
    Hart et al. v. Gregg et al.
    1. The conveyance by a son of his expectancy in land, owned by his father, which would descend to him if he survived his father and the latter should die intestate owning the same, is the conveyance of a mere naked possibility not coupled with an interest, and passes no estate or interest in the land.
    2. Such a conveyance can not operate to defeat the grantor’s title, afterward acquired by descent, except by way of legal or equitable estoppel.
    3. If such conveyance contains no covenants of warranty, or recitals, and’ there are no acts of the grantor amounting to an equitable estoppel, he is not estopped from asserting an after-acquired titlo.
    4. The grantees under such conveyance, never in possession thereunder, can not, as such, or by way of estoppel, assert a title or interest in the land against one in actual possession under a legal title, though such title is, as against the grantor, his heirs, and assigns, fraudulent and void.
    Error to the District Court of Logan county.
    
      The plaintiffs below were the heirs of Stephen B. Hart, and one Samuel H. Ruggles, each claiming to own an undivided one-half of the equitable estate, in the land in dispute.
    It is averred, that one Archibald Gordon, a revolutionary soldier, was the owner of a Virginia military land warrant for two hundred acres of land, issued to him by the State of Virginia, July 19, 1822, in'consideration of his services as a soldier in the Virginia Continental line; that he located that warrant, and had the proper entry, survey, and plat made and recorded as early as March 29, 1823, at the land office in Chillicothe; and that said Gordon died, at a date not stated, leaving an only son, Archibald Gordon, his sole heir at law, who, on the 27th of June, 1827, by deed in fee simple, conveyed this land to one Stephen E. Hart. Hart died intestate, in 1865, leaving a widow, and said Margaret A., William II., Erancis B., and Mary C. Hart his heirs, to whom it descended, and who, in 1870, conveyed an undivided half to Jeremiah Hall, who, on the 5th of June, 1871, conveyed the same to plaintiff) Ruggles.
    It is further alleged, that in October, 1851, Daniel Gregg, defendant, with knowledge of the title under which plaintiffs claim, wrongfully obtained possession of Gordon’s warrant, survey, and plat, and procured the then surveyor of said district, one E. P. Kendrick, to write the word “ withdrawn,” on the margin of the record of said entry, and across said plat, without authority of said Gordon or of those now claiming under him, and with intent to defraud them, and for that purpose he located another warrant on the same laud,1 and has carried the same into patent, dated November 20, 1855, under which said Gregg arid his grantees, and co-defendants (who, it is alleged, take subject to plaintiff’s equity), have taken possession.
    It is also alleged, that said Gregg is the executor of Allan Latliam, who was the surveyor at the time of Gordon’s entry and survey,, and as such had possession of Gordon’s warrant and certificate of entry; that in 1871, demand was made .of the surveyor for this warrant and survey, with proper certificate, to enable plaintiffs to obtain a patent, which was refused, and that a like demand was made upon Gregg, in whose possession it is alleged these papers were, and that said Gregg wrongfully withholds said papers.
    For these reasons, it is claimed that the patent to Gregg is void, and that the title and possession of him and his grantees, is, as against plaintiffs, wrongful. The prayer is, that it be so adjudged, and that plaintiffs entry, survey, and equitable title thereby acquired bo perpetuated and also for general relief.
    The material allegations of the petition were put in issue.
    The case was heard upon the pleadings and evidence in the common pleas, and upon appeal, in the district court, with a finding and judgment in favor of the defendant on each trial.
    On the first trial, a bill of exceptions to the overruling of a motion for a new trial was taken, setting out all the evidence, thus presenting for review the whole case, as to whether the court erred in dismissing the plaintiffs’ action, on the ground that plaintiffs were not entitled to the equitable relief sought.
    
      Jeremiah Hall, for plaintiffs in error:
    The deed of the son, under which we claim, belongs to that class or kind of estoppels that pass after acquired titles (4 Kent, 98), and at the death of the father, leaving the son surviving him, the legal right or title to the location descended from the father to the son, his sole heir, and fed the estoppel and vested in the grantee the fee in the location, as of the day the deed was executed, as against the whole world. Douglas v. Scott, 5 Ohio, 195; Kinsman v. Loomas, 11 Ohio, 478; Potts v. Dowdall, 11 Am. R. 761; Herman on Estoppel, 233: Van Ransselair v. Kerney et al. 11 How.; Jackson ex dem. of Monroe v. Parkhurst et al., 9 Wend. 209 ; Jackson v. Carver, 4 Pet. 83.
    And it is no objection that the title was acquired by inheritance. Herman on Estoppel, 286.
    
