
    *Staples v. Webster.
    [October. 1804.]
    Lands — Return of Survey into Land Office — Case at Bar. —One who Intended to take advantage of the Interval between the acts of assembly for continuing' the time for returning surveys into the land olficc, ought to have entered a caveat. Por if he neglected it, and a patent is granted on the survey, he cannot come into equity for relief against it, a) though he may have made an entry in the interval between the two acts of assembly.
    Agent — Fraud upon Principal— Case at Bar. - One who is an agent in some respects for another, and suffers himself to be consulted and advised with as agent in other transactions of the principal, will not be permitted to take advantage of any irregularity in the course pursued for the principal: especially If that irregularity proceeded from his own advice.
    Staples’s bill states, that James Webster, about the year 1768, entered for about S682 acres of land in Amherst county. That about the 2d day of June, 1790, he surveyed the same, and before the said survey was returned, to wit, on the 23d of October, 1793, the said land was forfeited. That the said Webster, to deceive the public, never paid the taxes on the land, but kept back the survey to avoid the payment. That the law respecting the time for returning surve3s on the eastern waters having expired, and the survey being forfeited, the plaintiff, on the 13th of November, 1792, entered for 2000 acres of the said land, and surveyed the same, as per survey dated 21st December, 1792, and returned to the land office on the 27th of May, 1793. That the said Webster caveated the said survey on the 22d of October, 1793, 21st of March, 1794, and the 18th of April, 1794; but prosecuted neither of the said caveats. That Webster’s plat of his survey in June 1790, was surreptitiously obtained from the assistant surveyor, without the knowledge of the principal, whose name was affixed by the assistant. That Webster, on producing certificates that he had not prosecuted his caveats to the register of the land office, obtained, on the 24th of April, 1794, a patent founded on a fraudulent certificate, and postponed the plaintiff’s patent until the 16th of September, 1794. That the defendant obtained another plat and certificate from the surveyor of Amherst, in virtue of his letter of the 8th of April, 1794, ''the register having refused to issue a grant on the plat and certificate of the survey returned the 23d of October, 1793. That the title was in the commonwealth when the plaintiff located it; and that the defendant’s grant is fraudulent. That the defendant knew the plaintiff had entered for the land on the 13th of November, 1792. The bill therefore prays, that the defendant may release to the plaintiff the said 2000 acres of land included in the plaintiff’s patent of the 16th of September, 1794.
    The answer of James Webster states, that he admits having entered for about 5682 acres of land in the year 1768. That, being a citizen of Maryland, he appointed the complainant and John Scott his agents for securing his title to the land. That the plaintiff knows his assertion, that the defendant kept back the survey in order to defraud the commonwealth, is untrue. That the plaintiff likewise knows, that money was deposited with him to complete the defendant’s title, and that it is not the defendant’s fault that the title is not completed. That the defendant is informed that when the time for returning surveys on the eastern waters, was about to expire, the defendant’s agents consulted together, and determined to hold up the works, (though they had money in their hands to pay the fees) and to take the land up with other warrants for the defendant. That, after the time had expired, the plaintiff set out for the surveyor’s office, and fraudulently detained a messenger sent by Scott to locate the lands for the defendant; and, in violation of the trust reposed in him, located them for himself. That the defendant did not employ the surveyor, but it was the plaintiff who employed him; and if any thing was improper, in the signature to the works, it is unknown to the defendant, who neither admits nor believes the fact, but avers the works returned, to have been signed by the principal surveyor; and that the second copy was required by the register, because the first did not properly express the beginning.
    The deposition of George Hilton, states that on the 15th of October, 1790, the defendant employed him to lease or *sell the land. That he told the defendant he should not think himself safe in doing so without the patent. That the defendant told him he should put the works into Scott’s hands, leave money with him to pay the charges, and direct him to send the patent to the deponent. That, in September 1793, the defendant came to the plaintiff’s house, and told him he thought the plaintiff had used him ungenerously, in laying warrants on his lands. That the deponent observed, he thought the defendant had told him Scott was to return the works, and that he believed if the defendant had procured Staples to have done it, that he would not have neglected it. That the defendant replied, that he believed, if Staples had been entrusted, the business would have been complied with.
