French v. The Successors of The Loyal Company, 5 Leigh 627

CARR, J. Several points were relied on. by the counsel for the appellant, for the reversal of the decree. It was first insisted, ' that the statute of February 1818, incorporating The Successors of The Loyal Company, and enabling them to sue, was unconstitutional. I have examined this point with the care especially due to objections striking at the powers of legislation, but can find no ground for its support. The statute invades no contract, touches no right, affects no privilege of the-defendant. It merely enables the plaintiffs to sue.

We decide the controversy by the same facts, the same legal and equitable principles, as if the act had never been made. It was next objected, that after the lapse of so many years, we are bound to presume, that the dues claimed by the plaintiffs have been paid. But is this, in truth, a case for presumption? By the original contract, the settler was to be put in possession of the land surveyed for him; and the company to. hold the legal title as a security -for the dues: no time of payment was specified.

The settler, of course, would not think of paying, until the company could perfect his title; and this they never could do, until after the decision of the court of appeals in 1783. So soon as that decision was made, we see that the company, bv depositing the surveys with the register, and paying up the composition money and patent fees, clothed itself with the power to give perfect titles to all settlers, who should pay up' their dues; and the case agreed states, that on such payment, the patents uniformly-issued.

If this defendant had made such payment, would he not rather have taken his patent from the company, without any further expense, than have bought a treasury warrant, entered the land, had a survey-made, returned the works, and taken out a patent, at a good deal of additional trouble and expense? But why argue this point?

It is set down in so many words, among the facts agreed, that on this survey, no patent has issued, nor have *the fees and dues been paid; and though there was an understanding, that “the agreement of the defendant, that the fees and dues had not been paid, was not intended to deprive him of the benefit of any presumption that might arise in law or equity, from the length of time,” this cannot weaken or destroy the effect of the admission. The fact of non-payment still stands admitted: its weight was matter for the court, and must of necessity destroy all presumption of payment arising from time.

A third objection was, that the adverse possession of the defendant and those under whom he holds, for twenty years, presents a complete bar. But this is not a claim to the land: it is a claim to the purchase money, secured on the land; secured too, not by that lien merely, which is raised by equity, in the absence of all compact, but a lien raised by the express agreement, that the settler should hold the land, and the company the title, as a security for all dues. This assimilates the case to that of mortgagor and mortgagee, to which, we know, no act of limitation applies.

And as to the adverse possession spoken of, I can hardly conceive, how a mortgagor can so change his position, as to render his possession adverse to his mortgagee, and thereby affect the lien he has given. There would be a violation of contract and of good faith in such an attempt, which equity would never tolerate. It was objected, fourthly, that The Loyal Company having failed to file a caveat against the issuing of a grant to John French, have lost their lien. The caveat is a

summary remedy by statute, to arrest a party in his progress to a grant, and applies to cases of two kinds; 1. where there is some defect in the works of the adversary, or failure to return them in time; 2. where the caveator “hath by law, a better right. ” It was not suggested, that there was any ground for a caveat, on the first point; but it was insisted, that the company ought to have caveated, on the ground of better right. But what better right had they to the land? None whatever.

By their agreement with settlers, each survey was made in the name of the individual, and to him or'"'his assignee the patent must of course issue. They had only a lien on the legal title for their dues.

Thus, they could neither present a better right in themselves as a foundation for a caveat, nor make the oath required by law, 1 ‘that the caveat was really and bona fide made, with an intention of procuring the land for themselves, and not in trust for the benefit of the person against whom the caveat was entered. ’ ’ Look at the facts : the survey was made by the company for Johnston in 1775; he sold, assigned and transferred his right and interest in the survey and land to James Payne; by descent it came to another Payne, who sold his interest in the land, and assigned the survey to John French.

By this purchase, French became a holder of the land under the company, precisely as Johnston had held it; the survey which constituted his only title, expressing that it was a part of the grant to The Loyal Company. While holding thus, John French laid a treasury warrant on this land, and had it surveyed. How could the company have caveated him? in whose name? In their own, it seems admitted, they could not. Could they use the name of Johnston, their original settler? clearly not; for he had long before parted with his whole interest in the land, and it had come by regular transfer to the same John French.

Could they make French the caveator? Try it: “Let no grant issue to-John French for 99 acres of land, lying &c. because the same John French claims the same land by a survey made for James Johnston in 1775, under The Loyal Company, which survey has been regularly assigned to the said French.” Hoes not the absurdity strike every one at once? The same person caveator and caveatee, plaintiff and defendant!

And does not this view of the case shew, that the grounds on which The Loyal Company now claim relief, are such as could not be used by them on the trial of a caveat? thus presenting the very case, in which, by the express declaration of the court, in Noland v. Cromwell, 4 Munf. 155, the issuing of a, patent will not preclude a party from relie! in equity. But, there is another ground on which the failure to caveat has been *held to be excused ; the ground of actual fraud. The case of Noland v.

Cromwell, according to my understanding of it, does indeed decide, that actual fraud, will not excuse from caveating, unless the party can shew, that he was prevented by fraud or accident from prosecuting his caveat; and this I laboured, with all my might, to establish as the doctrine of that case, in the case of M’Clung v. Hughes, 5 Rand. 453.

Yet, as (in this last case) the court after a most elaborate examination of this very point, and a review of every case, which had been decided on the subject, either by the federal court or this court, came to the decision (three to one), that where there was actual fraud in obtaining the patent, the party against whom it was practised, might have relief in equity, though he shewed no excuse for failing to caveat, and that this was the true meaning of Noland v. Cromwell; I feel that it is due to the decision of my brethren, and to the repose and quiet of the subject, to take this as the settled doctrine.

Applying it to this case, no one, I presume, can doubt, that in taking out a patent, tinder a treasury warrant, for the same land which he was holding under The Loyal Company’s survey, and thus attempting to deprive them of their lien and their dues, John French committed a palpable fraud. We come then, to the objection, that David French is a bona fide purchaser of the legal title, for a valuable consideration, without notice.

It is a well settled principle, that he who can place himself upon this ground, need never fear the action of a court of equity: he has the law, and you cannot touch his conscience: but the party who means to defend himself on this ground, must deny, on oath, the fact of notice, and every alleged circumstance from which notice can be inferred. Mitf. Plead. 215, 216; Jones v. Thomas, 3 Cox’s P. Wms. 243, 4, and note there; Jerrard v. Saunders, 2 Ves. jr. 456; Wallwyn v. Lee, 9 Ves. 31, 2.

With a view to this point, I looked for the defendant’s plea and answer, but there are none in the record; and I must presume, that the plaintiffs waived the filing of them, by their assent to try the case on the agreed facts. *It was strongly insisted in the argument, that the defendant is not the purchaser of the legal title, because under the peculiar circumstances of the case, the grant to John Erench did not carry that title.

My impression is, that it did, and that such is the law under the decisions of this court; but I shall not discuss the question; for taking the defendant to be a purchaser of the legal title, I consider him a purchaser with notice of the plaintiffs’ equity, and therefore subject to it. The reasons for this opinion, I proceed to state, as briefly as I can. The notice which is spoken of in equity, has, I conceive, nothing technical in it, but is founded on the great principles of common sense and practical justice and utility.

Manj' cases occur, where it is important to ascertain whether a party had notice of certain facts or circumstances: whether he had such notice or not, is a question of fact, and may be established by direct and positive proof, or by the proof of other facts which satisfy the mind of its existence. I have seen nothing more clear and satisfactory on this subject, than what is said by lord Erskine in Hiern v.

