entry or survey, or of the date of C. Bradford's death: they allege, the first intimation. they had that the land was entered and surveyed after his death, was derived from the bill. They admit, from information, &c. since the bill was filed, that they believe the said lands were entered and surveyed at the times mentioned in the bill, and since the death of Bradford; who died about the time mentioned in the bill. The defendant, Finley, avers, that as soon as he was apprized of the facts mentioned in the bill, as to the date of entry and survey, he made inquiries as to the facts, and being satisfied that they were true as alleged in the bill, he proceeded without delay to the surveyor's office in Chillicothe, to get information to take steps to procure an entry of said lands, that he might fulfil said contract; which he is ready and anxious to comply with. But he was surprised when he ascertained that the appellant, a few days before, on the 26th September, 1835, fraudulently, and as defendant alleges, for the purpose of putting it out of

[Galloway v. Finley et al.]

the power of defendants to comply with their contract, and to defraud the defendant, Finley, out of his lands, had entered the same lands under surveys No. 2277 and No. 2278, mentioned in the agreement; as certified copies of the entries made by appellant, and made part of the answer, will prove.

The defendants aver, that the complainant, having made these entries to further his designs, immediately filed this bill without intimating objections to their title; although defendant, Finley, had met and conversed with him at Pittsburgh, after the entries were made, and before the bill was filed. The defendants allege, and will prove that the lands were duly entered, surveyed, and patented in the name of Charles Bradford, by virtue of which the defendant, Finley, and his said sister, at the date of contract were, as the heirs of Mrs. Finley, deceased, daughter of Charles Bradford, deceased, entitled equitably and justly to the undivided half of said lands, and had good right to sell and convey. By the death of Mrs. Barr, a minor, without issue, her right vested in the defendant, Finley, as sole surviving heir of Mrs. Finley; and being so entitled, he avers his power, readiness, and willingness to make a perfect title to the appellant for an undivided moiety of the lands, on the fulfilment of the contract by him. The defendants aver that any title which the appellant may have acquired by his entry of September 26th, 1835, shall be taken to enure to the benefit of them, for whom he holds the 'lands in trust for fulfilment of the agreement; and they pray that the bill may be dismissed, &c.

In February 13th, 1837, the appellant filed his amended bill, stating that besides the money he had paid defendants on account of the contract, he released to them his interest to an undivided half of survey No. 4456 for 4663 acres, for the consideration of 1 ve hundred dollars. That when he made the contract with the defendants, he believed that they had a perfect title to the lands they sold him; was ignorant that the entries, &c. had been made in the name of a man not in being; and that it was not for a considerable time afterwards he came to a knowledge that the land was vacant, and that the defendants had no power to make him a title, and that the lands were subject to entry by a holder of a Virginia military warrant. He had previously purchased an undivi ed half of the same lands, and paid a large consideration. Deeming it right to protect his interest in premises, on the 26th September, 1835, he caused entries No. 13,696 for 1208 acres, and No. 13,697 for 1000 acres, to be ma e; and on the same day caused surveys to be made and returned, which were