    The deposition of James Higginbotham, states that on the 2d of June, 1790, a survey was made for the defendant for 5682 acres, by Montgomery, the deponent’s assistant. That Montgomery, as he informed the deponent, delivered a plat and certificate of the same to Webster, with the deponent’s name affixed, without the deponent’s knowledge. That in about a month afterwards, Montgomery brought a plat and certificate without a name subscribed, to the deponent, to be entered in the plat book. That on the 13th of November, 1792, the plaintiff entered for 2000 acres, part of the said 5682. That the defendant made an entry on the same day for 3682 acres, the balance of the said 5682 acres. That on 21st of December, 1792, the defendant surveyed the 2000 acres for the plaintiff, and delivered a plat and certificate for the same. That afterwards Scott desired the deponent to make out a plat for the said 5682 acres for the defendant; which the deponent did, but without any certificate. That the deponent received a letter dated 8th of April, 1794, from the defendant, requesting a new plat and certificate, as no certificate had accompanied the other plats; nor were the beginning, ending and natural boundaries described. That the deponent in consequence thereof made out a plat and certificate, which he sent, although he had heard, that ^Montgomery’s plat and certificate mentioned the beginning and boundaries.
    The deposition of John Old. He was a witness to the instrument from Webster to Hilton, empowering him, as assistant to Staples, to sell land joining Hilton’s lines; and that Webster told Hilton he would make a right to any land sold by Staples, or him.
    The deposition of J. Scott, states that he recommended Thomas Staples to the defendant, who employed him to survey the ■lands, and gave him some money as he thinks Staples informed him. That the defendant likewise gave Staples’s bonds and notes to the amount of about ¿£50. That the defendant left the plat and certificates with the deponent to be returned with the works. That the deponent was carrying them down to Richmond, but was taken ill on the road, and sent them to Cabell to be returned; that Cabell failed to do so, and the deponent went down to Richmond the next spring, but Cabell said he had brought the wrong papers through mistake; and observed, that there would be a great saving in laying new warrants on the lands: which C. Lewis the register also recommended. That the deponent then conferred with Staples, who approved of the plan. That the deponent, having seen an advertisement of warrants for sale by Staples, offered to buy; but he said he had sold all but one of 1100 acres; which he refused to sell to the deponent: who afterwards bought enough to cover nearly all the land, and hastened up to have them laid. That he dispatched Webster’s messenger to the surveyor for that purpose; but Staples falling in with the messenger on the road, delayed him until he could go himself with him, and as soon as they arrived at the place, Staples run and thrust his warrants into the surveyor’s hands first. That the deponent went and remonstrated about it, with Staples; who said he would not have done so, if Webster had paid him. That there were about ^13 due him, which the deponent offered to pay, but he refused to take it. That the deponent was not Webster’s agent. That Staples told him he had sold a bottom to Hilton.
    *The deposition of George Hilton states, that Staples boarded with him whilst surveying. That he offered to take 10 acres for it. That Staples said he would consult Webster, who afterwards assented, and gave it in writing that he would convey. That Webster on being told if he had given the business to Staples, instead of Scott, he would have had it done, an- | swered, that he believed he should. That Webster gave the deponent a power of attorney to rent or sell the lands; and said he would leave the works with Scott, and money to return them, and would desire him to send the patents to the deponent, which he supposed would be in about six weeks. That he considered Staples, when he was survej’ing, as the defendant’s agent.
    The deposition of S. Cabell states, that Scott gave him the works and eight guineas to return them to the register’s office. That he omitted it through mistake; and afterwards recommended his laying new warrants.
    The deposition of James Higginbotham. That on,the 12th of November, 1792, in the night, he found Staples and Elisha Davis waiting for him at Samuel Higginbotham’s, to enter Lands; and immediately on his coming into the house, Staples took him out and delivered him a copy of an entry for 2000 acres with a land warrant for the same, to be located on the said tract of 5682 acres. That immediately on his return into the house Davis took him out, gave him a copj' of an entry and warrants for 5400 acres, to be located on the said 5682 acre tract. That he made both entries, but gave Staples’s the preference. That Staples and Davis came there together. Describes the number of warrants, &c.
    The deposition of James Montgomery. That he surveyed the said 5682 acres; pursued Webster to get his fee for the same; overtook him and signed Higginbotham’s name in order to get the fee, but did not tell Webster so, as no question was asked about it. That Staples always told him that he as agent for Webster could not pay the fees, and that he had paid the chain carriers partly out of his own pocket.
    *The deposition of John Beaver. That he saw Elisha Davis write a narrative for Webster.
    The narrative of Elisha Davis. On his way to the surveyor’s to make the entry, he was delayed by Staples, to whom he told his business, and asked his assistance. That Staples took out the surveyor and made his entry, whilst he Davis was getting out Webster’s warrants.
    The exhibits are:
    Two caveats of different dates by Webster against a patent to Staples. The caveat claims from entries made under the regal government, and prior to those of Staples.
    Staples’s entry; which states it to be part of the 5682 acres.
    The high court of chancery dismissed the bill with costs; and Staples appealed to the court of appeals.
    Nicholas, attorney general, for the appellant.