      The evidence shows that Gordon’s location had not been abandoned. Galt v. Galloway, 4 Pet. 332; Moore v. Dodds, 1 Marshall, 140; Wallace v. Seymour, 7 Ohio (pt. 1), 156.
    The doctrine of notice does not apply to cases in the Virginia Military District, or, indeed, anywhere else, where the parties claim under distinct locations or original titles. McArthur v. Phœbus, 2 Ohio, 415.
    The location of Gregg and his patent are both therefore void. McArthur v. Gallaher, 8 Ohio, 512; Harlow’s Heirs, y. Thatcher, 18 Ohio, 48; Jackson ex dem. of Anderson v. Clark, 1 Pet. 628 ; Thomas v. White, 2 Ohio St. 548; Galloway v. Finley, 12 Pet. 264; McArthur’s Heirs v. Dun’s Heirs, 7 How. 262.
    The plaintiffs’ right of action is not barred by lapse of time. Hart v. Young, 3 J. J. Marshall, 180; Hill v. Bodly, 4 Munroe, 284.
    
      William Lawrence & Joseph H. Lawrence, for defendants:
    The plaintiffs must fail because,
    I. A conveyance by a son of an expectancy in the real estate of his parent in the life of. the latter is void.
    This is so on grounds of public policy, (a) to prevent the sacrifice of expectant estates; (6) on grounds of morality, decency, and honesty; (c) to prevent clouds on title passing by devise and descent; (d) and for the.safety of life, which requires that the law should give no inducement to those who are without the ties of kindred and of blood to the holders of projserty to desire their death, 1 Story Equity (Redfield Ed.), §§ 337a, 342, 343; Earl Aldborough v. Frye, 7 Clarke & Finnel, 436, 456; Kane v. Clough, 16 Am. Law Reg., 482 (August, 1877), Michigan Supreme Court.
    II. If any exception could be made, it could only be when the record affirmatively shows the sale to be fair, for a full consideration on a conveyance with warranty and with no circumstances of imposition. This is not shown.
    1. Authorities above — and 1 Hilliard on Vendors, 364, 365; 2 Kent Com. 475; 4 Kent, 261; 1 Hilliard on Real Property, 571, § 35, note; Earl of Portmore v. Taylor, 4 Simon, 182; 
      Gilson v. Jeyes, 6 Vesey, 266; Peacock v. Evans, 16 Vesey, 512; Gowland v. DeFaria, 17 Vesey, 20; Varick v. Edwards, 1 Hoffman, 395; Cobarn v. Hollis, 3 Metcalf, 125; Needles v. Needles, 7 Ohio St. 432; 8 Bacon Abr. 280; Pellitreau v. Jackson, 11 Wend. 110; 9 Johns. 123; 4 Kent, 206; Shephard’s Touch, 322, 328; Smith’s Real and Pers. Prop. 192.
    2. There is, in this case, no estoppel even at -law. But in equity, as this case, is, the court is not bound to give effect to any estoppel, which, in a proper case, might arise at law on the covenants of warranty in the deed. Morris v. Burroughs, 1 Atk. 398; 7 Ohio St. 446.
    3. But the question of estoppel can only arise where a grantor with warranty seeks (or those claiming under him seek) to oust hi's grantee, or deny the title of such grantee. But here the defendants are not estopped — they do not claim under or in privity with the grantor, Gordon. Carver v. Astor, 4 Pet. 1; Crane v. Morris, 6 Pet. 598; 2 Abbott Nat. Dig. 286; 2 P. Wms. 432; Willes, 9; 1 Salk. 285; 6 Mod. 44; 1 Salk. 276; 6 T. R. 171; 2 B. and Ald. 242; Co. Litt. 352a; 3 Johns. Cas. 174; 4 Binn. 231, 314; 17 Mass. 244, 571; 3 Litt. 447.
    III. A court of equity will not aid a stale claim. The plaintiffs’ deed was unrecorded thirty-five years, and forty-five years elapsed between its date and the time when suit was commenced. Ridley v. Hettman, 10 Ohio, 524.
    • IY. A court of equity will not aid purchasers of stale claims, who buy to litigate at their own expense for a share of the property recovered.
    Their right to appeal to the conscience of the chancellor is by no means equal to bona fide claimants. The repose of society, the security of land titles, public policy, and justice require that all who buy litigation, or agree to maintain expenses, are entitled to no consideration in a court of equity. McArthur v. Gallaher, 8 Ohio, 512.
    V. The record in the office of the principal surveyor of the Virginia Military District, showing the Gordon entry and survey “ withdrawn,” is a public record which imports absolute verity, and can not be impeached in the mode now attempted. Anderson v. Wallace, 5 Wheat. 291; Public Land Laws (pt. 2), 143-150; 1 Greenl. Ev. 507; Page Va. Military Titles, 17; Hollingsworth v. Barbour, 4 Pet. 474; McArthur v. Nevil, 3 Ohio, 178; Galt v. Galloway, 4 Pet. 339; Taylor v. Myers, 7 Wheat. 23; Wallace v. Porter, 16 Ohio, 277; Jackson v. Clark, 1 Pet. 629.
    On grounds of public policy and for the security of titles, parol evidence is inadmissible to impeach - them. Baldwin v. Snowden, 11 Ohio St. 203.
    YI. The record of the alleged deed of June 27, 1827, is unauthorized and void.
    1. The act of February 8, 1810, provides for a recorder (1 Chase, 664); the act of February 24,1820, provides that “ when a man . . shall execute a deed . . by which any lands . . shall be conveyed, . . all deeds executed agreeably to . . this act shall be recorded.”
    If executed out of this state, the recording is to be within six months, but may be afterward, and shall be from day of record notice to subsequent purchasers (2 Chase, Stat. 1140, §§ 1, 3, 4). At common law, there is no authorized record of deeds. Such deeds only can be recorded as the statute authorizes, and it is to be strictly construed.
    This statute, in express terms, only applies to deeds which are operative as conveyances, at their execution, and not those which may operate by way of estoppel in futuro.
    
