[Galloway v. Finley et al:]

would not be good against one holding the warrant with an assignment, without notice of our purchase. Such an assignment may have been made by Fielding Bradford, or by defendants, at any time since 1789; for from that day to this the warrant has been capable of such transfer, never having been lawfully located, at least so far as we are informed, by the facts in this cause. Surely, then, the Court will not say that complainant was bound, for the benefit of defendants, to run this hazard; and thus, in the event of his failure to make the warrant a good foundation for his entry, lose the whole land which he had fairly bought, leaving himself to be charged with that very "mala fides," towards those who had bought of him under his purchase from Fielding Bradford, to whom it is ad.nitted he had bound himself to make good legal titles. Nor could the defendant enter "an undivided moiety" of the 2200 acres: he must, in order to make the contract of defendants good, have entered the whole; and hence it became necessary to have command of the whole warrant. Defendants only claim one-half; and what disposition may have been made by the other heir of Bradford of his portion, is not shown to the Court, nor is it presumed to be known by complainant. It is unknown to the Court, and so far as we know, to the parties, whether Fielding Bradford is living or dead. His half of the warrant, if he is dead, descended to his heirs at law! Who are they? Where are they? Are they minors or adults? All these stions at once arise when Galloway is asked, in September, 1835 to use this warrant for the purpose of obtaining a clear legal title to this land. If any doubt existed as to his right so to do, or as to the probability of such act being good, to hold the land and obtain a patent without litigation, then it is clear, the Court will not hold that he was bound tó incur such risk. Having bought one undivided half of the 2200 acres, and sold, (as he avers, and as is admitted,) on the faith of that purchase; every obligation of good faith and correct morals impelled him to make sure that which was necessary to enable him to comply with his own engagements.

We insist that no entry

But a patent had issued for the land. could be valid by virtue of the warrant, the use of which caused that patent to issue, till the patent itself was produced and cancelled. We refer the Court to the usage of the general, land office, as laid down in the letter from the Solicitor of that bureau, which we have appended to our argument, showing the difficulties which would have attended an attempt at re-location of the warrant belonging to

[Galloway v. Finley et al.]

Bradford's heirs, by Galloway. If the title was in doubt which was thus to be derived, then the Court will not say that he was under obligation to make any effort to secure the land through that channel. See 2d Hovenden on Frauds, 24-5, and cases there cited.

It becomes a question of primary importance, under this state of things, whether Galloway was bound (after the discovery that defendants had no title to the land, and that it was then vacant,) to notify defendants, by writing to Pennsylvania, and giving them an opportunity to search for the warrant; to institute an inquiry for the patent, which must be delivered up and cancelled; to find Fielding Bradford, if living, or his heirs, if he should have died; and, after obtaining all these prerequisites, to come to Chillicothe, in Ohio, and enter the land in their own names. Because he did not do this, he is charged with not only overreaching the defendants, but also himself.

To ascertain his duty in such an exigency, we must look at all his liabilities and all the circumstances; for, from a correct view of these are the moral and equitable obligations of men always derived. It is a matter of history that the holders of warrants, since 1830, have been in the habit of laying them on all lands subject to entry, by reason of the previous entry being void as in this case. Many valuable farms, long cultivated and possessed under entries and surveys made in the name of one dead at the time, have been taken from the possessors by subsequent entries. We mean no disparagement to that officer, when we assert that the register himself has been in the habit of ascertaining such eases, and buying warrants, and locating them on lands thus situated. When, therefore, Galloway ascertained this to be the situation of the land he had bought; when he looked to those to whom he had sold on the faith of such purchase, to whom he was bound to make titles; when he saw that this land, thus vacant, was at the mercy of the many speculators who abounded in that quarter in search of such lands; how could he, in good conscience, let an hour pass without placing himself and his vendees at rest as to the title? Had he sent a courier to advise the defendants, before he returned, the land would have been entered, and thus he would forever lose one-half of it already paid for, and forfeit his contracts with all to whom he had sold; whilst the defendants could gain nothing by this idle and dilatory proceeding.

[Galloway v. Finley et al.]

The only course an honest man could take under such circumstances, was that pursued by complainant: with his own funds he proceeded to make sure of the title necessary to fulfil his own contracts. He bought and paid for the whole, and for one-half of it he has paid twice. Shall all this sacrifice on his part now enure to the benefit of those who have led him into difficulty, from which he has been obliged to extricate himself with his own means, through ignorance of their right to that which they professed to own, but which in fact was not theirs.

But if the complainant had been the trustee of the defendants, constituted by deed to hold for them the very land in question; we contend that he had, under the circumstances, a right to purchase and hold it.

The law is settled, we believe, that where, by a judicial decision, the property held in trust is found to be owned by another, then the trustee may lawfully purchase the property and hold it in his own right. This doctrine is founded in reason and equity; when the fiduciary character is terminated for want of an object, the trust is at an end. Hovenden on Frauds, 474-5, 482. Here the land as to which the supposed trust existed, by the judicial determination of other cases identical with this, was known to all who knew the law, to be vacant land, and to be owned, not by individuals, but by the government. In September, 1835, by the laws of the land, it was not the property of defendants; and therefore no trust in their favour can be raised on a contract concerning it.

