
    *Donnell and Preston v. King's Heirs and Devisees.
    March, 1836,
    Richmond.
    (Absent Brooke, J.)
    Patents — Bona Fide Purchaser. — A purchaser from a patentee, for valuable consideration, without actual notice of a prior entry of the same land, will be protected in equity, though the patentee’s survey was not founded on any entry.
    Equity Practice — Defence of Bona Fide Purchaser-How Hade. — The defence of purchaser for valuable consideration without notice, may be made by answer as well as by plea. '
    Patent — Scire Facias to Repeal — Quaere.—Entry of land by A. in 1783 : survey in 1798 ; patent in 1800 : survey of same land by B. in 1790, without any entry thereof made by him, and patent to B. in 1793 : A. in 1815 brings scire facias in chancery against B. to repeal his patent — Queere whether equity will entertain the suit, A. having failed to caveat, and there being no proof that B. had actual notice of A. ’s entry ?
    Appeal from a decree of the superiour court of chancery of Wythe, upon a scire facias to repeal a patent for land, under the statute 1 Rev. Code, ch. 119, p. 466.
    By entry on the books of the surveyor of Washington county, on the 29th April 1783, John Donnell of New Jersey, located 600 acres of land in that county. Robert Preston was the surveyor. The survey upon the entry was made, by Preston in person, on the Sth October 1798. This survey having been returned to the register’s office, a grant was issued for the land to Donnell, on the 8th July 1800. And Donnell, by deed of bargain and sale dated the 6th day of October 1814, conveyed the land so granted to him, to Preston.
    Meantime, a survey of 330 acres, part of the same land located by Donnell, was made by an assistant surveyor of Preston, the surveyor of the county, for James and Samuel Braden; but it appeared, the Bradens had made no entry for the land so surveyed for them, for *no such entry could be found. This survey was dated the 22nd March 1790; and having been returned to the register’s office, a grant of this land issued upon it to the Bradens, on the 22nd May 1793. And by deed of bargain and sale, dated the 19th August 1794, and immediately recorded, the Bradens conveyed the 330 acres of land so granted to them, to William King now deceased. '
    The bill was exhibited by Donnell and Preston, in 1815, setting forth the facts above stated, and shewing further, that Donnell had, in fact, sold Preston only an undivided moiety of the 600 acres granted to him, soon after he obtained his grant, and had constituted Preston his agent to take care of his rights and interests in the other moiety thereof, and all other lands held by him in that part of Virginia; that Donnell had been in actual possession of the land, from July 1800, the date of the grant thereof to him, and he and Preston were still in possession; that the survey made for the Bradens in March 1790, not being founded on any previous entry or location, was therefore illegal and fraudulent, and, consequently, the grant issued to them upon that survey in May 1793, was surreptitiously and fraudulently obtained; and that the land lying contiguous to King’s salt works near Abingdon, and the wood upon it being very valuable, the heirs and devisees of King had already cut and removed large quantities thereof from the land, and were proceeding to' cut and remove the residue. Therefore, the bill made the two Bradens, and the widow and the heirs and devisees of King, parties defendants ; and prayed a scire facias to repeal the grant of May 1793 to the Bradens; and meantime, that King’s representatives, might be restrained, by injunction, from., cutting and removing the wood from the' land ; that they might be compelled to make compensation to the plaintiffs for the wood they had already cut and carried away; that the plaintiffs might be quieted in their title ;. and general relief.
    *The heirs of King, in their answer, alleged in the first place, that the 330 acres of land was sold and conveyed by the Bradens to King for 170 dollars, he King having no notice of the plaintiffs’ claim; and then they proceeded to controvert the regularity and legality of Donnell’s, entry, and all the other facts on which they grounded their claim to relief.
    A great many depositions were taken and filed, but it is not necessary to state the-parol evidence, since, without referring to-it at all, the questions of law on which the cause was decided are sufficiently presented by the general state of the case.
    The chancellor, declaring that a scire facias to repeal a patent for lands, when prosecuted by an individual, could only be supported by shewing a better equitable right in the plaintiff than in the patentee,, and that the plaintiffs here were not entitled to relief in equity, because they had shewn no good reason why they had not entered a caveat against the grant to Braden, dismissed the bill; and the plaintiffs appealed to this court.
    Johnson, for the appellants.
    No counsel for the appellees.
    
      
      Patents. — See foot-note to French v. Loyal Co., 5 Leigh 627.
    
    
      
      Equity Practice — Defence of Bona Fide Purchaser-How Made. — The defence of tona fide purchaser for value and without notice may be made by plea or by answer. Rorer Iron Co. v. Trout, 83 Va. 416, 2 S. E. Rep. 713. See monographic note on “Answers in Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571.
    
   BROCKENBROUGH, J.