    Webster’s entry was forfeited at the time Staples made his; for the latter was made in the interval between the expiration of the time allowed by the act of 1791, ch. 4, p. 5, for returning anterior surveys, and the passage of the act of 1792, ch. 7, p. 31, for continuing the time: and therefore the entry of Webster was forfeited by the general law, prescribing that the survey shall be returned into the register’s office, within one year from the time of the survey. Of course, Staples bad a right to make the entry, and ought to be considered in the nature of a purchaser for value, as he bought the warrants of the commonwealth, which gave him a right to locate them on any unappropriated land. The delay of Webster to return the survey was premeditated, and done with a design to defraud the commonwealth of her duties. The patent issued on the survey, which was furnished by Montgomery, who subscribed the name of Higginbotham, the principal surve3’or, without his knowledge, or authority. The defendant filed his caveats, and neglected to prosecute them with the fraudulent view of anticipating the plaintiff’» grant, by obtaining one himself. The agency of Staples is not ''proved. Scott is not a proper witness: But, if he was, even he don’t prove the fact; because his testimony only goes to prove that Staples was an agent to have the survey made, and not to return it to the land office. The certificate of Davis is not sworn to, and is no evidence in the cause.
    Call, contra.
    The act of 1792, sustains the survey of Webster, by relation: For the words are general that the further time of twelve months, from the passing of the act, shall be allowed for returning all plats and certificates of surveys into the land office, any law to the contrary notwithstanding. These words admit of no distinction ; and therefore it is submitted whether they do not save the survey of Webster. Staples was the agent of Webster. Scott, (who, having no interest, is certainly competent,) says so expressly. He says that he advised with him as the agent, and that he recommended Scott’s making new entries under other warrants: after which, nothing can excuse his conduct in anticipating Scott’s messenger, when going to have the entries made. That he delayed him with that view, is proved not only by the certificate of Davis, but by Staples’s own acknowledgment to Scott, who charged him with it. But the agency of Staples does not depend upon the testimony of Scott alone. Old says, that he was united with Hilton in the power to sell Webster’s lands; which shews that a general confidence was reposed in him. Besides, the very admission that he was employed to superintend the survey, proves an ulterior act was to be done. For he was either to return the survey into the land office, or to furnish Webster with it in order to enable him to do it. But he did neither; and although Montgomery says he gave a copy to Webster, yet that was not attested by Higginbotham, and is now impeached by the appellant upon that ground: While it appears the register would not issue the patent to Webster until he procured the copy from Higginbotham himself. So that, in fact, neither Staples himself, nor *any body for him, ever provided the defendant with a proper copy and certificate in time: and therefore he ought not to be received to object the omission to return the survey into the land office, within the period prescribed by the act. But there is a fatal objection to the plaintiff’s claim: for it does not appear that he ever entered any caveat against the patent to Webster; and the act does not render the survey void, if not returned within twelve months, but merely gives any other person a right to caveat against it. If, however, no such caveat be entered, the party may go on and obtain his patent. Consequently, as the plaintiff failed to caveat, there is no objection to the defendant’s title. For it makes no difference that the defendant entered caveats against a grant to the plaintiff; because that did not hinder the plaintiff from caveating a patent to the defendant; and this neglect is the more remarkable, as it appears that the defendant failed to prosecute his own caveats, which therefore might have been avoided by the plaintiff long before. This leaves him without an excuse for his delay to caveat against a grant to the defendant; who, having gone on and completed his title, cannot now be disturbed.
    Wickham, on the same side.
    Webster having the legal right, and equal equity, cannot be postponed.- Therefore if the plaintiff had even had a prior equity he could not prevail; but the fact is otherwise ; for our equity originated before his. The act of 1792, destroyed Staples’s right; for there is no saving clause, but the provisions are general. Nor can they be objected to on the ground of its being a legislative decision between two individuals ; for that is not the case, because it is a general political regulation, not intended for a particular cause. Staples -was the agent of Webster; and therefore his conduct in making an entry in his own name, was clearly fraudulent. It is in vain to say that he was only agent to superintend the survey: for still that implies that the business was to be effectually done, on behalf of an absent man, whose removal from the scene of ^action put it out of his power to do it himself. The mere act of undertaking the business in this situation of things, implied that it was to be done in such a way, that it should be useful to the employer, and that could only be by returning the works into the land office within proper time. This is further proved by his being furnished with money to pay fees; because the obtaining the plat and certificate, and returning them into the land office, were the objects of part of the fees. The failure of the plaintiff to caveat the grant to Webster, puts an end to the dispute ; because 1 there was nothing to prevent him, and, without a caveat, the defendant had a right to complete his title; for the act does not avoid the survey after the twelve months, but only gives a right to caveat: which the other party may exercise or not; but if he fails to do it, the owner of the survey has an unquestionable right to his grant.