Mill, 13 Ves. 120. “Notice is of two sorts: actual notice, which must be proved, as any other fact; and notice by construction of law, as where notice to an agent is notice' to the principal, if the agent comes to the knowledge of the fact, while he is concerned for the principal, and in the course of the veiy transaction which becomes the subject of the suit. The rule as to notice arising from lis pendens is a positive rule of law, made to prevent purchases of litigated titles.

Another case is, where the law imputes that notice, which, from the nature of the transaction, every person of ordinary prudence must necessarily have.” In the case of Hill v. Simpson, 7 Ves. 152, there is a direct recognition of the principle, which is laid down in many cases. In Taylor v. Stibbert, 2 Ves. jr. 437, lord Roslyn states it thus — “I have no difficulty to lay down, and am well warranted by authority, and strongly founded in reason, that whoever purchases an estate from the owner, knowing it to be in the possession of tenants, is bound to' inquire into the estates those tenants have.

It has *been determined, that a purchaser being told, particular parts of the estate were in possession of a tenant, without any information as to his interest, and taking for granted it was only from year to year, was bound by the lease that .tenant had; which was a surprize upon him.

That was rightly determined; for it was sufficient to put the purchaser upon inquiry, that he was informed the estate was not in the actual possession of the person with whom he contracted; that he could not transfer the ownership and possession at the same time; that there were interests, as to the extent and terms of which, it was his duty to inquire.” And in Hiern v. Mills, lord Erskine charged a purchaser with notice of an equitable lien, because when he bought, the title deeds were not in' possession of the vendor, but of the person who after-wards filed the bill to enforce his lien.

He said — '“A purchaser must look to his title; if the vendor, being asked for his deeds, acknowledges that he has not got them, the purchaser is bound to make further inquiry.” In Daniels v.

Davison, 16 Ves. 249, 17 Id. 433, Daniels had entered into an agreement to buy land of Davison ; he was also in possession as tenant; but the legal right was in Davison ; Cole bought of Davison, and took a conveyance; then Daniels filed his bill, for a specific execution of his agreement, making Davison and Cole defendants; Cole denied all notice: but lord Eldon decided, that the possession of Daniels made it incumbent on Cole to inquire, and so charged him with notice of the agreement; and after much argument, and citing many cases, he concluded thus— “My opinion therefore, considering this as depending upon notice, is, that this tenant being in possession under a lease, with an agreement in his pocket, to become a purchaser, those circumstances, altogether, give him an equity, repelling the claim of a subsequent purchaser, who made no inquiry as to the nature of his possession.

That was the doctrine laid down by lord Roslyn in the case to which I referred (Taylor v. Stibbert), and I think it right.” And when Daniels v.

Davison came again before the chancellor, he said — “I have already expressed my opinion, that the plaintiff is entitled *to a specific performance of the agreement, for the sale of these premises to him; and with regard to the subsequent sale by the defendant Davison to the other defendant Cole, my notion is, that the plaintiff has an equity to have a conveyance, of the premises from Cole, upon the ground that Cole must be considered, in equity, as having notice of the plaintiff’s equitable title under the agreement; that Cole was bound to inquire; and therefore, without going into the circumstances, to ascertain, whether he had, or had not, actual notice, he is to be considered as a purchaser of the other defendant’s title, subject to the equity of the plaintiff, to have the premises conveyed to him, &c.” These cases shew, that there is no difference in the effects of notice, whether it be actual or constructive: in both cases, the purchaser is equally subject to the equity.

They shew also, that wherever ordinary prudence would suggest an inquiry, notice is imputed by the law, and the party charged with every thing of which the strictest inquiry would have put him in possession. The case of Daniels v.

Davison is very strong to this purpose: for there, the possession of Daniels was as tenant under a lease, and gave no intimation that he had in his pocket an agreement to purchase the property; yet as this possession made it incumbent on Cole, in common prudence, to inquire into his claims, and as this inquiry would, probably, have produced a discovery of the agreement to purchase, Cole was charged with notice of that agreement.

And all this is founded upon that ancient and very general rule, which we find laid down in so many books, that '“whatever is sufficient to put a partj’ upon inquiry, is good notice in equity’ Smith v. Low, 1 Atk. 490. Keeping these princixdes in mind, let us advert to the facts and circumstances attending this case. The grant to The Loyal Company, their progress, adventures, wars with the indians, difficulties, dangers and hardships, may be considered as in some -degree belonging to the public history of the country, especially of the western country.

We see from their names, that the company was composed of many persons, among the most eminent and influential men of their *day. The quantity of land they were authorized to take up, -was immense, 800,000 acres, scattered through a territory, now forming several large and populous counties. At an early day, they made many surveys in the •wilderness; and settled upon them many hardy adventurers.

These continued to increase; and when, after the revolution, the legislature came to make provision for settling the titles of claimants to unpatented lands, it found these claims worthy of particular attention, and it enacted, that they should be laid before the court of appeals, to be heard and determined in a

summary way ; that the attorney general should appear for the commonwealth ; and that on the certificate of the court, that any claim had been by it established, the register should issue a warrant or grant thereupon <&c. In pursuance of the provisions of this statute, Walker, the agent for the company in December 1779, laid before the court all the surveys made under the orders of council, amounting to 973; and in this court of the last resort, the subject depended for three years; a lis pendens between the commonwealth and the company’.

This of itself was calculated to give to these claims great notoriety, and to call the attention of the public particularly to the subject; a subject deeply interesting to all settlers under the company, and, generally, to emigrants then crowding to this western country. The court, at length, established all these surveys, and directed grants to issue, upon payment of the dues; which payment was promptly made, and the surveys deposited with the register, free for the inspection of all. They were also recorded in the surveyours’ offices of the different counties, in which the lands lay.

It is also among the agreed facts, that ever since the making these surveys, their particular location has generally been known and well understood, in the country where they are situated, and that the neighbourhood, water courses, and other natural boundaries, are particularly described in each survey, and well known to the inhabitants of the country. In addition to this, the company had always agents, residing in and visiting the country, endeavouring by public advertisements, and personal applications, to collect *the dues, and giving out patents from time to time, as payments were made.

It is also agreed, that the defendant French himself knew before his purchase, that The Loyal Company’s surveys were scattered throughout the country in which his land lay: that he knew, that sundry survej’s had been made for the company, in that very neighbourhood; knew also, that surveys were well bounded, and the neighbourhoods in all of them, well described, and that almost all of them could be found without difficulty; and finally’ knew, that they were recorded in the several surveyours’ offices, and filed in the register’s office.

Under all these circumstances of public notoriety, and with all this personal knowledge, the defendant, in 1829, purchased of John French (a man of his own name, and called by the chancellor his ancestor) a tract of land, lying in the very heart of the district covered over by these surveys; a tract, which had been actually surveyed for the company, and long held under that survey by his vendor. Is it possible, with these facts before us, to resist the conviction, that he bought with actual knowledge of the survey? I cannot; I am compelled to be'ieve that he had full actual notice.

It is said, actual notice is out of the question, because the agreed facts state that there was none such.

This I deny; and to shew that it is a clear mistake, 1 make the following literal quotation: “It does not appear that the defendant had any actual notice, that the 99 acre survey was included in the land purchased of the said John French, before the purchase, — except that he knew The Loyal Company’s surveys were scattered throughout this part of the country &c.” going on to except all the facts within his knowledge, which I have already set down, and which constitute the actual notice; and shewing, distinctly, that the parties meant to admit the knowledge of the facts, and to leave to the court the question, whether they amounted to actual notice.

I think they do: but if there may be a difference of opinion about this, can any body doubt, that the facts of public notoriety, together with those admitted to be known by the defendant, made it incumbent on him, in common prudence, to inquire into the title? to *ascertain, whether some survey of the company did not cover this land? The sources of information were at hand, and well known to him; and to me this part of the case seems too clear for doubt. But there is another ground of notice,— the lis pendens. In Worsley v.

