
    John W. Mack and wife v. Robert C. Brammer et al.
    A military land-warrant was issued to the widow and minor child of a deceased soldier of the Mexican war, under the act of Congress of February 11, 1847, which provided that the guardian of such minor may, “ upon being duly authorized by the orphans’ or other court having probate jurisdiction, have power to sell ” the warrant; and the guardian of the minor, with the widow, assigned the warrant, without being authorized to do so by the probate court, to a person who knew all the facts of the case, but supposed the assignment gave him a clear title to the warrant. Held :
    
    1. The assignment of the guardian, without the authority of the proper court, did not transfer the right of the minor in the warrant to the purchaser.
    
      2. Where the statute requires a particular authority to be pursued in the transfer of an interest in real estate, the purchaser is presumed to know such authority, and if he purchases where the authority has not been pursued, he does so at his peril.
    3. The holder of such warrant upon the unauthorized assignment of the guardian holds the same in trust for the minor, and when located, and a patent for land is procured thereon by him, he is accountable as trustee therefor to such minor.
    4. Such trustee is not in equity relieved from such accountability on the ground of staleness of the claim, where the minor within about seven years after arriving at age, and soon after being apprised of the state of the case, brought suit to establish the trust and enforce such accountability.
    Error, to tbe District Court of Lawrence county.
    April 26,1872, John W. Mack and Malinda Mack, Ms wife, filed their petition, in the Court of Common Pleas of Lawrence county, against Robert C. Brammer and Joseph "W. Davidson, to establish a trust against the latter in 160. acres of land, in favor of Mrs. Mack.
    The case, briefly stated, is this: Robert Walters, under the act of Congress of February 11,1847, entered the military service of the United States as a volunteer in the Mexican war, and died in the service, leaving Mary Walters, his widow, and Malinda, then about five years old, his only child, who is now the wife of John W. Mack.
    In 1850, pursuant to said act of Congress, a United States land-warrant was issued to Mary and Malinda Walters, as the widow and child of the deceased volunteer.
    The defendant, Brammer, having been appointed guardian of the child, in 1851, without any authority other than such appointment, assigned all her interest in the warrant to the defendant, Davidson, who became the purchaser thereof, with full knowledge of all the facts of the case.
    Davidson located the warrant on land in Lawrence county, Ohio, and on January 10, 1867, a patent was issued to him on the warrant, as assignee of Mary Walters and Robert C. Brammer, guardian of Malinda Walters.
    Brammer never accounted to any one for the avails of the warrant, nor did he, in fact, receive anything therefor, the whole amount, one hundred dollars, having been paid to the widow.
    The case was appealed to the district court, where the petition was dismissed. The plaintiff, on the overruling of a motion for a new trial on the ground that the decree was against the law and the evidence, took a bill of exceptions embodying all the evidence, and prosecuted his petition in error in the supreme court to reverse the judgment of the court below.
    
      John Hamilton, for plaintiff in error:
    The statute of uses is not in force in Ohio, and no distinction is known to our practice between uses and trusts. Helfenstine’s Lessee v. Jacob Garrard, 7 Ohio (pt. 1), 275.
    The courts of Ohio, independent of statutes, have jurisdiction to enforce trusts and appoint trustees. Urmey’s Ex’rs v. Wooden et al., 1 Ohio St. 160.
    The act of Congress making provision for the issuing of the warrants constitutes the guardian of minor children a trustee to receive the same and to account to his ward for the proceeds, and for the purposes of an action for relief by the child, the guardian is a necessary party. Chapman v. Loveland, 11 Ohio St. 214.
    The act requires the certificate or warrant to be issued first to the widow and children, which was done in this case, and the act expressly casts a trust upon the guardian, and, to secure the benefits to the minor, directs the manner of the execution of the trust — i. e., sends him to a state court having proper jurisdiction, that he be required to account for the proceeds, that they be properly applied in a proper manner.
    Here was a trust in defendant, Robert C. Brammer, in favor of plaintiff, Malinda Mack, then Malinda Walters.
    Arising by operation of law, it may be proven by parol. Williams v. Van Tuyl, 2 Ohio St. 336; Reid v. Fitch, 11 Barb. 399; 28 Penn. St. 66.
    
