JAMES GALLOWAY, JUNIOR, APPELLANT
v.
HENRY R. FINLEY AND DAVID BARR, APPELLEES.
Supreme Court of United States.
*270 The case was submitted to the Court on printed arguments, by Mr. Corwin and Mr. Mason for the appellant; and by Mr. Fetterman for the defendants.
*294 Mr. Justice CATRON delivered the opinion of the Court.
The bill alleges that complainant, on the 11th of March, 1835, purchased from Henry R. Finley, and David Barr, who acted for himself and wife, the sister of defendant, Finley, the moiety of two tracts of land lying in the state of Ohio; one for one thousand two hundred, and the other for one thousand acres, founded on a warrant for two thousand six hundred and sixty-six and one-third acres, obtained by Charles Bradford, as an officer in the revolutionary war, in the Virginia continental line. That Finley, and the wife of Barr, were the heirs of their mother; who derived by descent a moiety of the lands from her father, Charles Bradford.
Galloway agreed to pay eight thousand dollars for the moiety of the two tracts, part in hand, and the balance by instalments; the last of which was to fall due on the first of January, 1839. And Finley and Barr, covenanted with complainant to convey the moiety of the lands contracted for, in fee, so soon as he paid the purchase money.
It is also alleged Finley and Barr promised, at the time the agreement was made, to forward from Pennsylvania, where they resided, to Galloway, who resided in Ohio, the title papers, and the power of attorney, authorizing Barr to contract for his wife.
*295 That after the date of the contract, the wife of Barr died, a minor, intestate, of course, and without issue.
As grounds of relief, it is averred that the title papers were not forwarded, nor the power produced. But, principally, that after making the contract, the complainant discovered Charles Bradford, the grantee, had died in 1789; and that the lands were entered, surveyed, and granted in his name, in 1793, and 1794.
Finley and Barr, by their answer, admit the contract to have been made as stated; deny that title papers were to be furnished by them; admit they promised to forward the power, and the death of Mrs. Barr, but allege respondent Finley was her sole heir; admit Charles Bradford died in 1789, and that the lands were entered and surveyed in 1793, 94, and afterwards patented in his name.
The respondents, however, mainly rely for their defence on the fact, that, on the 26th of September, 1835, the complainant, Galloway, entered the two tracts of land, the moiety of which was agreed to be conveyed, in his own name, and, as they allege, without their knowledge, and with the fraudulent intent of depriving the heirs of Bradford of it; and thereby to render it impossible for them to comply with their contract. And the defendant, Finley, for himself, and as heir of his sister, offers to comply with the agreement.
It is urged, the entries, surveys, and grants in the name of Charles Bradford, after his death, were void. Suppose the fact to have been so when the agreement of March, 1835, was made, and that the lands were subject to appropriation when Galloway entered them, in September, 1835, then the rule applies "That if a vendee buys up a better title than that of the vendor, and the vendor was guilty of no fraud, he can only be compelled to refund to the vendee the amount of money paid for the better title." Learey v. Kirkpatrick, Cooke's Ten. Rep. 211; Mitchell v. Barry, 4 Hayne's Ten. Rep. 136. In reforming the contract, equity treats the purchaser as a trustee for the vendor, because he holds under the latter: and acts done to perfect the title by the former, when in possession of the land, enure to the benefit of him under whom the possession was obtained, and through whom the knowledge that a defect in the title existed, was derived. The vendor and vendee stand in the relation of landlord and tenant; the vendee cannot disavow the vendor's title. 3 Peters, 48; 2 Marshall's Ky. Rep. 242; 5 Yerger's Ten. Rep. 398. This case furnishes a fair illustration of the propriety of the principle. Charles Bradford was a non-resident; that he had died before the *296 lands were entered and granted, was unknown to Galloway until he obtained the information through the heirs of the grantor, after the sale; for forty years the title had been deemed valid, and the defect was exposed by the production of his will, and the endorsements of its probate, in 1789. The fact, thus ascertained, was confidential in its character as between the parties to the contract; and Galloway could not be permitted to avail himself of it whilst standing in the relation of a purchaser, to defeat the agreement: under the most favourable circumstances, he could only have it reformed, and the amount advanced to perfect the title deducted from the unpaid purchase money. But this is not the attitude the complainant assumes by the bill first filed. He claims an entire rescission.