Earl of Scarborough, 3 Atk. 392, lord Hardwicke says — ■“ There is no such doctrine in this court, that a decree made here, shall be an implied notice to a purchaser, after the cause is ended; but it is the pendency of the suit that creates the notice; for as it is a transaction in a sovereign court of justice, it is supposed all people are attentive to what passes there.” Sorrell v. Carpenter, 2 P. Wms. 482; Walker v. Smallwood, Amb. 676; Bishop of Winchester v. Payne, 11 Ves. 194, contain the same doctrine. In Gaskell v.

Durdin, 2 Ball & Beat. 169, the lord chancellor says, — '“The rule of this court undoubtedly is, that any interest acquired in the subject matter of a suit, pending the suit, is so far considered a nullity, that it cannot avail against the plaintiff’s title.” Now, in 1799, the survivors of The Loyal Company filed a bill in the high court of chancery, against some of the settlers, in which the whole history of the case is given; the rights of the company in the ■whole subject insisted on ; the conduct of the settlers stated, — that some refused payment of the dues on one ground, some on another; that some had got grants on the judgment of the land commissioners, and others on treasury warrants, without paying the company’s dues; and praying that in all such cases the grants might be set aside as surreptitiously issued, or the holders be taken as trustees for the company, to the amount of their dues; that where no grants had issued, they might issue to the company, in trust for the settlers when the dues should be paid; and that until the matter should be heard, the register should be in-joined from issuing patents for any land surveyed for the company, unless upon the requisition of their agent.

This injunction was granted, and has never been dissolved. Various proceedings have taken place in the suit. It was removed to the court of chancery of Staunton, returned to that of Richmond, '^abated as to some parties, revived in the names of the successors of The Loyal Company, and is still depending in the Richmond chancery court.

It is objected, that this record is not properly before us, as not being stated to be a part of the case agreed: but we see, at the end of the facts agreed, this clause — '“If any essential fact is omitted, bj' either of the parties, they shall be at liberty to supply it.” We see tha't this record was filed and used in the court below, without objection. We must conclude, therefore, that it was under this agreement, and the objection comes too late in this court. But it was objected, that this could be a lis pendens only as to the land held by those who were made parties to the suit.

Speaking of a lis pendens, in reference to the notice it gives the world, I cannot think this objection sound. It is the subject matter of the suit, of which notice is given. Now the bill we speak of, involved the whole title, rights and interests, of the company, and it prayed and obtained an injunction against issuing patents, not only to those who were made defendants, but to every holder of a survey made for the company : and every patent issued after this, for the land contained in such surveys, was a violation of this injunction.

It would have been impossible to bring before the court, all the individuals who held under the company, then probably largely upwards of a thousand. I think upon these grounds, that the lis pendens, was also notice to this defendant. But I rest my opinion most confidently upon the other grounds of notice. I am for affirming the decree. CABELL, J. Most of the objections taken to the decree, by the counsel for the appellant, seem to me to have no foundation. 1. The statute incorporating The Successors of The Loyal Company, affects not in the smallest degree, the rights and •obligations of the parties.

It relates merely to the remedy for asserting and enforcing them, which has always been regarded as a legitimate object of legislation. 2. The presumption that the dues of the cornpany have *been paid, is repelled by the facts agreed by the parties. If they had been paid, Erench would have taken out a grant upon the survey made for him by the company, rather than encounter the useless trouble and expense of laying a warrant on the land, and surveying it anew. 3.

The claim of the company being only to an equitable lien on the land, and not to the land itself, cannot be affected by the adverse possession of Erench; and the length of that possession can have no other operation than to create a presumption of payment; which presumption, however, is repelled, as has been observed, by the other facts in the case. 4. It was contended, that the company have lost all other remedy, in consequence of their failure to file a caveat against the emanation of the grants to John Erench. This pretension is based on the supposed effect of the decision in the case of Noland v.

Cromwell, 4 Munf. 155. But that case was reviewed and expounded in M’Clung v. Hughes, 5 Rand. 453, and it was solemnly held, after very great consideration, by three judges out of four, that according to the case of Noland v. Cromwell, the failure to file a caveat, even when not caused by fraud, accident or mistake, does not preclude a resort to a court of equity, where the party obtaining the grant, has. been guilty of actual fraud; and moreover, that he is guilty of actual fraud, who, knowing another’s prior equity, proceeds to get a grant for the land.

If this be law (and it must be law, unless the power to expound its own decisions be denied to this court) it is clear, that the company lost nothing by their failure to caveat John Erench; for, as he had held the land under the company, he must have known their equity, and he was guilty of a gross fraud in seeking to evade his obligations to them, by getting and conveying away the legal title.

Having disposed of these minor points, we come now to the great, and indeed, as it seems to me, the only real question in the cause; namely, whether David Erench, the appellant, is a bona fide purchaser of the legal title,for valuable consideration, without notice? If he shall be found to occupy this ground, it is admitted that he must prevail. And *it is equally clear, that if he had notice of the prior equity of the company, he will be as much bound by that equity, as John French, from whom he purchased.

In the investigation of this important question, we are met, on the threshold, by an objection that John French did not acquire the legal title by his patent, and consequently could not convey it by his deed, to David Erench. This objection is founded on the pretension, that the lands surveyed for the company, were not such waste and unappropriated lands, as were subject to location under land office treasury warrants.

If this exemption from location be allowed to the surveys of The Loyal Company, it may be claimed, with equal propriety, for all the other surveys and inchoate rights to land, recognised and declared valid by the statute of May 1779, for adjusting the titles of claimers to unpatented lands, under the former and present government, 2 Rev. Code, App. II, ch. 4, p. 354.

Whether any of them are entitled to this exemption or not, depends on the just construction of that statute, and another of the same session, for establishing a land office and ascertaining the terms and manner of granting waste and unappropriated lands; Id. ch. 5, p. 365. Before the revolution, all the lands in the country belonged to the king, until granted out by him. There were then, as now, various and successive steps necessary to be taken for the purpose of getting a grant for lands; such as locations or entries, surveys &c. &c.

These various steps gave incipient rights, or equitable interests in the land; and he who took'the first legal step, acquired thereby a preference to a grant, provided he followed it up properly. But It was the grant only that passed the legal title. At the revolution the commonwealth succeeded to all the rights of the king, in ¡relation to land.

In 1779, the legislature, desirous to encourage the migration of foreigners to the country, promote population, increase the annual revenue, and create a fund for the payment of the public debt, established by the second statute above referred to, a land office, for the purpose of granting lands within the commonwealth, and prescribed *the manner and terms, on which any person might acquire title to so much waste and unappropriated land, as he might desire to purchase.

He was, in the first place, to pay to the treasurer, a consideration at the rate of ^40. for every 100 acres, and then to obtain from the auditors a certificate thereof, stating the quantity of land he was thereby entitled to. This certificate was called a land warrant. It specified, however no particular land.

The holder of such a warrant, desirous to locate it on any particular waste and unappropriated land, must lodge it .with the surveyour of the county, and direct the location thereof, so specially and precisely, as that others might be enabled to locate, with certainty, other warrants on the adjacent residuum. The surveyor was then to survey the land, in the time and manner prescribed by the statute; a plat and certificate of the survey was to be recorded in the survesmur’s office, and delivered to the party, who was, within twelve months, to return the same to the land office.