If this was a-controversy between the appellants and the original grantees, the Bradens, I should be strongly inclined to think that the appellants would not be entitled to relief. Donnell was a resident of New Jersey, and Preston the surveyor of Washington county was his agent. It is not perhaps clearlj' ascertained how far that agency extended; but from the evidence of one of the witnesses, and from a question which Preston put to him, it may be fairly inferred, that Donnell either lodged his warrants with Preston to make locations for him, or at least, that Donnell having made the locations, she made Preston his agent for making survey's on the entries, and carrying ■ "the surveys into grant. The entry made by or for Donnell for the 600. acre tract, bears date the 29th April 1783; no survey was made on it till 1798, and no grant issued thereon till 1800. Meanwhile, the Bradens caused their survey for 330 acres to be made in March 1790; this survey was made by an assistant of Preston, and was placed in the book of surveys ; and Preston must be presumed to have had full notice of this survey, thus recorded on his own book. If it interferred with the land which Donnell had located seven years before, why did he not, as the agent of Donnell, cause a caveat to be entered against the emanation of a grant? The plaintiffs allege no reason in their bill, why a caveat was not entered, nor do they allege or prove any actual fraud practised by the Bradens in obtaining their patent of 1793. According to the authority of Noland v. Cromwell, 4 Munf. 155, and the subsequent cases, I apprehend they shew no ground for relief from a court of equity. Again, more than twenty-five years elapsed from the date of Braden’s survey to the exhibition of the bill, whose object is to repeal the grant founded on that survey. If the plaintiffs had had the legal title to the land, they could not have maintained ejectment for it against the tenants in possession, after such a length of time; and on analogous principles, they ought not, I think, to be allowed to set up an equitable right acquired thirty-two years before the suit brought, against the legal title of the grantees.

Such are my strong impressions. But whether they are correct or not, I am of opinion that King, the purchaser from the grantees, without notice of the latent equity of Donnell, ought to be protected in his purchase; and that that defence may be made by answer as well as by plea. The heirs of King do rely on that defence, in their answers.

I am for affirming the decree.

*CARR, J.

Upon a careful examination of this record, the plaintiffs’ cause wore an unfavourable aspect to my mind; and I doubted very much whether they ought to succeed in setting aside the elder grant to the Bradens. The circumstances which produced this impression, were — 1. The long1'lapse of time between Donnell’s entry and his survey, the first in 1783, the last in 1798 — fifteen years; and then two years more before he obtained his grant. 2. The suspicion raised by the proofs, that the surveyor of the county was interested in the entry and survey. 3. The bill is filed by two plaintiffs, Donnell and Preston, as joint owners of the 600 acres, when the deed produced to support the claim is a deed by which Donnell conveys the whole land to Preston. 4. The facts that in 1790 the plaintiff Preston, as surveyor of the county, surveyed 330 acres of the tract before entered with him by Donnell, for the Bradens, without any entry made by them (as he now asserts) ; which survey was carried into grant in 1793, and the land sold by the Bradens to King in 1794, and the deed put on record immediately ; and in 1814 (twenty years after), this 600 acres, including the 330 sold to King, is bought by Preston of Donnell. These facts, I say, produced an unfavourable impression on my mind against the plaintiffs’ claim: but still I doubted strongly, whether the ground taken by the chancellor could be supported. In this state of suspense, a remark of my brother Tucker turned my attention to another consideration: it was this, that if the representatives of King had pleaded that they were purchasers without notice, he should have thought them protected, unless actual notice was proved, because a purchaser from an elder grantee ought not to be affected with constructive notice of priority of entry. Returning to the examination of the record I found, not indeed a plea, but an allegation in the answer, that the 330 acres of land granted to the Bradens was sold and conveyed by them to King, *he having no notice of the claim of the plaintiffs. Here is a positive allegation of a purchase and conveyance for a valuable consideration without notice, twenty years prior to the acquisition of title by the plaintiff Preston. And I find by examination of the authorities, that this is a defence which may be made by answer, as well as plea; indeed, a plea is an answer in another form, putting the defence upon a particular point, to save expense and delay. Thus, in Mitf. Plead. 177, it is said — “When an objection toa bill is not apparent on the bill itself, if the defendant means to take advantage of it, he ought to shew to the court the matter which creates the objection, either by answer or by plea, which has been defined a special answer shewing and relying upon one or more things, as a cause why the suit should be either dismissed, delayed or barred;” for which Pract. Reg. 273, is cited. In Roche v. Morgell, 2 Scho. & Lef. 721, lord Redesdale remarked that a plea was a special answer to a bill, differing in this from an answer in the common form, as it demanded the judgment of the court, in the first instance, whether .the special matter urged by it did not debar the plaintiff from his title to that answer which the bill required. So, Beames in his Pleas in Equity, p. 2S3, after treating at large on the plea of purchaser without notice, and pointing out the niceties of the plea, says — '“It would seem that the difficulties of the plea of purchaser for valuable consideration without notice, as a mode of defence, may be avoided by adopting the more common mode of defence by way of answer ; the proposition, that if a defendant answer he must answer fully, having for one of its excepted cases, that of a purchaser for valuable consideration without notice ;” citing Stephens v. Gaule, 2 Vern. 701; Jerrard v. Saunders, 2 Ves. jun. 454; Rowe v. Teed, 15 Ves. 372, 378; 1 Ball & Beatt. 325; 2 Id. 303. I have examined the first three of these cases, and find them full to the point; making the defence of purchaser 'x'without notice in the answer, and the defence in that form expressly held good by the court. The same has been our course too; 2 Rob. Pract. 307, and in addition to the cases there cited, Doswell v. Buchanan, 3 Leigh 365. Here, then, is not only a good but a highly favoured defence, well made; and in the whole record there is not a scintilla of evidence to fix even a suspicion of actual notice on King. JSTor is it a case for constructive notice, as no one can suppose it the duty of a purchaser, who sees his vendor with the grant of the commonwealth in his hands, to search the surveyor’s office, to ascertain whether there may not be in existence an inchoate equitable title to the same land. Upon this ground, I am clearly of opinion that the decree should be affirmed.