    Call, on the next day said : It is clear that the act of assembly does not destroy the survey, but merely gives a right to caveat. For the words are, that if the survey be not returned within the twelve months, i-'it shall be lawful for any other person to enter a caveat in the said land office against the issuing of any grant to him, expressing therein for what cause the grant should not issue.” Chanc. Rev. 96. To avoid the survey therefore, it is necessary that a caveat should be actually entered; for a mere right to locate the lands is not sufficient: because the survey is still capable of producing a grant. For if _ there be no interfering claim,, the party, according.to every day’s practice, may go on to obtain his patent, and complete his title. But there is no difference between the non-existence of an interfering claim and such interfering claim not -appearing in the legal mode. For it is the legal mode which gives effect to the claim, and without it, the claim is useless. Scott v. Bronaugh, at the last term, (ante, p. 78). Here the legal mode has not been pursued, as no caveat has been entered, although there was nothing to prevent it. For the plaintiff was in Richmond, *and might have done it; and therefore has no excuse for the neglect. The caveats of Webster were no hindrance; because they were not made until long afterwards; and then not prosecuted: so that even that pretext is wanting. Besides at the time those caveats were filed, the plaintiff had no right to caveat.' For the act of 1792, by extending the time for returning the survey, extinguished the right of the plaintiff to caveat. But this interpretation is confirmed by an act of the same session; which provides that if there be no caveat before the survey is returned, there shall be no forfeiture afterwards. Rev. Code, 147, (j 36. Which is decisive, and expressly abrogates the right to caveat, in future. The result is that the plaintiff cannot claim the benefit of a law, which he has never complied with. These provisions of the laws cannot be objected to on the ground of their being ex post facto. For they do not take awa}- any right which the plaintiff had already asserted, but merely prohibited him from exercising it in future. They do not prevent the rights acquired under an actual caveat, but forbid his acquiring such rights afterwards. In this point of view, it is less exceptionable, than the case of Proudfit v. Murray, 1 Call, 394; where the drawer, but for the relation, would not have been liable to the 10 per cent. There are several analogous cases, upon other acts of assembly, which have never been disputed. Thus, before the act of ’92, the tenant in a writ of right might have defended himself against the demand-ant, unless the latter could have proved a seisin by taking of the esplees; but the act repealed that rule: and thus what was a good defence at the time of passing the act, is not so now; and he, who before that act might have defeated the plaintiff, by an ex post facto operation of the law, will now lose his land. So, before the act of assembly for limiting writs of error, a man had a right at any distance of time, to reverse an erroneous judgment. But that act abridged the right, even as to prior judgments; and its authority never has been doubted. Besides the act of 1792, Rev. Code, 147, is transcribed from the act of 1782, chap. *49, sect. 4, Chanc. Rev. 169: which was a general law, and therefore all objection, upon the ground of ex post facto, fails.
    Randolph, in reply.
    The entry was sufficient, and a caveat was not necessary. Indeed the plaintiff could not caveat, before the survey was returned. The entry was an inception of the title; and therefore will prevail against an antiquated survey; which, not being grounded on a warrant, but merely on an entry before the revolution, is not within the act of assembly. When Staples was in Richmond he had not made his entry, and therefore could not caveat. The case of Proudfit v. Murray, does not apply; because the act of 1792, does not embrace the intermediate time, but takes effect from its passage only. The case of the writ of right has no weight; because that merely relates to a rule of evidence; and that of the writ of error took away no rights previously acquired. The act of 1782, does not apply; because that relates to surveys prior to the time of passing it. The agency of Staples is not proved. Hilton says the plats were to be left with Scott to obtain patents; and in November, Scott had the plats and certificate which he had received from Webster himself. Scott then was, in fact, the agent; and ought to have returned the survey. It follows therefore that Staples was agent as to the survey, but Scott as to returning it into the land office, and obtaining the patent; the money for which was lodged with Scott, and not with Staples: who therefore was not bound to abstain from making an entry for himself; because there was no confidence, between him and Webster, with respect to the return of the survey: of course he was at liberty to manoeuvre with Davis, and take advantage, if he could. Webster meant by delays to defraud the revenue; for the new entry was advised in order to avoid the payment of the fees. Staples has been guilty of no omission; for the register could not receive Webster’s survey, and therefore no caveat was necessary. The three caveats by Webster, without prosecuting *either, marks a fraudulent intent. The application to a court of equity was proper; because the defendant had got an elder patent, when Staples had a better right in equity.
    (TUCKER, Judge — Asked if the plaintiff might have entered a caveat, and did not, whether he could come into equity for relief?)
    Randolph. If the party has two remedies he may use either.
    Wickham, he ought to have pursued the legal remedy,- and entered his caveat, or shewn a'reason for not having done it, as accident, fraud, &c.
    Cur. adv. vult.
    