Various ■causes are stated in the statute, for which any person might file a caveat, to prevent the emanation of a grant. But if no caveat was filed, the register of the land office was required to make out a grant, within not less than six nor more than nine months. But there were “various and vague claims” to land under the former and present government, previous to the establishment of the land office, which were ■calculated to “produce tedious and infinite litigation and disputes,” and to discourage purchasers from taking up lands upon the terms prescribed by the statute establishing the land office.

It, therefore, became “just and necessary, as well for the peace of individuals, as for the public weal, that some certain rule should be established for settling and determining the rights to such lands, and fixing the principles upon which legal and just claimers should be entitled to sue out grants; to the end that subsequent purchasers and adventurers might be enabled to proceed with greater certainty and safety.” The legislature, therefore, took up this subject, and acted on it, in the statute first above referred to.

It declared valid, various classes of surveys of waste and unappropriated lands, *'regularly made by legally commissioned countj' surveyours, and founded on certain rights therein mentioned. It declared, that all persons claiming lands under surveys thus made valid, and against which no caveat had been entered, should, upon the plats and certificates of survey being returned into the land office, be entitled to grants for the same, in the manner therein after prescribed.

It then went on to establish certain rights still more inchoate than surveys, such as entries, settlement rights, and pre-emption rights founded on actual settlements. These two statutes of May 1779 are not only in pari materia, but were passed in the immediate contemplation of each other, and probably on the same day. In proof of this, it may be observed, that the first

section of the statute for settling the titles of claimants to nnpatented lands, speaks of the terms “lately prescribed by law,” for acquiring lands; referring, evidently, to the terms prescribed in the other statute of the same session, for establishing the land office. I say the reference must have been to that statute, because no other law had been passed on the subject of acquiring lands since the change of government. The first statute refers, also, in various parts, to the land office as having been already established; and, in one instance, refers to the statute by which it was established, as

an act that had already passed, giving its title verbatim. The statute establishing the land office, also refers to that for settling and adjusting previous claims to unpatented lands, and quotes its title verbatim. It is manifest, therefore, that these two statutes ought to be regarded and construed, as different parts of one and the same statute. What then did the legislature mean by “waste and unappropriated lands,” on which the holders of land warrants were authorized to locate them?

Did it mean lands to which no other person had a prior, but incipient right, as by entry or survey? or did it mean unpatented lands? Did it mean, in the first place, that lands legally located or surveyed on land office treasury warrants, ceased to be waste and unappropriated, so that no subsequent location could be ^legally made thereon, and that all patents obtained on such subsequent locations, for lands covered by prior locations, were necessarily void? Bet the decisions of this court, whose province it is to expound the statutes, answer these questions.

It has never been. doubted, that a person getting the first patent, on a survey founded on a land office treasury warrant, gets thereby the legal title, notwithstanding another person may have made a prior legal location and survey, on a similar warrant. And it has been decided very frequently, and I think uniformly, that even a court of chancery can give no relief against such patent, unless the owner of the prior entry or survey had been prevented from filing a caveat, by fraud, accident, or mistake; or unless the person who got the first patent, had been guilty of actual fraud.

The cases on this subject, as also the reasons for the decision, will be found in Noland v. Cromwell, and in M’Clung v. Hughes. And it has been frequently decided, also, that the first patent carries the legal title, even when it has been fraudulently obtained; but a court of equity will consider the patentee, in such case, a trustee for the owner of the prior entry and survey, and will compel him to convey the legal title accordingly.

Indeed, I understand the counsel for the appellees as admitting these positions, when applied to cases where the senior entries and surveys are founded on land office treasury warrants. They insist, however, that they are not applicable to surveys and other rights to land, which existed before the establishment of the land office, and which were declared valid by the statute which settled and adjusted such claims. Let us then inquire, whether such surveys and rights form an exception to the general rule.

We have seen that the two statutes of May 1779, so often referred to, are to be regarded as one act; and we have seen that, according to the decisions of this court, the terms “waste and unappropriated lands,” include lands to which persons may have valid claims under location and surveys on land office, treasury warrants, acquired under the authority *of the general land law. Upon what principle of sound construction can we say, that the same terms shall not include lands covered by locations and surveys declared valid b}» the other statute?

It cannot be pretended, that incipient claims to land acquired under the authority of the general land law, are less valid, than the incipient claims declared valid by the other statute. Why then shall we extend to the latter, a privilege (exemption from location) which is denied to the former?

To have exempted either class from location on land warrants, would have operated injuriously to the public, by preventing or retarding the sale of the public lands; for persons would have been discouraged from becoming adventurers or purchasers, if they had believed that their titles might be defeated at subsequent and remote periods, by the exhibition of these dormant-claims. The same policy applied to both classes of claims, and both should be subject to the same law, making the lands, in both cases, liable to subsequent location.

This liability, while it advanced the public interest, would do no injury to the diligent prior claimant; for his rights might be always secured by a resort to the courts of caveat; tribunals wisely provided for the adjustment of conflicting claims to land before the emanation of grants. But this point does not rest on reason only. There is authority, also, for the opinipn, that lands covered by claims declared valid by the statute for settling claims to unpatented lands, are not less liable to location on land office treasury warrants, than lands covered by valid claims acquired under the general land law.

I allude to the case of Burnsides v. Reid, 2 Wash. 43. Both parties, in that case, claimed under settlement and pre-emption rights; and the claims of both were submitted to the court of commissioners, established by the statute of 1779. That court decided in favor of Burnsides, giving him 400 acres for his settlement, and 600 acres for his pre-emption. Reid filed a caveat in the general court, to prevent a grant to Burnsides; and that court reversed the judgment of the court of commissioners, and gave judgment in favour of Reid, for 400 acres for his ^settlement, and 600 acres for his pre-emption.

After this, Burnsides obtained an injunction from the high court of chancery, to prevent a grant to Reid; and pending this controversy, fraudulently obtained a patent for 1200 acres, founded on the judgment of the commissioners for 1000 acres (although it had been reversed by the general court), and 200 acres by virtue of a land office treasury warrant.

The case, after having been decided in the court of chancery, was brought up to this court, which decided in favor of Reid, and decreed that Burnsides should convey to him so much of the land covered by his patent, as should be found to interfere with Reid’s 1000 acres. This case, therefore, proves that a patent, although fraudulently obtained, and founded partly on a land office treasury warrant, conveys the legal title, even against a person having a valid claim, under settlement and pre-emption rights, established by the first statute of May 1779.

But, superiour validity is claimed for the surveys of The Loyal Company, because they were established by the judgment of the court of appeals, to which they were required to be submitted by the statute. I am not at all disposed to detract from the force of that judgment: but I must be permitted to observe, that the

section of the law referred to, shews no particular favor, on the part of the legislature, towards the claims of The LojAl Company, or of any other persons, claiming under surveys, on orders of council, or entries in the council books. It is manifest, that that

section was dictated by the suspicions, rather than the favor, of the legislature, towards all such claims. It is worthy of remark, that as to all other surveys founded on rights approved of by the legislature, their validity is established by the statute itself, directly and immediately; and on their being returned to the land office, patents were to be issued upon the usual terms, unless caveats had been filed against them. But as to surveys on orders of council, it is declared, that no claim under them shall be valid, but such only as shall- be heard and established by the court of appeals.

The decision of that court did no more for these claims, than what the statute *itself had directly done for the others which were objects of its protection • it established their validity as between the commonwealth and the company: but they were to be returned to the land office, where patents, were to be issued on them, according to the rules and regulations of the office. The investigation before the court of appeals was. one to which there were no parties, but the commonwealth, and the claimants under the surveys.

