
    *Lessee of James M. Trimble v. Boothby and others.
    Persons having an equity in lands, or contract with a trustee of military land warrants, are necessary parties to a suit in chancery, by the cestui que use, to compel the legal title to such warrants, and entries and surveys under the same; and, if they are not made parties, the doctrine of lis pendens does not prevent such contract purchasers from perfecting their legal title, by procuring a deed from the trustee.
    
      ■Where deeds, with covenants of general warranty, have been made during the pendency of such suit in the United States circuit court, although a decree may have been rendered against the trustee to compel the assignment of such warrants; yet, if it remain unexecuted, and is suffered to lay dormant, the doctrine of lis pendens does not apply, and the legal title to the land becomes vested in the trustee, by patent, and inures to the benefit of the covenantees, and perfects their title.
    The act of Congress of 1836, respecting the issuing of patents in the name of deceased persons, who had conveyed the land with covenants of general warranty — such covenants being in life against the heirs — transfers the legal title derived from such patent to tho grantees.
    This is an action of ejectment, reserved in the county of Brown. The case was submitted to the court upon the following agreed statement of facts:
    The plaintiff deduces his titlo under a patent to himself, founded upon a decree of the circuit court of the United States, rendered on a bill filed by Moore’s Heirs v. Joseph Kerr, in 1812, and a supplemental bill filed by the same et al. v. Kerr’s Heirs, 1839. The record shows that an interlocutory decree was rendered upon the original bill in July, 1827, under which neither party acted nor took any steps, and tho case was no further noticed on the docket or otherwise, until tho filing the supplemental bill in December, 1839. At that time Kerr’s heirs, the only defendants, came into court by counsel, and admitted that the plaintiff in this action, Trimble, had paid them, after their father’s death, the money directed by tho decree of 1827, and consented to a decree in favor of Trimble (not a party to tho original bill), and, by their attorney, ^executed to him a deed, by virtue of which, Trimble obtained the patent to himself.
    Defendants introduce:
    1. A patent to Joseph Kerr, dated April 10, 1838.
    Deeds from Joseph Kerr to those under whom they claim, one of the deeds dated 1817, the others 1814, each with covenants of general warranty, and prove possession under them, as also prior possession under executory contracts anterior to 1812, made with Kerr.
    It is agreed that plaintiff’s patent covers the land in controversy.
    It is agreed that the patent to Kerr covers the land also, and was issued after Kerr’s death.
    