    As a question of law, it will not be pretended that this deed was ever operative as a conveyance. Hence it can not be recorded.
    2. The alleged deed can not be recorded because not acknowledged as the statute requires. Lessee v. Culver, 10 Ohio, 189.
    3. The act of February 24, 1820, under which it was made, was repealed before the deed was recorded, by the act of February 22, 1831, which is prospective in its operation, and only authorizes the record of deeds thereafter made. Its language is, “ when any man, etc., shall [thereafter] execute,” etc.
    
      4. Upon general principles, a deed which, has been executed twenty-one years without record is not entitled to be recorded. The right to have a deed recorded, like every light at law, is lost by lapse of time.
    On grounds of public policy, the law will not permit men to carry concealed weapons, with which to destroy land titles at pleasure. The concealment is a fraud which induces men to acquire titles and make improvements with no apprehension of danger ; to allow the holders of such torpedoes to wait and watch and explode them only when it has become profitable to do so, would be a wrong which justice must abhor.
    The delay is an abandonment of claim. Chambers v. Mifflin, 1 Pa. (Rawle, Pen. & W.), 79; Strauch v. Shoemaker, 1 Watts & S. 178.
    A judgment is presumed to be paid in twenty years. It can not be revived, and will not support an action of debt. Allen v. Everly, 24 Ohio St. 97; Bissell v. Jandon, 16 Ohio St. 498. Shall a county recorder have power to put in force any paper presented twenty years old, with no evidence of authenticity, when a court can not revive a judgment having full evidence of original validity ?
    This would give a wide license to forgery and fraud, when ■the witness who could detect them may be dead. Ancient deeds thirty years old may be given in evidence without proof of execution, provided, first, they are unblemished by alterations; second, that it be proved they came from such a custody as to afford reasonable presumption of genuineness ; and third, that they are otherwise free from just suspicion. 1 Glreenl. Ev. 821, 144, 570. Tliese are questions for a jury, but shall mere secondary evidence of the same paper (a copy from a record made thirty-three years after date of the alleged deed) be competent without the aid of that auxiliary proof requisite to support the original ¿in court? If so, a recorder can abolish the common law.
    The common law is as much law as a statute. The statute which authorizes the record of deeds was not designed to repeal the common law as to ancient deeds. It must be construed in subordination to it, and as only authorizing the record of deeds not subject to the common-law rules as to ancient deeds.
    A copy of a deed can only be evidence where the original duly proved would be so. State v. Forsyth, 11 Ohio, 261; King v. Henry, 4 Ohio, 83; Ramsey v. Riley, 13 Ohio, 166.
    VII. The occupants are innocent purchasers under a patent, with nothing on the record to charge them with notice of an adverse claim.
    When the patent issued to Gregg, the prior entry and survey were on the record withdrawn. There was nothing to charge purchasers from Gregg with notice of an outstanding equity. He conveyed the legal estate to bona fide purchasers, and they and their grantees, even with notice, are all innocent purchasers, entitled to protection. Cardv. Patterson, 5 Ohio St. 319 ; Woodworth v. Paige, 5 Ohio St. 70; Rudloio v, Kidd,, 3 Ohio, 550.
    VIII. The law presumes a conveyance to the parties in possession from the plaintiffs or those under whom they claim. 13 Am. Law. Reg. (N. S.), 69, February, 1874; McArthur v. Gallaher, 8 Ohio, 512.
   Johnson, Chief Judge.