The statute required that the attorney general should attend the court on behalf of the commonwealth, and provided that the cases might be continued, on proof to the court, that any claimer under the surveys was unable to attend; but it had not one word concerning those who had adversary claims. The surveys, therefore, when returned to the land office, stoud precisely on the same footing with those surveys which the statute itself had declared valid, without the intervention of the court; liable to be caveated for the same causes, and subject to the same rules and regulations.

I am, therefore, of opinion that the commonwealth’s grant to John French, conveyed to him the legal title; and that his deed conveyed it to David French. I have given to this branch of the subject more attention, than some, perhaps, may think it deserves: I have done so, because this point was strongly relied upon by the counsel; and because it is the one on which I felt, at first, much doubt. David French having thus acquired the legal title, for valuable consideration fully paid, it remains to inquire, whether he acquired it bona fide, without notice of the prior equity of the company.

Notice is of two sorts, actual and constructive. Actual notice is actual knowledge by the party, of the very matter or thing, of which he is said to have notice. It is a matter of fact, and is to be proved, like all other facts, by direct proof of the fact itself, or by proof of circumstances, from which the fact may be justly inferred. Did David French have actual knowledge, before he completed his purchase, that The Loyal Company had any claim upon this land? Unless the evidence justifies us in ’'answering this question affirmatively, we cannot say that he had actual notice.

And here let it be remarked, that as he has not pleaded to the bill or answered it, and as the parties have chosen to dispense with both plea and answer, and to rest the case on the facts agreed, we can know nothing of David French, except what is disclosed by the case agreed; nor can we know any thing of the information possessed by him, except what he directly admits, or what is to be justly inferred from his admissions.

And, even as to the facts which are admitted in the record, we must, in considering the subject of notice, distinguish those which are merely admitted to have occurred or existed, from those which are admitted to have been known to David French. Thus, he admits the whole history of The Loyal Company, the original and subsequent orders of council in their favor, their toils and dangers, their 973 surveys, the submission of them to the court of appeals, the judgment of that court, the possession of the land by Johnston under the survey made for him, the assignment of the survey to Payne, and then to John French &c.

These facts, deemed important by the company, are admitted by David French, because he was aware, that if disputed, they could be proved: but he does not admit, that he knew them, before his purchase. A few short lines of the record contain every thing which he admits he knew.

They are as follows: “It does not appear, that the defendant (David French) had any actual notice, that the said nientynine acre survey was included in the land purchased of the said John French, before the purchase, except that he knew The Loyal Company’s surveys were scattered throughout that part of the country; he also knew, that sundry surveys had been made by the company in that neighbourhood ; he knew, that the surveys were well bounded, and the neighbourhoods well described in all said surveys, and that almost all of them could be found without difficulty; he knew, that the plats of those surveys were recorded in the several surveyors’ offices, and filed in the register’s office in Richmond.” Do these fact prove, that he knew, or had notice, ■ that the land he was purchasing, was included in, or "covered by any of those surveys?

It will not be pretended, that they prove it, directly or positively; and I think it is equally clear, that they cannot be considered sufficient circumstances to prove it presumptively, or by just inference. A fact is said to be proved presumptively, when such circumstances are proved, as usually attend such facts; 3 Blacks. Comm. 371.

Is the general knowledge, that surveys were scattered throughout an extensive territory; that many of them were in a particular neighbourhood; that all of them were well bounded, and the neighbourhoods well described; that almost all of them could be found without difficulty, and that all of them were recorded in the surveyours’ offices, and in the register’s office: is such general knowledge as this, usually attended by a knowledge of the situation of each survey, so as to know the land it covers? Every mind must answer this question in the negative.

How, then, can we justly infer from these circumstances, that David French actually knew, that the land in the possession of John French, was embraced by any of the company’s surveys?

If it be said, that being about to purchase, and knowing what he confessedly did know, it was his duty, as a man of ordinary prudence, to make further inquiry, and that such inquiry would have led him to a knowledge of the equity of the company, — -I reply, that even if this were true, it would prove that he had constructive, not actual notice; for actual notice (of which only we are now speaking) depends on the knowledge which a man has, not on what he might have, were he to go in pursuit of it. A mere obligation to inquire, does not impart actual knowledge.

The obligation may, as in case of other duties, be overlooked or disregarded. The inquiry may not have been made, and unless it appears to us, judicially, that it was made, we cannot judicially say, that the party had that knowledge which the inquiry only could have given. I am, therefore, of opinion, that David French liad not actual notice.

I proceed, then, to inquire, whether he had constructive notice; premising, that if he had this sort of notice, he is as "much bound by it, as he would have been by actual notice; for the law gives the same effect to both kinds of notice. “Constructive notice, in its nature, is no more than evidence of notice, the presumptions of which are so violent that the court will not allow, even, of its being controverted.” (Sugden 553.) It is that notice which the law imputes to a man, without regard to the fact, whether he has or has not actual knowledge of the thing, of which he is said to have notice, and'even although it may be clearly proved, that he had not such actual knowledge.

It is therefore essentially different, in its character, from actual notice. Por although actual notice may be inferred from circumstances, or, in other words, may be proved by presumptive testimony, yet the circumstances or presumptive evidence, must be such as to convince the mind, that the party had actual knowledge of the thing of which he is said to have notice. Any thing short of such knowledge, is not actual notice; although it may, in some cases, amount to constructive notice. And whenever there is such knowledge, it is actual notice although proved by presumptive testimony.

But although the law, in many cases, imputes notice to a man, on evidence far short of that, which, if its weight only were considered, would be necessary to prove actual notice; yet, if we attend to the nature and character of the facts, which the evidence, in such cases, does establish, we shall see, that the law in imputing notice, acts with its usual justice and equity.

Thus, on proof of notice to an agent, the law, at once, imputes notice to the principal; not because notice to the agent, is proof that the principal actually had notice also, but because it is a fact of such a character, that the principal ought to be as much bound by it, as if he had notice. “Por” (as the chancellor said, in Attorney General v. Gower, 2 Eq. Ca.

Abr. p. 685, pl. 11), “the principal by trusting his agent, made his act his own, and became answerable for it; for, otherwise, a man who had a mind to get another’s estate might shut his own eyes, and employ another to treat for him, who had notice of a former title; which would be a manifest cheat. ” So, likewise, on proof *of a fact which “is sufficient to put a purchaser upon an inquiry,” the law imputes to him notice of that to which the inquire would have led him; Smith v. Bow, 1 Atk. 489.

This is done on the principle, that as he ought to have made the inquiry, his voluntarjr failure to make it, shall not prejudice the rights of third persons. If David Prench had constructive notice at all, it must be on the principal that he, knew enough to put him on inquiry. Whether he was under such obligation or not, will be best ascertained by examining the cases on this head of constructive notice, and by observing the reason on which the obligation to make inquiry, has been held to exist. And I will now proceed to examine those which have been relied on, in behalf of the appellees. Taylor v.

Stibbert, 2 Ves. jr. 437. In this case, Stibbert purchased an estate in fee, with notice that it was in the hands of tenants, on a lease; but he was told by the vendor that the lease was void. The lord chancellor said — “I have no difficulty to lay down, and a well warranted by authority, and strongly founded in reason, that whoever purchases an estate from the owner, knowing it to be in the possession of tenants, is bound to inquire into the estates those tenants have.

It has been determined, that a purchaser, being told that particular parts of the estate were in the possession of a tenant, without any information as to his interest, and taking-it for granted, it was only from year to year, was bound by the lease, which was a surprize upon him.

That was rightly determined; for it was sufficient to put him on inquiry, that he was informed the estate was not in the actual possession of the person with whom he contracted; that he could not transfer the ownership and possession at the same time; that there were interests, as to the extent of which it was his duty to inquire.” He then observed, as to the case before him, that in addition to the general ground of the estate being in the hands of tenants, the purchaser being informed that the tenants held it under leases, he was bound to know all the contents of the leases.