      It is agreed that the deeds of the defendants cover all the land in controversy, and were made during the pendency of the abovomentioned suit in the circuit court.
    The defendants are James Boothby, J. H. "Wills, James Thompson, and Oliver H. P. Rice, whose tracts are shown on the plat, and are within the boundaries of plaintiff’s patent.
    1. Boothby claims under a deed from Kerr, made August 25, 1814, and subsequent conveyances down to himself.
    2. Mills claims under a deed from Kerr made to John T. Mills, August 25, 1814, and subsequent deeds to himself.
    3. Thompson claims under a deed from Kerr, made to the heirs of Jacob Rich, deceased, May 21, 1817, and subsequent deeds to himself. Also, a title bond from Kerr to Jacob Rich, dated October 25, 1810.
    4. Oliver H. P. Rice claims under a deed from Kerr to Sarah Fields, dated July 5,1814, and subsequent deeds to himself.
    J. H. Thompson and T. L. Hamer, for the plaintiffs:
    The patent of Trimble, the lessor of the plaintiff, covers the land in controversy, and entitles him to a recovery, unless there ^is something in the defendants’ testimony which defeats that right. Defendants rely upon their deeds from Joseph Kerr, and upon a patent subsequently issued to Kerr, by the government, which deeds and patent cover the land.
    These deeds were made, as the agreed case shows, during the pendency of the suit in the circuit court of the United States, brought by Moore’s heirs and devisees against Kerr, and the defendants are therefore purchasers, pendente lite, according to all the definitions, principles, and decisions to be found in the books. Their deeds arc void — not voidable — and they can take nothing under them. The decree of the court in 1827 gave the lands to complainants, and no conveyance to defendants, by Kerr, after the commencement of that suit in 1812, could affect either Moore’s heirs, or Trimble, who claims under them. If there is any one proposition settled, in the laws of this country, more permanently than another, it is this one which leaves a pendente lite purchaser in the samo condition as his vendor.
    The defendants pretend to have had executor’s contracts for these bonds, prior to the commencement of the suit in 1812. There is but one exhibited; but if they were all here, they could'be of no avail to them in an action of ejectment. A court of chancery is the only forum where these evidences of title can be examined) and their merits properly adjudicated.
    It is further insisted by the defendants, that the legal title is in them, under the patent issued to Kerr, who was dead in 1838, and consequently can not be in the plaintiff, under his patent, issued in 1840. The law of Congress of 1836 transfers the title, in those eases whore patents are issued to dead men, “ to the heirs or assigns” of such deceased persons. They claim to be Kerr’s “assigns.” The provisions of this law are too plain to be misunderstood. Where the land has not been sold, the title goes to the heir. Where it has been sold and conveyed by deed, as a general rule, it goes to the vendee. But, in this case, the pretended “assigns” have a void deed-, and of course the title does not vest in them. They are as if *they had no deeds at all. Besides, Kerr receivod the title, if living, when issued by the government, as a trustee for Moore’s heirs, or Trimble, their assignee; and not for himself, his heirs or assigns — the present defendants. Was the law of Congress intended to enable the “ assigns” of a trustee to defraud the real owners out of their property ? Was it intended to enable the parties to a ft-audulont transaction to perfect it? Did Congress moan to place the fraudulent vendees of a trustee of real estate in a bettor condition, alter his death, than they were in during his lifetime? If Kerr liad been living in 1838, when this patent issued, would the title have passed to his grantees (the defendants) through their fraudulent deeds, made pending the suit in the circuit court? No man can for a moment contend for any such doctrine; and it would be strange if his death should jilace them in a superior condition, under this act of Congress.
    No; had Kerr been alive in 1838, the legal title would have vested in him, in trust, to be conveyed to Moore’s heirs, under the decree of the circuit court. Being dead, it vested in his heirs, in trust, for the benefit of these parties. Moore’s heirs transferred their claim to Trimble, who had the suit revived in the circuit court, and Kerr’s heirs came in, and under the direction of the court, conveyed to Trimble by deed, which is on file, all the title they had in the lands. Upon this conveyance, Trimble obtained his patent for the land, the government having thus issued two grants for the same soil, both of which are vested .in the lessor of the plaintiff in this action.