On the 20th of May, 1836, pending the suit, congress passed an act, 4 Story's Ed. 24, 36, to give effect to patents issued to deceased persons; which provides, "that grants issued to persons who had previously died, should enure to and become vested in the heirs of such deceased patentee, as if the same had issued to the deceased person during his life; and that the provisions of the act should be construed to extend to patents for lands within the Virginia military district, in the state of Ohio."
That the legal title to the lands patented in the name of Charles Bradford, vested in his heirs by force of the act, cannot be denied. 9 Cranch, 43; 2 Wheat. 196. Grant, then, all that is claimed for the complainant; still his entries of September 1835, conferred a mere equity, and the defendant, Finley, holds the fee: and the complainant, by raising the warrants from his entries, will have sustained damage only to the amount of the officer's fees: or, take it the other way, and compel Finley and Barr to compensate for the warrants, then of course they would be entitled to them, and the effect be the same. Had Galloway's entries been valid, and had he acted in good faith as regards the defendants, by giving notice of the means used to perfect the titles; and had he sought by the bill, what in equity and conscience he was entitled to as compensation, a court of chancery could not have refused relief: but he invokes aid to defeat the entire contract, and nothing less, in sanction of acts intended, from his own showing, to deprive the complainants of their money and lands; thus assuming an attitude before the Court, and asking its active aid, under circumstances, that, were he a defendant, and set up like claims, it would be difficult to say he could be compensated: as a complainant, he surely cannot be heard.
*297 Then as to the loss of the warrants and fees: it having been the clear duty of the appellant to enter the lands for the benefit of his vendors, and only to have demanded compensation for expense and trouble: and he having entered for himself; a court of equity must decline to assist him, (in the language of Mr. Justice Story, 2 Story's Eq. 8,) to escape from the toils which he has studiously prepared to entangle others: it must be left to him to get rid of his entries and secure the benefit of his warrants. The act of congress having conferred on the defendant, Finley, the legal title, equity will not take from him his legal advantage. 1 Wheat. 196; 2 Story's Eq. 88; Sugden on Vendors, 365, 375, 7th ed. If Finley has the title, and can perform the contract on the 1st day of January, 1839, when the last payment falls due, this is all the law can require of him. Yet it is an established rule in equity, that where the vendor has not the power to make title, the vendee may, before the time of performance, enjoin the payment of the purchase money, until the ability to comply with the agreement for title is shown; Royer v. Patton, 1 Ten. Rep. 258: Ralston v. Miller, 3 Randolph's Va. Rep. 44; but then the court will give a reasonable time to procure the title, if it appears probable, on reference, that it may be procured. Frost v. Bronson, 6 Yerger's Rep. 36, 40.
By an amendment to his bill in October, 1836, the complainant sets forth his entries of 1835, and the surveys thereof, and again prays a rescission of the contract of March, 1835: "or, that if the defendants at the date of the contract, had a good and perfect title to the premises they contracted to convey, and authority to perfect their agreement; then the complainant is ready, and tenders a completion of the contract."
The only allegation in the amended bill, varying the case is, that at the time the agreement was entered into, complainant was ignorant that the patents for the lands had been made in the name of a person that was dead. The respondents admit the fact: but state that complainant derived his first knowledge of its existence from a sight of Charles Bradford's will, after he made the agreement. It seems respondents were at that time equally ignorant, not knowing, or having overlooked the dates of the entries and patents. If complainant had not entered the lands, then he would have been entitled to a rescission of the contract; had no title been acquired by the defendants, through the medium of congress.