From the evidence, we are clearly of the opinion that the entry, survey, and plat made on the warrant in favor of Archibald Gordon, were all regular, and vested in him a good equitable title in fee^to the land in controversy; and that as against him, or those claiming under him, the marking of said entry and survey as “ withdrawn,” and the entering another warrant on the.same land by Gregg and others, was wholly unauthorized and fraudulent, and his title thereby acquired null and void. Tn the light of the testimony of E. P. Kendrick, the surveyor, who indorsed the word “ withdrawn ” on the entry and plat, there can be no doubt of this.

Archibald Gordon, Sr., who located this warrant, was a revolutionary soldier, who died (at a date not given) intestate, leaving an only son and heir, Archibald Gordon, Jr., who inherited this land.

June 27,1827, the son, his father being still alive, conveyed the same to Benjamin F. Hart, under whom plaintiffs claim. Gordon, Sr., survived for some years after this deed was made by the son to Hart in 1827. Gordon, Jr., survived his father, and the claim of plaintiffs is, that as this land descended to him, his title thus acquired passed to Hart under the deed of June 27, 1827, which ivas made during the father’s lifetime. The title of the elder Gordon, acquired by his location, survey, and entry, vested in him an equitable estate in fee in the land. This descended to his son on his death, subsequent to the son’s deed to Hart.

As Gregg’s title in fee simple, under his entry and patent, was, as against the prior entry of Gordon, fraudulent and void, it follows that, as against Gordon or those claiming under him, he has no paramount title, and that the latter would be entitled to the relief sought. But Gordon, the elder, and the owner of this equitable title, never conveyed the same. It is alleged that it passed by descent to Gordon, the son.

It also is shown, that this son, during the life of the father, conveyed the laud to Hart, and it is claimed, on behalf of plaintiffs, that this after-acquired title by descent to the son passed to Hart and his heirs by way of estoppel. This depends upon the terms of this deed.

The following is a cop3>- of that instrument:

“.This indenture, made and entered into this twenty-seventh day of June, in the year of our Lord eighteen hundred and twenty-seven, between Archibald Gordon, late of Cecil county, Maiyland, of the one part, and Stephen F. Hart, of the county of Baltimore, in the State of Maryland, of the other part, witnesseth that Archibald Gordon, for and in consideration of one hundred dollars, paid by Joseph Hart, he doth grant, bargain, and sell unto Stephen F. Hart, his heirs and assigns forever, all his lands in Ohio, Indiana, and Illinois — one tract in Ohio, surveyed on military warrant No. 6,508, and on entry No. 12,017, by D. S. of military lands in Ohio, beginning on the waters of Rush creek, at a stake northwest corner to Alexander Parker’s survey No. 9,958, in the line of Sawyer’s survey No. 10,239, thence south 12° east 246 poles to two beeches in the line of Sawyer’s to a corner in Aiken’s survey Nos. 10.387 and 10,388, thence with his line of said survey south 78° west 134 poles to an ash and beech, thence north 12° west 246 poles to a hickory and elm in the line of Sawyer’s said survey, thence north 78° east 134 poles to the beginning, containing two hundred acres, more or less; also, all the land surveyed on warrant 5,684, and on entry No. 838, in the military tract of Ohio; also, 1G0 acres in the military district of Illinois, patented to Archibald Gordon.
“ To have and to hold the same forever.
“ In witness whereof, the said party of the first part hath hereunto set his hand and affixed his seal, the day and year aforesaid. ARCHIBALD GORDON, [seal.]
“ Signed, sealed, and delivered in the presence of
“ JOHN AI^QUITH,
“ SAM’L T. DEWEES.”

It will be noted that there are no covenants of warranty in this deed, nor are there any recitals of fact, which would estop the grantor or his heirs from asserting an after-acquired title. Neither does this deed purport to convey any interest of the grantor in the# premises.