CABELL, J.

I concur. It is unnecessary to inquire what might be the result of this controversy, if the only parties to it were the original conflicting grantees of the land or their legal representatives. There are other parties. King- was a purchaser from the elder grantees, for valuable consideration, without notice of any objection to their title; and that fact is sufficiently stated and relied upon in the answer. I think it manifest, that such a purchaser is not bound to go behind the patent, and to assure himself that there is no irregularit3r or objection in or to the patent. The exhibition of the commonwealth’s grant is a warrant for his purchase, unless he has notice of some objection to the patent, or of the equitable claim of some other person.

TUCKER, P.

I concur with the chancellor, that under the statute for the regulation of the scire facias to repeal a patent, an equitable title must be shewn in the party prosecuting the petition, where it is sued out by a private individual, and not ex officio by the officers of the commonwealth. The language of the statute puts *this beyond doubt, and its purpose is commendable and judicious. If, therefore, the appellants have not an equitable title against the appellees, the scire faciás must fail.

It cannot be denied, that the want of an entry on the part of the grantees under whom King’s heirs claim, would have been fatal to their title, had it been contested by a caveat. The entry of Donnell, which has not been successfully assailed, must have prevailed over the irregular and unauthorized survey of the Bradens. Nor do I think a failure to caveat would have debarred the appellants from asserting their equity in a court of chancery, as against the grantees, as the want of an entry was, in my opinion, an ample excuse for that failure. The adventurer who has made his entry has indeed always been held to be affected by constructive notice of the entries appearing upon the book of entries. Until he has completed his own works, and perfected his title by a grant, it is his business to look to that book, to see who interferes with his pretensions, and to arrest by caveat the surveying and patenting of a junior interfering location. And when the book of entries exhibits no .such interference, .when upon examination there appears to be no adversary claim, he is justified in presuming that there is no junior locator to contend with. The attempt to procure a survey and patent without a previous entry, thus operates a fraud upon the prior adventurer, who is lulled into security by this gross violation of the provisions of the land law, and files no caveat to the proceeding, because he is ignorant of its existence. This constitutes such a fraud as to give jurisdiction to a court of equity, and to take the case out of the operation of the doctrine of that class of cases of which Noland v. Cromwell is at the head; and as against the grantees, and all persons claiming under them with actual notice of the junior grantee’s equitable title, that title would prevail. But *not so as to purchasers without actual notice. Purchasers from patentees are not bound to look behind their own or antagonizing patents, to see what might have been the state of equities between them. The book of entries is presumptive notice to all ad- I venturers in their progress to a patent, but it would bé greatly mischievous if purchasers under a patent were held to be affected by constructive notice of a prior entry. If the first purchaser would be so affected, every successive purchaser would be affected also, until the benign influence of the equitable limitation should conclude the assertion of such stale and obscure demands. In the case of French v. Loyal Company, 5 Leigh 627, I have presented the reason which suggested themselves in support of this doctrine, and to them I refer.

In the present case, the defendants allege that King’s purchase and acquisition of title were without notice of the plaintiffs’ claim. The allegation is indeed set forth in the answer, and not by way of plea; but the industry of my brother Carr has presented a train of authorities, which shew that the defence may well be insisted on by way of answer. There is not, in the record, the slightest attempt to prove notice, so that the defence stands uncontradicted and unimpugned. The consequence is, that the decree is right and must be affirmed.

Decree affirmed.  