Burtis Ringo, James Elliott, John Collins, John Elliott, James Lawrence, Thomas Watson, Athey Rowe, George Muse, Sen. and George Muse, Jun., appellants v. Charles Binns and Elijah Hixon, Stephen Hixon, Noah Hixon, John Hixon, William Hixon and Timothy Hixon, Heirs of Timothy Hixon deceased, 10 Pet. 269

Mr Justice Wayne delivered the opinión of the Court. After stating the case, he proceeded.: It is contended that the decree is erroneous and should be reversed. In behalf of Ringo it is urged that he has a prior legal title, unaccompanied by any equity of the complainants. . The legal title must rest upon entry, survey, registry and pateqt; and it will be admitted that a legal title cannot be in any one until a patent has been issued ; and further, that all of those requirements to make a complete title, shall have been done without fraud, to give to a' patentee a valid title.

If, then, in the course of carrying his surveys into grant, and before a patent upon them was issued to him, Ringo, under a notice to caveat the application of the complainants to the general assembly of Kentucky, for leave to bring in a bill to authorize. a copy of these original surveys for two thousand acres to be received and registered, that a patent might be issued to them; acknowledged their equity to be superior to his immature legal rights, and expressed his willingness tliát it should be affirmed by legislative enactment; it being’done by the legislature; its act nullified his surveys, and the latter could not be afterwards any foundation for a patent of the same land to himself.

The complainants’ entry and survey were raised by the legislature into a right to the exclusion of every right of Ringo ; and any patent afterwards issued to him, upon his entries l and surveys, is a nullity.; The legal title of the complainants does not rest upon the statute for granting lands, but upon

an act of the legislature directing an unregistered survey, inoperative by the lapse of time, to be registered, and a patent to be issued upon it. - When this act was passed in favour of the complainants, the land covered b.y the survey, under the entry of the 5th of August 1783, became ex cepted from the mass of ungranted'vacant land ; and the complainants acquired rights in it which could not be defeated by a patent upon Ringo’s entry and survey.

This view of the case makes it unnecessary for us to consider the objections to the decree growing out of Ringo’s transfer of his entries and surveys to the. complainants ; namely, that there was no consideration, paid, as agreed to be paid, for his claim ; if there was, that it was inadequate, and that it was obtained by fraud.

In truth, at the time that paper was executed, he had no legal or equitable interest in the land to convey and be transferred, no more than he was conscientiously bound to do ; as he confessed and had so declared to otliers when he was making his surveys^ that they were not made with an intention to appropriate them to himself, but to enable him to make a division of the land between the complainants.

But how forcibly does the equity of the complainants prevail over any claim of Ringo, when the latter is viewed as their agent at the time he made his entry and surveys upon the land, which he had undertaken to assist in dividing between them. It is said, that an unregistered survey gave to them no equitable right in the land; and that.Ringo being only an agent for the special purpose of dividing the land, he could rightfully enter and survey it for himself when he ascertained the defect in the titljfe of the complainants.

The proposition of a want of equitable-right in the complainants, is true as against the state : for the time within which the survey should have been returned and registered before a grant could issue had expired ; and the land had fallen into the general mass of ungranted land liable to entry, survey and grant upon treasury land office warrants.

But, the mistake in the argument is, in "pplying the rights of the state in the land, to a right in Ringo, obtained when he was admitting to the complainants his agency, for them ; and making acknowledgements of their title to others, to enable him inore successfully to secure by his artifices a title in the land to himself. On the same day Ringo wrote two letters, one to Littlejohn and the other to Charles Binns.

In both he acknowledges himself to be the agent of the complainants : but, by the tenor of his letters to Binns, he conceals from and misrepresents t.o Littlejohn, and under the pretence of a friendly wish to save -Binns from unnecessary expense, he tells him that as no survey had been made and no grant had existed, that he need not go to any expense about it, as it appears no grant can now issue; that he will be wrong to think there was no better right to the land. These letters were written two days after he had commenced, measures to secure the land for himself.

The equity of the complainants, therefore, over any right of Ringo, does not arise from the former having had, at' this time, any legal title to the land; but from Ringo’s having practised an artifice upon the complainants, whilst he was their agent/to prevent thenfi from curing the defect in their title, that he might deprive them of property which at the same time he acknowledged to be theirs.

He was guilty of deceitful practices and artful devices, contrary to the plain rules of common honesty and fair dealing between men ; and could not acquire a title to the land, valid against the equity which he had acknowledged to be .in the complainants. It is unnecessary to pursue this point further.

The decree of the court directing Ringo to convey, must be affirmed: and the proposition laid down by this court is, that if an agent discovers a defect in the title of his principal to land, he cannot misuse it to acquire a title for. himself; and if he does, that he will be held as a trustee holding for his principal. In regard to the tenants, the decree of the court must be reversed. They were made parties by an amended bill.

In the original bill the complainants charge that the land had been occupied for ten or twelve years by tenants of -Binns, and in the amended bill they are said to be tenants in possession of the land claimed by the defendant. Nor are they charged with, fraud in either. • It is not necessary, therefore, to consider the grounds urged in the argument of counsel for a reversal of the decree against the tenants, if a point arises upon the pleadings decisive of their case.

Not having, been charged with fPaud on the bill, or placed by it in any such relation to the land or to the complainants, no case exists for the interference of a court of equity. Whether they occupied the lands as the tenants of Binns, or as declared in the original bill, or as tenants in possession under another; the complainants are to be supposed to have their remedy at law for the' recovery of the land until they shall charge and show' tha’t the tenants obtained, and retain possession, in contravention of-some equity subsisting, between them and the complainants.

The tenants are not so charged, nor is there any thing in the record from which such a conclusion can be drawn. • They are merely shown to be in possession of parts of the original survey of two thousand acres, which was résurveyed by Ringo; and it is probable they hold under him; but there is no proof that they were parties to the fraud which he practised upon the complainants.

This point does not appear to have been made in the hearing in the court below, nor was it urged hrargument in this court; but-it is obvious in the pleadings, and must be noticed by us: it is sufficient for the reversal of so much of the decree as relates to the tenants; and it will be directed with permission to the complainants to amend their bill, if they shall please to do so.

It was also urged that the decree should be reversed, on the grounds that there was no proof showing the complainants, the Hixons, to be the heirs of Timothy Hixon, and that the will of Timothy Hixon showed that the complainants should have claimed as devisees, and not as heirs.

The decree being reversed as to the tenants; neither point.is material to them ;.and these objections cannot prevail against the affirmation of the decree as to Ringo, because the allegation in the bill of the complainants that the Hixons were the heirs of Timothy Hixon, is not denied in the defendant’s answers, and was therefore not a point put in issue by the pleadings.

Besides, the fact not having been denied by the answer, there are ample and frequent proofs in the record of Ringo’s admission that they were the heirs of Timothy Hixon, and of his acknowledgements of their equitable right in the land in that character.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Ken. tucky, and was argued by counsel; on consideration whereof, it is. ordered, adjudged and decreed by this court, that so much of the .decree of the said circuit court in this cause as directs the defendant Ringo to convey to the complainants be, and thé same is hereby affirmed-with costs, and that so much of the said decree as directs the tenants to convey to the complainants bé, and the same is hereby reversed: and it is further ordered and decreed by this court,., that this cause be, and the same is hereby-remanded to the said circuit court, with directions for further proceedings to be had therein, in conformity to the opinion arid decree of this court, and as to law and justice may appertain.