      
      See foot-note to Carter v. Ramey, 15 Gratt. 346.
    
    
      
      See monographic note on “Agencies” appended to Silliman v. Fredericksburg, etc., R. R. Co., 87 Gratt. 119.
    
   TUCKER, Judge.

The first point insisted on for the appellants was, that Staples had a right to the 2000 acres of land, as founded on the entry made by him upon the 13th of November, 1792. And, in support of this position, it was said, that the act of 1791, ch. 4, having expired on the 7th of November in that -year, and that of 1792, ch. 7, which was on the 15th, relating only to the day of its passing, an entry made on the 13th, was valid. This is admitted, supposing that there was no prior claim upon the land, which had not been discussed in any judicial controversy. But where such claim remain undiscussed, the forms of law must be observed, before the validity of the claim depending upon vested rights, which might possibly have become liable to forfeiture, could be pronounced upon. The forms prescribed by our act concerning grants of land, May 1779, ch. 13, are the proceedings, "by way of caveat. Staples being apprized of Webster’s claims, (which he' had himself been employed to carry into effect,} ought to have entered a caveat in the manner prescribed by law, that the fact might be established, whether Webster’s inchoate rights had, through neglect, become absolutely and irredeemably forfeited, *or not? and he ought, moreover, to have suggested his own rights, founded upon his entry, made after Webster’s supposed forfeiture had been incurred. This was the regular course prescribed by the act under which both parties must claim; and the object of that course of proceeding is to establish any controverted question, which of the contending parties has the better title to obtain from the register,’as agent of the commonwealth, a patent, which would be complete evidence of a legal title to the lands against all persons whatsoever, provided the party obtaininig it shall have complied with all the requisites of the law. One of which was, that when any prior, inchoate right or claim did in fact exist, the subsequent claimant should call upon such claimant, by a regular caveat, to shew cause why it should not be vacated by the judgment of a court having competent jurisdiction, and the claim of the caveator preferred to his? If this process were neglected, the register, for whose information and government the proceedings upon the caveat were required, might issue patents to both, (all other requisites of the law being complied with,) without enquiring or regarding whether their respective claims interfered with each other or not: and it was the folly of the person having the subsequent, but more valid claim to a patent; if, by omitting to file his caveat, he permitted the elder claim, which might have been avoided by a caveat, to be established by an elder patent. Thus, if the plat of survey of the elder claim was not made according to law, or his plat were not returned to the register’s office, within the time prescribed by law, his claim was voidable by a caveat. But if no caveat were entered, and the register had made out a patent, no objection to the patent could af-terwards be made, whatever irregularity there might have been in the survey, or laches in returning it. The proceeding by caveat may be compared to a bill of inter-pleader: The register, as the officer of the commonwealth, withholding any grant for the lands, until the parties to the caveat have discussed their several claims before a court, and a judgment on those claims be pronounced. 1 Wash. 40. If these ideas be ^correct, Staples, having omitted to enter a caveat, is no longer entitled to avail himself of any legal advantage, of which he might have availed himself by that course of proceeding. And even by that course he must have shewn a superior legal right to that of Webster, upon the trial of the caveat, or the court must have given judgment for Webster; the effect of which would have been at grant for the lands to him, unless a new caveat, founded upon a better right than his, should afterwards be prosecuted with effect. Field v. Culbreath, 2 Call, 547.