      Equity will not suffer a trust to fail. Adams Equity (marginal paging), 36; Peter v. Beverly, 10 Peters, 534.
    But will appoint a trustee, or if the trust is in lands, will treat the holder of the legal title as trustee. Sheppard v. McEvers et al., 4 Johns. Ch. 135.
    The assignee of a trust estate having knowledge of the trust, is bound by it. Hallet et al. v. Collins, 10 How. 174; Chapman v. Loveland, 11 Ohio St. 214.
    The interest of plaintiff, then Malinda Walters, appeared upon the face of the certificate or warrant itself, as will sufficiently appear by reference to the copy of warrant in the record in 'this case. This of itself charges any purchaser of the certificate or warrant with notice, and they take the same, and any land procured therewith, charged with the trust. Stoddard v. Smith, 11 Ohio St. 581.
    The trust has never been determined by any legal means of determining the trust, either by consent of cestui que trust, by operation of law, by any court of chancery jurisdiction, or by proper execution of the trust, which in this case was the application of the fund arising from the sale of the warrant.
    The testimony of Mrs. Mary Walters, the mother of plaintiff, and of the plaintiff, Malinda Mack, is positive and undisputed on this point — i. e., that plaintiff did not receive the benefits of the warrant. Davidson, defendant, dealt with Brammer, purchasing the warrant with the interest of the cestui que trust appearing upon the face of it to put him upon inquiry. The trust, and the manner of its execution, was a matter of general, public, statutory law, of which the long well settled rule of law will not permit him to plead ignorance. The evidence further shows, he knew he was dealing with the fund of an infant of tender years, and under circumstances where the money was peculiarly liable to be misappropriated.
    . He came into possession of the,warrant and the lands on which he laid it, with notice of the existence of the trust, and that the transfer to him from Brammer, the trustee, was being done in direct violation of Brammer’s duty as trustee, and of plaintiff’s rights as cestui que trust. Hethereby became chargeable as trustee, and he held the land on which he laid the warrant, in his own right as to Mrs. Mary "Walters’ interest, but in trust as to Malinda’s interest. Mechanics’ Bank of Alexandria v. Louisa and Maria Seton, 1 Peters, 309.
    “ Time does not begin to run against a cestui que trust until he has knowledge, or may fairly be presumed to have knowledge, of the existence of the trust.” Carlisle et al. v. Foster, 10 Ohio St. 198.
    Plaintiff, Malinda Mack, testifies she knew nothing of the matter until her attention was directed to it by her attorney, Ralph Leete, a short time prior to the commencement of her action. N ote here that the patent for the lands on which the warrant was laid, was presented for record as late as February 16, a. d. 1870; petition filed two months thereafter. By the testimony, the plaintiff, Malinda, was under the legal disability of infancy until the year 1862, and of marriage until a later date, but which does not appear.
    Dealing with the trustee with reference to the subject-matter of the trust, with notice of the existence of the trust, Davidson, we claim, was bound to inquire into the nature and extent of the trust. Seargeant v. Ingersoll, 15 Penn. St. 343. And if he deal with the trustee, either willfully or through ignorance, being put on inquiry, in violation of the duties of such trustee or the rights of cestui que trust, he became the trustee for the plaintiff, and held the land-warrant, or the plaintiff’s interest therein, as such; and when he laid the warrant on the land described, the trust attached to it, and he exercised legal dominion over it, for the purposes, and those only, which were contemplated by thegrantor, the United States government, as expressed in the grant — viz., the act of February 11, 1847. He is bound to account for it with all the rents and profits, reasonable increase, etc., and is entitled to all proper expense and costs.
    
      John S. George, for defendants in error :
    The purchase of the land-warrant in this ease was made by the defendant, J. W. Davidson, in good faith and for a 
      bona fide and full consideration, and without notice of any defect in the title of the vendors, or their right to sell and assign the same.
    “ An innocent purchaser, without notice of an outstanding equity, holding the legal title will prevail.” Gibler et al. v. Trimble, 14 Ohio, 340.
    Davidson has the legal title to these lands; the laying of the land-warrant extinguished it, and the issuing a patent by the United States to Davidson put the legal title to them in him. The land-warrant was sold to Davidson in 1851, which he located upon part of the lands in question; there being one hundred and seventy-three acres in the boundary mentioned, and the warrant being received for only one hundred and sixty acres, Davidson paying for the overplus in money.
    The government recognized the sale and assignment of said warrant as legal and valid, and on the 10th day of January, 1867, issued to him a patent therefor.
    Davidson acquired an equity by the purchase of the land-warrant in good faith and for a valuable consideration ; and his legal title will be protected. See Gibler et al. v. Trimble, 14 Ohio, 339-343.
    The plaintiffs’ equities are stale. “ Stale equities will not be enforced.” Ib. 343.
    A court of equity acts upon the conscience, and it is impossible to' attach any demand upon the conscience of a man who has purchased for a valuable consideration, bona fide, and without any notice of any claim on the estate. Such a man is entitled to the peculiar favor and protection of a court of equity. 3 Sugden on Vendors, top page 290, marginal page 418.
    A bona fide purchaser of a land-warrant for value, who is chargeable neither with notice nor want of diligence in making his purchase, after locating the warrant and obtaining a patent for the land located, is not in equity a trustee of the legal title for the true owner of the warrant, although it was obtained by the fraud of a third person, and transferred under a forged assignment. Dixon v. Caldwell, 15 Ohio, 412.
   Day, Chief Judge.