The principal ground relied on for relief being, that the patents *298 were void, because made after Charles Bradford's death; we will proceed to examine it. That a patent thus made, passes no title, is true in the nature of things; there must be a grantee before a grant can take effect; and so this Court held, in Galt v. Galloway, 4 Peters, 345; and M`Donald v. Smalley, 6 Peters, 261. Yet this is not the question presented; it is, whether the appellant was permitted to enter the lands purporting to have been granted to Charles Bradford, notwithstanding his death? And this depends upon the act of 1807, ch. 34, and others, continuing the provision up to the date of Galloway's entries. The time for locating Virginia military claims for services on the continental establishment, between the Little Miami and Sciota rivers, had expired; and by the act, congress extended the time. But on reopening the land office, the following exception was introduced: "Provided, That no locations as aforesaid, within the abovementioned tract, shall, after the passing of this act, be made on tracts of lands for which patents had previously been issued, or which had been previously surveyed; and any patent which may nevertheless be obtained for lands located contrary to the provisions of this section, shall be considered null and void."
It is insisted, for appellant, that the section had reference to imperfect, and not void titles. The legislature merely affirmed a principle not open to question, if this be the true construction. Had an effective patent been issued, the government would not have had any title remaining, and a second grant would have been void of course. Something more, undoubtedly, was intended than the protection of defective, yet valid surveys and patents; this is not denied, but the argument insists only irregularities were intended to be covered.
It is difficult to conceive how an irregular patent could exist, unless it passed no title. We will not perplex the decision with supposed cases of irregular surveys, but examine the act of congress, and ascertain its effect as regards the grant in the name of Charles Bradford. It is fair upon its face, and we will not look behind it for irregularities. 7 Wheat. 214. The death of the grantee is an extrinsic fact, not impairing the equity of the claim as against the government. His heirs had an interest in common in the military district, with all similar claimants. The truth of the position is unquestionable. Jackson v. Clarke, I Peters, 635; Neal v. E.T. College, 6 Yerger's Rep. 79, 190. The defects, of all others most common, in the military grants of Kentucky, Tennessee, and Ohio, were, where the soldier had died, and the entry, survey and grant *299 had been made in the name of the deceased. In his name the warrant almost uniformly issued; who the heirs were, was usually unknown to locators, and disregarded by the officers of government when perfecting titles. In Tennessee and Kentucky, provision was made at an early day, that the heir should take by the grant; and why should we presume congress did not provide for the protection of his claim to the lands purporting to have been granted; when the legislation of the federal government was, of necessity, controlled in this respect, by the experience of members coming from states where there were military lands? The statute is general, including by name all grants, not distinguishing between void and valid; and the plainest rules of propriety and justice require that the courts should not introduce an exception, the legislature having made none. 1 Peters, 636, 638; Martin & Yerger's Ten. Rep. 361.
But it is insisted this Court did make an exception in the cause of Lindsey v. Miller, 6 Peters, 666; and which should be followed. What was that case? A grantee from the government sued a defendant in ejectment, claiming, in the military district of Ohio, by virtue of an elder entry and survey; and the question was, whether the junior patent to plaintiff was void, because made contrary to the act of 1807. The defendant's entry, by mistake, had been founded on a warrant for services, not in the continental line, but in the Virginia state line; a claim not subject to be satisfied in the Ohio military district. 7 Wheat. 1. The location and survey were therefore mere nullities; and the Court very justly held, that congress did not, by the act of 1807, contemplate such claims, and that they were not within the purview of the act. But had the claimant been entitled to the satisfaction of his warrant in the military district, in common with others, for whom the government held as trustee; the case might have been very different, even had the entry and survey been invalid. Congress had the power in 1807, to withhold from location any portion of the military lands; and having done so, in regard to that previously patented in the name of Charles Bradford, the complainant, Galloway, had no right to enter the same. His location being void, it follows, the act of 20th May, 1836, vested the title to a moiety in the defendant, Henry R. Finley, exempted from any influence of the entries.
The decree of the circuit court is therefore affirmed, and the bill ordered to be dismissed.