We cannot mistake the ground of this decision. The circumstance *mainly relied on as imposing the obligation to make inquiry, was the knowledge of the purchaser, that other persons were interested in the very property he was about to purchase. As to the additional ground, namely, the knowledge that there was a deed of lease, I will examine, that, more particularly, when I come to the cases as to notice of deeds. Daniels v. Davison, 16 Ves. 249, 17 Id. 432, is the same, in principle, with that of Taylor v. Stibbert. It was the purchase of an estate, by a person knowing it to be in the possession of a tenant.

That circumstance was held sufficient to put him on inquiry; and he was, therefore, held to take the estate subject to all the rights of the tenant, not only under the lease, but under an agreement of the tenant to become the purchaser. It was decided on the authority of Taylor v. Stibbert. Smith v. Low, 1 Atk. 489, puts the obligation to make inquiry on the same ground. “They found',” said lord Hardwicke, “a person in possession of their estate, and that was sufficient to put them to inquire.” In Hiern v.

Mill, 13 Ves. 114, Mill being indebted to Hiern, deposited with him the title deeds of an estate, by way of security, promising at the same time, to execute a formal mortgage. One Arnold, afterwards, purchased the estate from Mill, knowing that the title deeds were not in his possession, but in Hiern’s. In his answer, Arnold denied knowledge of Hiern’s lien on the land, but admitted that he knew he had the deeds, believing as he said, that he held them as a security for a debt due to one Quarne.

In deciding the cause, the chancellor chose, from ■ public considerations, to rest his decision solely on the ground, that the purchaser knew the title papers were not in the possession of the vendor, but of another. He referred to the case of Taylor v. Stibbert, and said the case before him was much stronger than that. He observed, that 1 ‘land is held not by possession, but by title. A purchaser must look to his title, and if, being asked for the deeds, the vendor acknowledges he has them not, the purchaser is bound to further inquiry.

In this case, Arnold, apprised that this plain till has the title “deeds of Mill’s estate, does not choose to go to the plaintiff, to inquire whether he has a claim upon it, but purchases the estate from Mill.” The purchaser was, therefore, held to take the estate subject to the claim of the creditor. It is,obvious, that, in this as in the preceding cases, the obligation to inquire, is.'put upon the ground, that the purchaser was acquainted with a fact, in relation to the very property he was about to purchase, sufficient to induce a belief that other persons had a claim upon it. Hill v. Simpson, 7 Ves. 152.

This was a case where an executor, within a month after the testator’s death, assigned to certain bankers, the assets of the estate, as a security for a debt then due to them from the executor, and for other advances which they were to make for him, by taking up his bills then actually outstanding. The bankers knew that the property assigned to them was part of the assets of the estate; but they confided in the representation of the executor, that the will had given him every thing, subject only to ^20. and a few small legacies.

This representation was false, in a material part, which the bankers would have seen, had the3r looked at the will. The master of the rolls said, ■ — “If they had looked at the will, instead of taking his representation, they would have seen that he had no right to assign the stock, till the claims under that will were satisfied; and that some of those claims were not satisfied. Common prudence required, that they should look at the will, and not take the debtor’s word as to his right under it. If they neglect that, and take the chance of his speaking the truth, they must incur the hazard of his falsehood.

The rights of third persons must not be affected by their negligence. I do not impute to them direct fraud, but they acted rashly, incautiously, and without the common attention used in the ordinary course of business.

It was gross negligence not to look at the will, under which alone a title could be made to them.” We thus see, that, in this case, the obligation to mak - inquiry, is put upon the ground that the purchasers had notice of a will, “under which alone a title could be made to them.” So, in like manner, it has been decided, “in cases almost innumerable, that “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; for it was crassa negligentia that he sought not after it: and for the same reason, if a purchaser has notice of a deed, he is bound by all its contents.” I need not multiply references on this head, but will mention Biscoe v.

Earl of Banbury, 1 Ch. Ca. 287; Moore v. Bennet, 2 Ch. Ca. 246; Tanner v. Florence, 1 Ch. Ca. 259; Hall v. Smith, 14 Ves. 426. But it is manifest, from all the cases, that a deed, the notice of which will be sufficient to put a purchaser upon inquiry, must be one, which the purchaser knew, or had good reason to believe, gave some interest in, or power over, the property which is the subject of the purchase.

And, indeed, it would be contrary to the first principles of natural justice and equity, that the mere knowledge of the existence of a deed, should impose on him the obligation of looking into it, when he neither knew, nor had reason to believe, that that deed had any bearing on the subject of his purchase. After this tedious review of the cases relied upon for the appellees, let us inquire, whether there is to be found, in the case before us, either of the grounds, which were held, in the cases referred to, sufficient to put the purchaser on an inquiry? In Taylor v. Stibbert, in Daniels v.

Davison, and in Smith v. Low, the obligation to make inquiry, was placed on the ground, that the purchaser knew that the possession of the estate was not in the vendors, but in other persons claiming adverse interests. In Hiern v. Mill, it was put on a ground which, in England is deemed even stronger; namely, the fact that the purchaser knew the title papers were not in the possession of the vendor, but of another person. Neither of these circumstances is to be found in this case; for here, the vendor was in possession of the land, claiming under grants of the commonwealth, which he exhibited.

In all the other cases, the obligation to inquire, is placed on the ground, that the purchaser had notice of a “deed or will on which the title depended, or under which he had reason to believe some body else claimed an interest, or which gave some interest in, or power over, the estate. Does the principle of these cases apply to that before us? David Erench knew that The Loyal Company had surveys scattered through that part of the country, and that they had many surveys in that neighbourhood.

But what reason had he to believe, that any of those surveys interfered with the land which was in the possession of John Erench? There is not an intimation in the record, that he had knowledge that John Erench- had ever held under the company, or that the company had ever claimed this land as being covered by any of their surveys. The facts in the record are not only insufficient to prove such knowledge in David Erench, but they are calculated to shew, that he had reason to believe they laid no claim to this land.

John Erench was in possession, claiming it under two grants, one of which was fourteen, the other twenty-nine years old. Lei it be remarked, that the 973 surveys of the company, contain less than 300,000 acres of land, and that they are scattered over a territory containing more than five millions of acres. The lands covered by their surveys bear, therefore, a very small proportion to the immense quantity of waste and unappropriated lands in that extensive region, thrown open to adventurers, by the statute establishing the land office.

Under these circumstances, the mere fact that John Erench’s patents were founded on land office treasury warrants, was sufficient to raise a presumption, that they did not embrace the lands of The Loyal Company; not because those lands were not liable to location, but because it is to be presumed, that adventurers, in locating their warrants, would prefer to locate them where there was no opposing legal claim. Again, the company might have prevented the emanation of grants for their lands, either by caveats or suits in chancery. Lyne v. Jackson, 1 Rand. 114.

Or, if any cause had prevented a resort to either of these remedies, they might, at any time afterwards, have filed bills in chancery to set the patents aside, and subject the lands to their lien. Their failure to *take any of these steps, was well calculated to induce a belief, that they had no claim to the lands patented to John French, although they “had many surveys in the neighbourhood.” I am, therefore, of opinion that David French was under no obligation to look into the surveys of the company; and, consequently, that he had not even constructive notice of their equity.

Nor can I think, that the case of the appellees is helped by the pendency of the suit in the court of chancery, Pendleton v. Patton &c. This court decided in the case of Newman v. Chapman, 2 Rand. 93, that a lis pendens is not notice. And even if it were notice, it would operate merely as to those who were purchasers pendente lite from a party to the suit. John French was no party to that suit. I think the decree should be reversed, and the bill dismissed. BROOKE, 'J.