'In this view of the subject, the parties, if either had any equity, stood precisely equal. Neither had any right to the land, in law or equity. If the complainant has appropriated it by valid entries first, he is the owner, and must hold it against all the world. If the possession and ownership of warrants give an equitable right to land, then complainant had equal right with defendants. The latter, in September, 1835, owned a warrant, or part of it, calling for 2200 acres of land in that district; complainant had also a warrant for that quantity; he entered his, and thus obtained a legal right to the specific land, better than the defendants' equity, if such it may be called. In this view of their rights, the well established doctrines apply with full force in favour of complainant. Between equitable claimants, he who has precedency in time has advantage in right. Fitzsimmons v. Ogden et al. 7 Cranch, 2.

Having disposed of the question of right, we think proper to subVOL. XII.-2 N

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mit an observation to the Court as to the effect of a refusal to rescind the contract. Complainant prays a rescission; and if that cannot be granted, a confirmation of the title. What compensation can the Court make for the money expended in his second purchase. The land is held by virtue of Galioway's entry; if he is confirmed in this, and the contract still enforced, surely he is to be paid for his warrant. At what price is this to be estimated? If his expenditure enures to defendants' benefit, he should be allowed the amount of that expenditure on his contract? What is that amount? It would seem to be quite impossible by a decree to compel Galloway to withdraw his entry, and go to the register's office, and make an entry on Bradford's warrant in the name of Bradford's heirs. To enable the Court to see the equity of such a decree, it was incumbent on the defendants to show the Court whether this warrant be in existence, and where it is; that it has not been assigned in whole or in part by any of the persons to whom it passed by descent; that it is not in whole or in part in the hands of a bona fide holder by transfer, as above suggested, so as to make it impossible to appropriate land with it. Defendants should also show that this last could be done now, upon the instant, so that the land may not be subjected to that result which inevitably awaits it; an entry in the meantime by a third person, so soon as Galloway's entry is declared invalid. They should show that the patent is at hand, to be cancelled as the regulations of the land office require, before any new title can be allowed to exist in its inceptive form, under the old warrant. It was the total want of all these requisites to any safe and sure proceeding of the kind; all of which resulted from the ignorance of the defendants of that title which they assured the complainant they had, and which by law they were bound to know they had; it was this accumulation of doubt surrounding the title, which might have been, by possibility, created with the aid of Bradford's warrant, which made it not merely the privilege but the duty of complainant to reject it altogether; and for his own security, to rely on his own funds, to repurchase of the government what he had in vain sought to obtain through the defendants' rights. The Court cannot fail to see how great a perversion of language it would be to apply the phrase employed by Lord Nottingham in Maynard's case, to the conduct of complainant in this. It is said in that case, that equity will not aid one who "overreaches himself." The idea of a reasonable being setting himself to work to practice knowingly a fraud on himself, which seems the

Galloway v. Finley et al]

true and only definition of the phrase, is not according to any established notion of human conduct so clearly possible, as to admit it amongst those plain and simple elementary truths which compose the great body of chancery law. It might naturally enough, however, suggest itself to a mind perplexed and mystified as his lordship's no doubt was, by the tortuous expedients of one of the parties in that case, to gain an undue advantage. But as there is no similarity between the facts of that case and this, so there is no propriety in applying any rule of that case to the present. Instead of "overreaching himself," the complainant in this case, when he made his entry, stood exactly in the condition of a bona fide purchaser, finding his title not merely in peril, but utterly gone. He was compelled to protect himself. His is the case which a court of equity will protect against "a creditor, or an heir, or the fatherless." Sugden's Vendors, 723. His own warrant and his own entry, were the only plank he could seize in the shipwreck, to which the culpable ignorance of the defendants as to their own rights had exposed him.

Mr. Fetterman for the defendants.

To form a correct opinion upon the question, whether the complainant, in this case, does present himself under circumstances which impose on a court of conscience obligations to give him its aid, it will be useful to take a general view of that system of land titles, which has been introduced into the Virginia military district, in the state of Ohio, within hich the land in controversy lies. That system of law being made of usages, and growing out of circumstances, both of which are peculiar to itself, and out of the range of treatises on common law and equity, the bar of Pennsylvania have had little occasion to make themselves acquainted with even the leading features and outlines of those military titles.

So far as my limited knowledge will enable me, I will attempt a concise statement of the several steps by which a military title is perfected. Upon proof to the executive of Virginia, by a person that he is entitled to bounty lands, under the law of that state, for revolutionary services in the Virginia line, on continental establishment; the governor issues his warrant, which is a mandate to the principal surveyor of the military district, directing him to survey for the person entitled to the bounty, the quantity of land specified in the warrant. The warrant does not direct what particular tract of land shall be surveyed; and by usage, the owner of the warrant,