These lands lying upon the eastern waters of the commonwealth, could only be taken up by persons entitling themselves thereto, according to the directions of the act of 178S, ch. 42. After which, no warrant could be granted for lands on the eastern waters of the commonwealth, but upon payment of £2S per hundred acres, instead of two dollars, the price of lands on the western waters. Staples’s warrant bears date October 4th, 1792. It is true, it is an exchange warrant, and might have been a legal warrant on which to ground his entry. But he must, upon the trial of the caveat, have shewn that it was such, or otherwise Webster must have bad judgment in his favour. Coming into a court of equity, after having neglected (perhaps wilfully) to pursue his remedy given by the statute, he must make out a complete title in equity, not oniy against Webster, but against the commonwealth, whom he charges Webster, expressly, with an intention to defraud. His patent is not in the form prescribed by law; nor does it shew, that his warrant was such a one as entitled him to locate upon lands on the eastern waters. Whether his patent, not being in the form prescribed by law, which requires the consideration to be therein expressed, (1779, ch. 13,) is absolutely void at law, is a question upon which I am not prepared to decide at present; but a plaintiff in equity, I conceive, is bound to shew that there is no latent equity against himself: otherwise the court will leave him where it finds him. And since his patent is not in due form, nor expresses the consideration *upon which the grant was made; nor is that consideration clearly shewn on the part of the plaintiff, but, for aught that appears to the contrary, might not have been such as the law required, the court, I apprehend, will not aid him against another person, who has obtained a legal right, and whose equity is not only prior, but may be stronger.

There is another point of view on which I shall just mention that this question may be considered. A court of equity professes to relieve against a forfeiture incurred at law, where compensation can be made. The commonwealth, by the act of the 15th of November, 1792, ch. 7, released her claim to the forfeiture, which Webster might have incurred by not returning the plat. His equity against the commonwealth was restored and kept alive bj that act. If Staples, in the intermediate time between the expiration of the former, and the passing of the latter act, acquired a legal inchoate right to take advantage of Webster’s forfeiture, he ought to have pursued his remedy at law, by caveat; but not having done so, equity will not enforce Webster’s forfeiture; for that would be assuming the power of enforcing, instead of relieving against a penalty.

But let it be admitted, that Staples’s patent was strictly in conformity to the directions of the law, and that he had paid the consideration of ,£25 per hundred acres, required by the act of 1785, yet his equity would not be stronger than that of Webster: and were there no priority on the side of Webster, as there certainly was, equity would, I conceive, leave the parties precisely in the same situation in which the law and their own conduct had placed them.