The first inquiry in this case, is as to the effect of the decision of the court of appeals in 1783, on the entries and surveys of The Loyal Company. That decision was made in pursuance of the 10th

section of the act of 1779, for the adjusting and settling the titles of claimers to unpatented lands &c. under which provision the court was to decide, not only on the validity of surveys, but entries also. I think it very clear, upon the wording of the section, that the effect of the sentence of the court was limited to the establishment of the entries, as well made on the council books, and of the surveys, as well made on the entries. To give it a greater effect, would be to put the entries, as well as surveys, upon higher ground, than could have been intended by the legislature.

It was to ascertain whether the entries and surveys had been properly made under the then existing laws on that subject, and not to give them any greater validity than the law gave them, that this provision of the statute referred the matter to the court of appeals. I believe, at an early period of the court, some countenance *was given to a contrary construction of the section, but whatever may have been the first impressions of the court, I think it impossible upon a fair construction of the section, especially in connection with other provisions of the land laws, to give it the construction contended for.

In Ross v. Keewood, 2 Munf. 141, it was decided by the whole court, that lands claimed by The Loyal Company under entries in council and surveys, were still vacant and unappropriated lands, and of course subject to entry and survey under a treasury warrant until patents were obtained on such surveys. The entries in council, and the surveys of The Loyal Company made in pursuance thereof, cannot claim a higher rank under the several statutes in reía tion thereto, than a treasury warrant entered and surveyed on the terms prescribed by the general land law of May 1779.

The terms on which those entries of the company were recognized, and confirmed by the court of appeals, placed them on no higher ground; and to have placed them on higher ground, would have changed the whole policy of the land laws for the settlement of an extensive region.

The statutory provision on which the appellees rely, expressly excepts from its confirmation, the entries and surveys of the company that had at that time been caveated, and cannot be intended to exempt those surveys of the company not then caveated, from the operation of the caveat law: the object was to place them on the footing of other entries and surveys, and to give to the company the right to caveat interfering surveys.

The surveys of the company amounted to more than nine hundred, interspersed through an extensive region of country, the settlement of which as early as practicable, was deeply interesting to the commonwealth. To have permitted the company to hold up its surveys for an indefinite time, would defeat the great object of the land laws; which was, to have all surveys carried into grant as early as possible, and subjected to the payment of taxes.

And for this purpose also, and to put an end to all controversies respecting titles to unappropriated land, the court of caveat was created, and made competent to decide all controversies between parties ^claiming grants to waste and unappropriated lands, either on the ground of prior entry or survey, or of fraud in the opposing party, or on any other ground of law or equity; and this without an appeal to any other tribunal.

Until the survey was carried into grant, actual or constructive notice of prior entries or surveys, and every ground of superiour right to a patent were to be investigated and adjudged in the court of caveat. After the surveys were carried into grant, unless some sufficient excuse was alleged and proved for omitting to enter a caveat against the grant, all the grounds for relief before enumerated, were unavailing.

The commonwealth was not to be affected by them; her policy was not to be interfered with, or to be affected by, the acts or omissions of parties, contending for priority of right to grants for the lands they had entered and surveyed. The party who had pursued the provisions of the law, and obtained a grant, was entitled to the land. On these principles, the cases of Johnson v. Brown, 3 Call 259, and Noland v. Cromwell, 4 Munf. 155, were decided in this court.

And I may here remark, that I have heard one of the ablest counsel and statesmen express deep regret, that a like construction of our land laws had not been given by the courts of his state. A different construction in those courts, may account for the seemingly different construction given by the supreme court of the U. States, in a case from that state, Taylor v. Brown, 5 Cranch 234.

The case before us, then, is not to be treated as a case in which the subject on which the Hen is claimed by The Loyal Company, had taken the character of property in the company by grant, in which the commonwealth had no interest: it must be considered on the sound policy of the land laws for settling an extensive region for country, and not on the general principles of equity applicable to ordinarj' cases. Proceeding on this view of it, the defendant must be admitted to hold the legal title to the land which is sought to be charged with the equity of the plaintiffs.

A great effort was made by counsel to liken this case to that of Camm *v. Norvell, 6 Munf. 236, and a higher compliment was paid to my opinion in that case, than it merited: but that was not a controversy for waste and unappropriated land. In that case, there had been a patent granting the lands to persons not before the court, long before the grant to Norvell on which the controversy turned; and though the land had lapsed after the prior grant to the Christians, it was not waste and unappropriated land, on which a treasury warrant calling for waste and unappropriated land, could be laid.

That land, having been granted by the commonwealth, though it afterwards lapsed, was not subject to location on a treasury warrant, was afterwards decided by the whole court (except myself, who did not sit) in the case of Whittington v. Christian, 2 Rand. 353. Not so the land in the case before us: the entries in council, and the surveys made thereon by the company, were not equivalent to a grant from the commonwealth. It was still waste and unappropriated land, when John French entered it on a treasury warrant. This, I think, must be admitted on the sound construction of the land laws.

It would be monstrous, if it were not so. A license to the company to retain more than nine hundred surveys dispersed over an extensive country, for the purpose of securing its composition money &c. while the commonwealth was to receive no taxes (the lands being ungranted), cannot be deduced from the laws, or the rights of the parties in this controversy.

Suppose these surveys had been on treasury warrants, instead of council entries, and that the survey in question had been assigned to James Johnston, on the terms on which the land in question was surveyed for him by the company, and John French had been permitted (no caveat being entered against him) to obtain a patent; it could not be insisted, that he could be affected by any stipulations of the company with Johnston. In such case, it could not be contended, that he could be affected by any claim upon Johnston to which he was subject.

Rven if John French had actual notice of such an equity, he would not be effected by it in a court of equity, nor those claiming under him. He *had under the laws a right to enter and survey the lands if the company would not carry their survey in the name of Johnston, into grant. I know, it has been said, in M’Clung v. Hughes, 5 Rand. 453, that actual fraud practised by the patentee was a ground for equity, though no sufficient excuse was alleged for failing to file a caveat; but I do not consider that decision as overruling the cases of Johnson v. Brown, and Noland v. Cromwell.

In the first of those cases, the whole court consisting of five judges, (for though judge Roane was absent when it was decided, he is said by the president to concur in the decision) decided, in the words of the president, that if Johnston had such an equity as would, on a caveat prior to the grant, have entitled him to a preference, it would be no ground for a bill to set aside the patent, unless it had been alleged and proved, that he was prevented by fraud or accident from prosecuting a caveat.

On these grounds, he says, this court has sustained bills of this sort, as if on a caveat; clearly shewing, that that case was not the first in which the principle had been settled. In the other case, Noland v. Cromwell, there were three judges to two. And then came the case of M’Clung v. Hughes, in which there were three judges to one; that is, there was an additional judge to the minority of two in the case of Noland v. Cromwell. It is not then on slight grounds, that I have said that the case of M’Clung v. Hughes did not overrule the prior decisions of this court, which were made by seven judges to three.

The actual fraud, if there was any in the present case, was as proper for the court of caveat, and that court ought to have been resorted to, from which there was no appeal. It is said, that the company could not have caveated the patent to John French, as their survey was in the name of Johnston. But I think the company having the whole control of the survey, though made in the name of Johnston, might have caveated the grant to John French, in the name of Johnston, if not in their own.

