
    Campbell v. Brackenridge and Others.
    Where a material allegation in a bill in chancery is denied by the answer it must be proved.
    If at the time of A.’s assignment of an agreement for the purchase by him of real estate, the premises are occupied by a third person, such occupancy is constructive notice to the assignee of the occupant’s title.
    But if the possession is vacant, the assignee need not inquire of the late occupier what was the nature of his title, and will not.be held to have implied notice of the information which he might have obtained by inquiry.
    A person who purchases an equitable title without notice of a prior equity, and afterwards, with notice, buys in a legal title to support his equitable one, will be protected.
    Although an assignment by A. to B. of an agreement be objectionable on account of A. 's intoxication when he execute^ it, the objection will not affect B.’s subsequent assignment of the agreement to C. without notice.
    An agreement made by county commissioners, not at a regular session of the board but in vacation, is not binding on the county.
   Smith, J.

This case was commenced in the Allen Circuit Court, from whence it was certified here in consequence of the president judge of that Court having been engaged as counsel for one of the parties. It stands, therefore, as an original case, and has been submitted upon bills, answers, replications,' and depositions. The facts established, so far as they are necessary to be stated, are substantially as follows:

In the year 1830, the congress of the United States passed an act authorizing the associate judges of the county of Allen to enter, for the use and benefit of said county, so much of the “forty-acre reservation-” reserved for the use of the Indian agency established at Fort Wayne, as might not fall to the state of Indiana under the act of 1827, granting certain lands to the state for the .purpose of aiding in the construction of the Wabash and Erie canal. The land was accordingly entered by the associate judges and paid for with the funds of the county. It was then taken possession of by the board of county commissioners, who caused it to be laid off into town-lots. In October, 1830, a number of the lots were sold at public auction by the county agent, by order of the board of commissioners, the associate judges claiming no interest, the entry having been made by them for the sole and exclusive use of the county.

On the 17th of January, 1832, Nathan Coleman, Francis Alexander, and James Holman, being the county commissioners of Allen county and describing themselves as such, but in vacation and not at a regular session of the board, entered into an agreement in writing with one Leonard Coquillard, by which they sold to Coquillard lots Nos. 35 and 36, being part of the tract of land above described, for 400 dollars, to be paid in plastering the court-house at Fort Wayne in a good, workmanlike manner, when called upon, at such price as any other person would do the same for, Coquillard to pay the difference in money if the plastering did not come to as much as the price of the lots. This agreement was signed, and sealed by the parties with their individual seals. The board, at that time, had no county or official seal. On the 8th of August, 1832, this contract was assigned by Coquillard, by indorsement thereon, to Nathaniel B. Bowen, the latter, as the assignment specifies, to have all the rights, interests, and claims of Coquillard, and to assume all his liabilities to the county commissioners. This assignment is tested by the signatures of D. H. Colerick and W. G. Campbell, the complainant. On the 6th of December, 1832, Bowen assigned this instrument upon the same terms, by indorsement, to Elisha B. Harris, and on the 2d of March, 1833, Harris assigned it to Robert Brackenridge. These are all the assignments indorsed upon the contract made by the commissioners with Coquillard.

Before the indorsement to Bowen, however, Coquillard made an agreement with Campbell, the complainant, also in writing, by which he sold Campbell his right to lot No. 36, in consideration of the latter building him a house of the value of 200 dollars on lot No. 35. Campbell took possession of lot No. 36, and built a small house upon it of the value of about 100 or1 150 dollars, into which he moved his family. He also built a house upon lot No. 35 estimated to be 178 dollars and 86 cents. Pie was at work upon the house on'lot No. 35 in July, August, and October, 1832. He moved into the house on lot No. 36 on the 17th of October, 1832, and lived there two or three months. The agreement between Coquillard and Campbell is alleged to be in the possession of some of the defendants or to be lost or destroyed. It was not produced. On the 3d of September, 1832, Bowen and Campbell made an agreement in writing, by which the former assigned to the latter all his right to- a frame house then building on lot No. 35, as security for the carpenter work and materials expended in its construction, until- Bowen should make Campbell a deed in fee-simple for lot No. 36. The complainant alleges in his bill, that the assignment to Bowen by Coquillard was made subject to the contract previously made by the latter with the complainant, of which Bowen had notice, and this agreement between Campbell and Bowen appears to have been made with the view of carrying out the previous agreement with Coquillard.

Soon after Coquillard’s agreement had been assigned to Brackenridge, at the March session of the board doing county business, the latter surrendered it up to be cancelled, and the board then made an order directing the county agent to execute to Brackenridge a title-bond for the lots Nos. 35 and 36, on his giving proper vouchers for the payment of the purchase-money, 400 dollars. Such a title-bond was accordingly made; and a receipt indorsed upon it, signed by the county agent, shows that the purchase-money was fully paid by Brackenridge.

No request was ever made to Coquillard or his- assignees to do the plastering of the court-house, and no such plastering was done. Brackenridge, after the assignment to him, took possession of the lots and made improvements to the value of about 4,000 dollars. The improvements were made during the years 1833, 1834,1835, and 1837. The original bill of complaint in this suit was filed by the complainant on the 11th of April, 1833.