Davidson holds title to one hundred and sixty acres of land in question, by a patent of the United States. He obtained the patent upon a United States land-warrant, which he acquired by assignment from Mary Walters and the guardian of Malinda Walters. He had, then, no other right to the warrant than what he acquired by that assignment. He may have supposed that the assignment gave him a clear title thereto, and if he is chargeable neither with notice nor want of diligence, in regard to the rights of the plaintiff, he holds a clear title to the land under the patent.. Dixon v. Caldwell, 15 Ohio St. 412. But if he had full knowledge of the facts upon which the plaintiff' bases her claim against him, his mere misapprehension of the law, arising from such facts, will mot protect him from being chargeable with notice of her .rights. He knew that the warrant, on its face, purported 'to be, and was, issued to the widow and child of Robert Walters, a deceased soldier. He knew that the child was a minor, for he did not take her personal assignment, but '.took that of her guardian. The facts were equally known 'to all the parties except the child, who was then too young •to understand; and the presumption is, they were not •ignorant of the law relating thereto. Therefore, whatever «rights Davidson acquired, as against the plaintiff, he obtained from her trustee as guardian, duly appointed by the proper court; and this raises the question as to what right, passed to Davidson by the assignment of the guardian.

The ninth section of the act of Congress of February 11, 1847 (9 U. S. Stat. at Large, 125), after providing for the issuing of land-warrants to the soldiers of the Mexican war, contains the following provision: That in the event of the death of any such soldier, “during service, or after 'his discharge, before the issuing of a certificate or warrant, ;as aforesaid, the said certificate or warrant shall be issued ¡in favor, and inure to the benefit of his family or relatives, according to the following rules: First, to the widow and his children; second, to his father; third, to his mother; and in the event of his children being minors, then the legally constituted guardian of such minor children shall, in conjunction with such of the children, if any, as may be of full age, upon being duly authorized by the orphans’, or other court having probate jurisdiction, have power to sell and dispose of such certificate or warrant for the benefit of those interested.”

It has ever been the policy of Congress, as manifested by this section, to secure to the soldier, and in case of his death, to his family, the greatest practical benefit of its bounty, and at the same time protect them in the enjoyment thereof. Accordingly, the' “ legally constituted guardian ” of a deceased soldier’s minor child, is empowered to dispose of the interest of his ward in such bounty, but can do so only when authorized by the proper probate court; for the express power to sell upon the authority of the probate court, conferred on the guardian, clearly excludes the idea of his power to sell without such authorization. The maxim expressio unius exclusio alterius applies. The enactment was clearly intended not only to authorize the sale of warrants pertaining to real estate, but for the greater security of such minor children, and to protect them from being deprived of such bounty by the act of a guardian by virtue of his general powers alone; he must add thereto the express sanction and authorization of the proper court. It is not pretended that this was done. The assignment of the guardian rests upon his general powers only, which, under the statute, are insufficient to transfer the rights of the ward in the warrant. Davidson, then, as to the plaintiff, acquired no right thereto relieving him from accountability as her trustee.

In support of this view of the case, we need only refer to the following cases: In Reeder v. Barr, 4 Ohio, 447, it was held that, where a patent was issued to the assignee of the administrator of a deceased person, a subsequent purchaser could not prevail against the heirs of the deceased, on the ground of being an innocent purchaser, without notice, for it appeared on the face of the papers that the title came through an administrator, whose assignment “ could be available only by a previous compliance with certain legal formalities.” Much more is the rule applicable in this case, for Davidson was the immediate assignee of the guardian, who made the assignment in derogation of the statute.

In Denning v. Smith, 3 Johns. Ch. 344, it was held that a special authority must be strictly pursued; that a purchaser is presumed to know such authority when it is given by public statute; and that if he purchases where the authority is not pursued, it is at his peril..

But 'it is said the plaintiff’s claim is barred by lapse of time; not that it is barred by the statute of limitations, but that it can not be enforced in equity, for the reason that it has become stale. It is only necessary to say upon this point, that it is questionable if the plaintiff had a distinct knowledge,,of her rights until near the time the action was brought; but, however this may be, she was under the disability of infancy until about seven years before the suit was commenced, and, under the circumstances of the case, can not be chargeable with such laches as in equity ought to defeat the action.

It follows that the judgment of the district court dismissing the plaintiff’s petition must be reversed and the cause remanded for a new trial.  