I have no doubt, if not within the letter of the provisions of the statute giving the remedy by caveat, the case is within its spirit, and *the company might, in substance, have made the affidavit required for obtaining a caveat. Having failed to caveat the grant to John French, and having alleged no excuse, they are not entitled to relief in equity, if they were claiming the land; nor can their case be made stronger by claiming a Hen on the land only. But suppose the company not in a condition to caveat, this was no fault of John French, the grantee.

His right to a patent under the law, could not be affected by the acts or omissions of the company. His conscience was not affected; it was the settled law of the country, that prior entries and surveys, until carried into grant, were no obstacle to any person who took the legal steps to get a patent for the same land. It was the interest of the commonwealth that it should be so, or those holding survej's would never take out patents and pay taxes. But what is the lien now claimed by the company?

If the land must be considered as waste and unappropriated land, until a patent is issued, according to the decision of this court in Whittington v. Christian, could Johnston or the company holding only the survey, cloath it with an equity, or subject it to any contract, which would affect the right of the commonwealth to grant it to John French, who dealt for the land only?

If so, upon the principles of equity, the commonwealth must be liable to the patentee, against the express law of 1748, that the commonwealth will only be responsible to a party who loses the land granted, at the rate of two dollars the hundred acres, and in no other manner. But no such pretension can be insisted on. Until the land was patented, it was subject to no contract affecting it: it was not subject to the debts of the holder of the survey. There are numberless cases in which surveys were sold by one party to another, and this equity of vendor against vendee was never thought of.

It could not be extended on an elegit, or subjected in any manner to the contracts of the holder. Until a patent issued, it was not property; for no one had an exclusive right to it, which is of the essence of property. *The effort, then, to place the surveys of the company in a higher rank than surveys on treasury warrants, must fail. The clause in the statute of 1779, upon which the plaintiffs rely, condemns the pretension.

It recognizes the surveys, except those that had been caveated; but if they were equivalent to a grant of the land, the exception could not have been made, since the object of a caveat is to prevent the issuing of a grant, not to set one aside. If then the plaintiffs were claiming the land, they could not succeed, and claiming a lien on waste and unappropriated land, they must fail. On these grounds, I think the decree ought to be reversed, and the bill dismissed.

But suppose the survey of the company was placed on higher ground by the decision of the court of appeals in 1783, than surveys on treasury warrants; still, the legal title remained in the commonwealth ; and though it was admitted, that it resided there for the company, yet having been granted to John French by the commonwealth, David French, who claims under him, is not to be affected by the claim of the company, unless it be shewn that he had notice of the claim, before he paid his purchase money. Having the legal title, upon no principle of equity can he be affected by it.

That the legal title was in the commonwealth, is admitted by the bill in the high court of chancery, injoining the register from issuing grants to those holding surveys, until they paid the composition money &c. By the agreed case, it is admitted, that he had not actual notice of this equity. The facts of which he was informed, as admitted in the agreed case, could not have the effect to put him on inquiry as to this equity. If he were now in a court of caveat, and the right to a grant from the commonwealth was in question, they might have that effect. I think they gave no constructive notice to David French.

On this point, I refer to the cases cited by judge Cabell, and to his application of them to the facts relied on in the agreed case. As to the lis pendens, that can never be considered as notice; its operation on purchasers of any of the subjects in ^'controversy, is of an entirely different character.

It is true, it is called a notice by the gravest judges; but its whole object is to keep the subjects in controversy within the power of the court, until the decree is entered, and to prevent further suits for the same subjects; which must be the case, if the purchaser pendente lite was permitted to take the subject out of the power of the court. A lis pendens, to have the effect contended for, must be judiciously and ditigently prosecuted. In this case, the lis pendens appears to have commenced in 1799; when, and whether any subpoena was issued, does not appear.

The order injoining the register from issuing patents, was not entered until 1821, long after John French had obtained a patent for the land. Until this order, the lien now claimed (Johnston being no partj') was not one of the subjects in controversy. Until the order injoining the register not to issue patents to any of the holders of surveys, the lien on this land was not a subject of controvers3r in that suit» However that may be (for the record is very imperfect), I think the lis pendens, prosecuted as this was, could not affect the rights of David French, the appellant.

As to the presumption of satisfaction of this lien after the lapse of more than fifty years, I do not think it is repelled by the fact that no patent was to issue until it was discharged, and the fact that no patent was issued in this case in behalf of the company. The lien may have been discharged by Johnston or Payne, though they neglected to take out a patent. The allegation in the bill, that the company had successive agents to collect their dues, corroborates the presumption of payment, and is of full as much weight as the fact that no patent was issued on behalf of the company.

Both upon the policy of the land laws, and the general principles of equity, I think the decree must be reversed, and the bill dismissed. TUCKER, P. .David French, the appellant, in the year 1829, purchased of John French the lands sought to be charged in this suit with the demand of the appellees, and ’-paid the purchase money in full. The appellees asserting a lien upon those lands, the appellant defends himself upon the ground, that he holds the legal title, and purchased without notice of the rights of The Boyal Company. The validity of this defence is to be inquired into.

John French, from whom David French made his purchase, procured patents from the commonwealth in 1800 and 1815, which cover the land in question. But it is contended by the counsel for the appellees, that those patents are null and void, because they comprehended lands which had long before been appropriated to The Boyal Company, by an order of council followed up by survey and confirmed by legislative enactments. That the patent of the commonwealth passes the legal title to the patentee, cannot, as a general principle, be denied.

The whole structure of our land law, the scheme for disposing of the public domain, and the course of our adjudications, place this matter beyond doubt. “Any person may acquire title to so much waste and unappropriated land as he shall desire to purchase,” upon the terms and conditions prescribed by law : and when he has duly taken the preliminary steps pointed out by the land law, he is entitled to receive a grant from the register, upon which shall be indorsed that the party hath title.

In the construction of this statute, the courts have uniformly held, that a prior entry and survey do not amount to such an appropriation of the land, as will render void a patent obtained by a junior locator. That this was a correct

interpretation, cannot, I think, admit of doubt. The provisions of the statute not only contemplated the possibility of interfering locations, but provide also a

summary tribunal for deciding between the inchoate rights to unpatented lands. The caveat court was established expressly for the purpose of determining those litigations about the right to a patent, which it was easily foreseen must inevitably arise. There was no provison in the statute declaring void all patents issuing upon entries and surveys, which interfered with previous entries, nor was the arduous and impracticable duty devolved upon the register, of ^deciding between conflicting claimants.

That task was imposed upon the courts; and it has by them repeatedly been decided, that where the party who has the prior entry and survey has failed to resort to his caveat, without an adequate excuse for the omission, his remedy is gone; the junior locator who holds the prior patent, has the better title at law, and shall not be disturbed in equity. The validity of the patent of the junior locator, is thus distinctly admitted, although it covers land which may have been appropriated by prior entry and survey. 5 Rand. 478, 479, 480. Upon general principles, it could not have been otherwise.

A warrant, entry and survey, like contracts to sell and convey, give but an equitable right. The warrant is the first step towards procuring a grant; but before an entry with the surveyour, there is not even an incipient right to any particular parcel of land, the entry is the first legal step towards the acquisition of title to any specific tract. The survey is the next progressive legal step towards the acquisition: but it is the grant only which confers the legal title. 3 Call 267. The warrant, entry and survey, authorize the proprietor to demand the grant; but do not, in themselves, confer it.

Until it is consummated by the grant, he has but an equity; 7 Wheat. 1, 6. The legal title remains, therefore, in the commonwealth, until the emanation of the patent shall have passed it to her grantee. In the case, then, of two adventurers, if the prior locator has permitted his adversary, though junior, to obtain a patent, that patent will vest the legal title in him, subject, indeed, to examination in a court of equity, but of unquestionable validity in a court of law. Por, it is issued by the r

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