At the date of this deed the grantor had no interest in the land that could be assigned or released.

No one is an heir to the living. During the father’s life? all that the son had was a mere naked possibility, not coupled loith an interest, -which could not be released, assigned, or devised. Neither would it descend to his heirs. It could only be extinguished by estoppel. Needles v. Needles, 7 Ohio St. 433; Jackson v. Waldron, 13 Wend. 178; 4 Kent’s Com. 262, and note.

As Gordon, Jr., the grantor, had no such interest in the estate, owned by his father, as could be conveyed, this deed, if it operate at all, must do so by -way of estoppel, by reason of the covenants of warranty or recitals in it. Jackson v. Wright, 14 Johnson, 193; Coke on Litt. § 446; Dart v. Dart, 7 Conn. 259; Nash v. Spofford, 10 Met. 192.

Coke, in commenting upon section 446 of Littleton, says : “ Eor if there be a warranty annexed to the release, the son shall be bound. Eor, albeit, the release can not bar the right, yet the warranty may rebut or bar him and his heirs of a future right, which was not in him at the time; and the reason (which, in all cases, is to be sought) wherefore a warranty, being a coveuant real, should bar a future right, is for avoiding a circuity of action, which is not favored iu law; as he that made the warranty should recover the land of the terretenant, and he, by force of the warranty, to have as much in value against the same person.” See also Sheppard’s Touch. 182.

In Lessee of Boyd v. Longworth, 11 Ohio, 258, it is said: “An express warranty is the only contract which has the effect to estop the warrantor. . . . The covenant must be one running with the land.” This rule is recognized and strongly affirmed in White v. Brocaw, 14 Ohio St. 339; Kinsman v. Loomis & Wood, 11 Ohio, 475.

Counsel for plaintiffs rely on Kinsman v. Loomis.

In that case, it is said that a person defending his possession on no other ground than that one of the grantors had no title, is bound, by the recitals of the deed, to the same extent as if he were privy to the grantor. -This rests upon the ground, it is said, that he is not a stranger, but privy in estate to him whose title he retains, and is concluded by what destroys it in his hands; for it is not just that a stranger, standing on the claim of the grantor only, and relying on no superior right, should be permitted to contest the existence of a fact which those interested have settled.

In that case, the claim was that Swift, the grantor, had no title at the time of his conveyance, because it did not contain covenants of warranty, but it did contain a recital, under a whereas, to the effect that the lawful owner had conveyed to him. It was held that the recital was as , effectual as a warranty to bind Swift and his heirs and assigns, and that a stranger, who rests his defense solely on the defects of Swift’s title, was bound by such recital by Swift.

Applying that principle to this case, the claim is that as Gregg has no title, his defense rests solely on the defects of plaintiff’s title, and he is, therefore, as effectually estopped as plaintiff’s grantor would be if he were here, defending; instead of Gregg.

Admit this to be so, the question then is: Would Archibald Gordon, the son, or his heirs or assignees, if defending in this action, be estopped by reason of any recitals in this deed of June 27,1827? We think not; for it is well settled, that where no estoppel arises from warranty, recital, or otherwise, a release or conveyance operates only on existing rights. Lessee of Kinsman v. Loomis, 12 Ohio, 478.

In the deed before us, as there are no covenants of warranty, nor any recitals of fact that he had any title, or any right to make the conveyance, there is nothing that would estop the grantor, either at law or in equity, from settiug up an after-acquired title, where, as in this case, there is no possession under the deed, and no charge of fraud in the transaction. See Doe v. Oliver, 2 Smith’s Leading Cases, 605-828; for a full discussion of this question, where all the cases are ably reviewed.

These plaintiff's have not shown any equities in themselves, or their grantor, Hart, such as possession, improvements, payment of purchase money after title was acquired, or any act of Gordon, the son, after the death of his father, ratifying his previous deed, or any fraud on his grantees, so as to make him a fraudulent grantor, or that it would otherwise operate as an equitable estoppel against him. No such estoppel therefore exists as against Gregg, though in possession under a fraudulently-acquired title.

The title acquired by Archibald Gordon, the son, by descent, is outstanding in him or his heirs or assignees. They are not parties to this action, and, as plaintiff’s title is defective, because the conveyance under which they claim does not cover the' after-acquired title of their grantor, they have no such equitable estate as authorizes the relief sought.

Judgment affirmed.

Scott, J., clid not set in this ease.  