    In a word, we maintain that the plaintiff must recover in this action, because he has the legal title : 1. He presents the patent to himself covering the land; 2. His deed from the heirs of Joseph Kerr, to whom the patent of 1838 was issued. Kerr being dead, the law of 1836 casts the title upon his heirs, in trust for Moore’s heirs and devisees, who were the real ownérs of the land.
    The defendants can not succeed at law, because their deeds from Kerr were mad<s pendente lite, and are therefore void. The patent *to Kerr, after his death, can not aid these deeds, nor does the law of Congress cast the legal title upon persons claiming under such deeds, for any purpose, much less for the purpose of defrauding the true owners, of the soil, in gross violation of right and justice, as well as of the solemn decree of the circuit court of the United States.
    M. Marshall and H. L. Penn, for the defendants:
    The defendants introduce:
    1. A patent to Joseph Kerr, dated April 10,1838 • ^
    2. Deeds from Joseph Kerr to those under whom they claim, one of the deeds dated 1817, the others 1814, each with covenants of general warranty, and prove possession under them, as also prior possession under executory contracts anterior to 1812.
    3. Defendants contend that the legal title of the land in question absolutely vested in them, by virtue of the patent of Kerr, who was dead, by the provisions of an act of Congress passed in 1836, without which act, the government, by the patent, parted with no title. Lewis v. McGee, 1 Marsh. 200; Shum v. Fishback, Ib. 356.
    4. The decree of the circuit court of the United States did not operate as a conveyance of the title. Lessee of Shepherd v. Ross, Comm’r., 6 and 7 Ohio, 394.
    5. The defendants are not bound by the decree made in 1839, and conveyances bottomed thereon; nor were they divested of their vested title thereby.
    1. Because they were not parties to the suit, but should have been made parties to the original, supplemental, and bill of revivor, being then in the actual possession of the land in question, which operated as notice to the complainants.
    2. Because Trimble was no party to the original or supplemental bill; and, if he ever had any interest in the land, it was acquired shortly anterior to the decree of 1839, and that ^decree was rendered by the consent of the parties to that suit, and predicated on facts conceded by the defendants, who had no interest, legal or equitable, in the land or money which they acknowledged the receipt of from Trimble, who it appears obtained leave and filed the bill of revivor in the names of the original complainants in part, and others who alleged to be heirs of such of the original complainants as are not parties to the bill of revivor. He, Trimble, yielding the consent and admitting the facts, on the part of the complainants, upon which the decree of 1839 was obtained, and that without any proof in the cause of the death of the original complainants, who are alleged to be dead, or proof of those who are alleged in the bill of revivor to be heirs of the deceased, that they were such.
    Indeed, it appears strange that there should have been a bill of revivor, or any other proceedings had in court after the death of Joseph Kerr, since it appears that those persons who are alleged to be his heirs (without proof that they were such) were as competent, if willing, to have made the conveyance which they did under the decree of 1839, without that decree, and which would have been equally available without as with that decree.
    3. Because the lis pendens could avail none but the party suing.
    4. Because the lis pendens should be prosecuted closely and continuously. Sugden’s Yondors, 526, 527, top.
    In the present case, it is manifest that they did not prosecute their suit with the unremitted and ceaseless diligence required by law; but have permitted it to remain perfectly dormant, in quiet and undisturbed repose, from the time the decree was rendered, in 1827, until the filing of the bill of revivor, a period upward of twelve years, without urging or offering the slightest apology or excuse for the great lapse of time suffered to transpire.
    They do not pretend to account for this gross negligence and lapse of time in the prosecution of their suit, or offer any reason for not conforming to the requisitions of the decree of 1827.
    *5. Because there was no suit pending at the time the grant issued to Kerr, whereby the title vested in the defendants. The period between the time when the case was noticed on the record, and the filing of the supplemental and bill of revivor (more than twelve years), the benefit of the lis pendens was lost by lapse of time and gross neglect. 5 Ohio, 461; Murray v. Ballow, 1 Johns. Ch. 5, 6 ; Watson v. Wilson, 2 Dana, 406.
   Read, J.