These are the leading features of the case. Some other facts in evidence will be noticed in the consideration of the questions that arise. One of the first and most important of these, supposing for the present; that the contract made by the county commissioners with Coquillard was valid and binding upon the county as a sale of the lots in question to Coquillard and his assigns, is whether Harris and Bracken-ridge had notice, at the time of the respective assignments to them, of the prior sale and contracts of Coquillard and Bowen to and with the complainant. Brackenridge, in his answer, expressly denies such notice, and therefore it is necessary that fact should be established by the complainant before he can be entitled to a decree against the former. If Brackenridge took the assignment from Harris without notice of the prior equity of Campbell, he holds as an innocent purchaser having equal equities with the complainant, and a Court of Chancery cannot interfere between them.

It is contended by the counsel for the complainant, that both Harris and Brackenridge were affected with constructive notice by the fact that Campbell was in the possession and occupancy of the premises at the time of the assignments to them. This position would be correct if it was sustained by the facts. But such is not the case. It is proved by one witness, that Campbell moved into the house on lot No. 36 in October, 1832, and lived there two or three months; but it is stated by Colerick, who wrote the assignment to Harris, that before the date of that assignment (6th December, 1832,) Campbell had removed from the county, and by two or three witnesses that, at the date of the assignment to Brackenridge, both the lots were uninclosed and that neither of them was occupied by any person. It is true, there is a written lease of the lot No. 36, purporting to have been granted by Campbell to one Hedges, and proved to have been in the handwriting of Hedges, which is dated the 16th of May, 1833, and a witness deposes on the 23d of September, 1833, that Hedges was then, and had been for some months then last past, living in the house on that lot; but this evidence does not contradict the proof that, at the date of the assignment to Brackenridge (2d of March), the premises were vacant. It is not proved then that Campbell, or a tenant holding under him, was occupying the lots or either of them at the time of the assignment to Brackenridge, and a purchaser, when the possession is vacant, is not bound to inquire of the late occupier what was the nature of his title, and will not be held to have implied notice of the information which he might have obtained by inquiry. Johnston v. Glancy, 4 Blackf. 94, and note.

It is also contended that Brackenridge had express notice of the claim of Campbell, at the time the former presented the original agreement with Coquillard, after he had procured it by assignment from Harris, to the county board at its March session to be cancelled. One witness, Noel, states that when Brackenridge so presented the agreement, he (the witness) stated to the board that it was well known that Campbell had a claim on the lots and had made improvements on them, but he does not expressly say that this information was given in the presence and hearing of Brackenridge. No other witness testifies to notice having been given at that time, and this imperfect evidence of one witness is not sufficient to overcome the positive denial of the answer. But it is averred that Brackenridge had full notice of the whole equity of the complainant by the original bill in this suit, which was filed before the former had paid the whole amount of the purchase-money to the county agent and received his deed. The complainant, however, is equally in error in relying upon this point, and on the effect of notice given at the time of the surrender of the original agreement to the county board. It was then too late to affect Brackenridge with such notice. It should have been given prior to the completion of his contract with Harris, as it was by the assignment of the latter he obtained the interest to which the prior equity of the complainant was attached. After he had purchased the interest of Harris, he might purchase another or different right or interest with full notice of a prior equity without losing his character as an innocent purchaser. This principle is fully recognized in the case of a party who purchases an equitable 1 title without notice of a prior equity, and afterwards, with notice, buys in a legal title in order to support his equitable title. In such cases the purchaser will be protected. 1 Story’s Eq. 75. , This, in fact, was what was done by Brackenridge after the agreement with Coquillard had been assigned to him.

We come, to the conclusion, therefore, that it is not proved that Brackenridge’s purchase of the interest of Coquillard was made with notice of the prior claim of the complainant. This point has been examined with some minuteness, because it is decisive of the question whether such relief can be granted as is prayed for by the bill. As there is no ground to consider Brackenridge as the holder of the legal title in trust for the complainant, he cannot be compelled by decree to convey the property in question to the latter.

It is in proof that Bowen, about the time of his assignment to Harris, was addicted to intemperate habits, and was intoxicated when the assignment was made. Counter evidence is also offered to prove that his agreement with Campbell was procured by fraudulent means; but we shall not further notice this testimony, because we do not deem that introduced by the complainant sufficient to justify the conclusion that the assignment to Harris was invalid for that reason, and if it was as against him that would not affect the rights of Brackenridge, unless notice of the fact of Bowen’s incapacity at the time was brought home to him, which is not attempted.

The only remaining question to be considered is, whether the contract made by the commissioners with Coquillard was of such a nature as to be binding upon the board or upon the county. This may be disposed of briefly. In the case of Archer v. The Board of Commissioners of Allen Co., 3 Blackf. 501, it was held that in a suit on a contract for work and labour, no act of the members of a board of county commissioners could render them liable in their character of commissioners, unless such act was done by them at a regular meeting of the board at' the time fixed by law. Their powers are created and defined by the statutory laws of the state. They are, in fact, agents with strictly limited powers, and for any act done by them not within the scope of such powers, the county as a body politic or their successors in office are not responsible. The contract with Coquillard was not entered into by virtue, of any order or act done at a regular meeting of the board, and for that reason must be regarded as creating no obligation or liability on the part of the commissioners except in their individual capacity.

H. Cooper and O. H. Smith, for the complainant.

R. Brackenridge, D. PL. Colerick, W. H. Coombs, J. S. Newman, and W. W. Wick, for the defendants.

Per Curiam.

The bill is dismissed with costs.  