The defendants hold under Kerr. Kerr had contracted to sell the land in question. Possession had been taken and consideration money paid prior to 1812, when Moore’s devisees filed their bill in the circuit court of the United States, to compel from Kerr an assignment of tho military land warrants, by virtue-of which the legal title was to be perfected to defendants and those under whom they hold, under said contract of purchase from Kerr. Kerr, in performance of this contract, in 1814 and 1817, executed deeds, with general covenants of warranty, pending said suit. The legal title was still in the United States. In 1827, a decree was rendered in said circuit court of the United States, in favor of'Moore’s devisees. Kerr never complied with said decree, nor was it in any manner enforced prior to 1839. On April 10, 1838, patents for the land in question issued in the name of Joseph Kerr, then deceased

The decree in favor of Moore’s devisees and the entire chancery proceeding lay dormant and abated, by the death of Kerr, until 1839, when Trimble, as assignee of Moore’s devisees, was permití ed to make himself a party, by supplemental bill and revivor, and obtained a decree, by consent, against Kerr’s heirs; and in compliance with such decree, a conveyance from them to him, and a patent from the United States.

Two legal questions arise as to the doctrine of lis pendente purchasers ; and the effect of the act of Congress of 1836, concerning patents issuing in the name of deceased persons.

* If the interest in these lands, acquired by purchase from Kerr, was to be affected by tho suit of Moore’s devisees — such interest existing prior to tho commencement of said suit — the persons so interested should have been made parties. Not having been made parties, it was their right to clothe their equity with the legal title, as though such suit had not existed, and as decided in respect to a like state of facts, at the'term of this court, Barr et al. v. this plaintiff. But it must be observed that the legal title to the warrants had not been divested from Kerr or his heirs, prior to the issuing of the patent for these lands in his name, as the decree of 1827 had not been complied with. At the timo the patent issued in Kerr’s name the suit was not ponding; it had been dormant for many years and had abated by the death of Kerr. And, to authorize the doctrine of Us pendens, as to Kerr’s heirs, the prosecution of the suit must have been close and continuous. Had Kerr, then, been in life in 1838, when the patent issued, he would have been clothed with the legal title, which would have inured to the benefit of his grantees, under the general covenants of warranty. To whom else could it inure? Moore’s devisees had nothing but an equity. A'nd, admitting even that the deeds of Kerr, of 1814 and 1817, could not have prevailed against deeds made by Kerr, in compliance with the decree of 1827, in consequence of the doctrine of lis pendens, yet the covenants in said deeds would be in full force and life against Kerr; and, if Kerr should, after such suit had been suffered to become dormant, acquire the legal title, it would inure to his covenantees; because the doctrine of inurement is nothing more than an estoppel, to prevent an eviction which would authorize a suit for breach of covenants — or, more comprehensively, and by embracing the covenant of seizin — a performance of covenants by operation of law, instead of resort to action. Kerr, then, could not have evicted these defendants under his patent, because estopped by his covenants. Had he deeded these lands to these defendants in 1838, such deed would have been good as against Moore’s devisees; because, at that time, no suit respecting them was in *elose and continuous prosecution, nor had been since 1837. Hence the covenants of 1814 and 1817, being in life against Kerr, attached at the time of his acquiring the legal title by patent, and have the same force and effect of a deed, with covenants of general warranty, if then, for the first time, made. Hence, the legal title in 1838 was in these defendants ; and if Moore’s devisees, or Trimble, their assignee, held the equity, they would be compelled to make them parties, to compel legal title, if Kerr had been in life. Does the death of Kerr, at the time the patent issued, make any difference? As between Kerr’s heirs and these defendants, there is no question but the act of Congress of 1836 vests the legal title, by the patent, in these defendants; how does Trimble, the assignee of Moore’s devisees, claim that it does not? Upon the principle that a continuous suit was in prosecution against Kerr, and that they had a right to a decree against his heirs, and that these defendants thrust themselves in, and, if permitted to hold, would defeat the object of the original suit. The answer to this is two-fold: that the suit was not a suit in close continuous prosecution, at the time the legal title was vested in these defendants, nor at the time of the commencement of the suit had Kerr the legal title; and that the bill sought no such relief.

The act of Congress, then, in no sense can vest Kerr’s heirs ■with the legal title, nor does it execute a simple trust; but divests the legal title conferred by the patent, in the channel of inheritance or purchase. If not, the effect of the law would have been to invest Moore’s devisees, or Trimble, their assignee, with the legal title; and there would have been no need to have revived the suit against Kerr’s heirs. But it is only claimed that the law conferred the legal title upon Kerr’s hi irs for the benefit ofMoore’s devisees or their assignee. But the inheritance of Kerr’s heirs was cut off by the deeds of their ancestor.

Thus the legal title was in the defendants, by virtue of the deeds of Kerr and patent, before Trimble obtained deeds from *Kerr’s heirs, and patent for himself; and if Trimble, the plaintiff, have any remedy, it is in equity.

Judgment for defendants.  