2. I shall next consider the third objection to the chancellor’s decree, insisted on by the appellants. That Webster illegally and improperly obtained a patent prior in date to that of Staples: which objection seems founded principally upon that part of the bill, which charges Webster with a fraudulent design in entering his caveats, without any intention of prosecuting them.

*Webster conceiving that he had a prior, and better, title to a patent for the lands than Staples had,, had a right, under the law, to enter a caveat against any interfering claim, whether prior, or subsequent, to his own. Staples, if he thought proper, might have availed himself at law, of the dismission, or failure to prosecute the caveat. He did not; nor was there any moral obligation on Webster not to renew his caveat, as often as he pleased. The priority which he gained in his patents by entering those caveats, was no fraud against Staples; but imputable to Staples’s neglect to enter a cross caveat; or rather to his neglect in not entering a caveat against Webster’s title to a patent, as soon as he had made his own entry. His counsel were mistaken in saying he could not enter a caveat until his survey was returned. He might have entered it the moment after he had entered for the lands; and I have already shewn that, if by neglecting so to do, he has lost his legal inchoate right to a forfeiture, a court of equity will not enforce that forfeiture for him.

3. I shall make very few remarks upon the second point, insisted on by the appellants, which I have chosen to consider last.

The whole tissue of the evidence in this cause confirms me in the opinion that Staples, from first to last, ought to be regarded as Webster’s agent. To the last moment, when he was meditating a most unconscientious and fraudulent advantage of his principal, he was consulted, and gave advice in that character. The neglect to return the plats in due time, appears to be fairly imputable to him; for, although the survey was made in June 1790, under his eye, he seemed never to have given himself any trouble about the business; but refused paying the surveyor his fees, although it is in proof that Webster left money with him for that purpose. Webster having been pursued by the surveyor, who dispaired of getting his fees from Staples, went to his house to deliver the plats to him, in company with Scott; but, not finding him, delivered the plats to Scott. This is what so much stress has been laid upon in the argument. But surely *it did not discharge Staples from his reponsi-bility to Webster; especially as the plat appears to have been defective. Staples’s agency, I conceive, extended to every thing necessary to be done to complete Webster’s title. His conduct, both in appearance and in fact, was a palpable fraud upon his employer. I am therefore of opinion that the chancellor’s decree of dismission ought, upon every ground, to be affirmed.

ROANE, Judge.

In the view I have taken of this subject, I do not deem it at all necessary to enter into the legal title of the land in question. The appellant comes to demand the aid of this court to set aside that legal title, and decree him the land. This application can only be sustained on the ground of his superior equity. It is an universal rule that he who asks for equity must do equity; or, more strongly, must not have done iniquity. I hold it also to be a rule that in applications of this kind, which go to the discretion of the court under all the circumstances of the case, the conduct of the party applying, in relation to the subject in question, must appear to have been fair and pure. If it has been of a contrary cast, and much more if it were fraudulent, he comes with a bad grace into a court of equity.

In the case before us, the evidence does not seem to me satisfactory that the appellant was the agent of the appellee’s testator, for the purpose of completing his title, by returning the papers into the land office and taking out the patent: But this I hinge upon, that he suffered himself to be consulted as such agent, and advised the very course which produced the lapse, and enabled him to make the entry. It may have been the weight of this advice, from a person supposed to stand in that relation to the testator of the appellee, which determined Mr. Scott to purchase new warrants, instead of then returning the works, and taking out a patent. The appellant further followed up his advice by furnishing Scott with a land warrant, thus enabling him to make a new entry. Is it conscientious and just for a *man admitting, by not denying, himself to be the friend and agent of another, to advise and assist in effecting a faulty course of proceeding, and then to step in and avail himself of the defect to his own emolument? To avail himself of the knowledge of a fact, to wit: the non-return of the survey, which was communicated to him in a confidential manner, and in character not disavowed by him, viz. as agent of the other party? Would not this be sanctioning unfair, if not iniquitous conduct, and enabling a man to take the benefit of his own wrong? I am sure a court of equitj will not be aiding to abet a procedure of this kind.

Thus stands the case "upon the original conduct of the appellant, and if his subsequent entry had even been made without circumstances indicating trick or unfairness; the result is, however, much corroborated by the circumstances which actually attended the making of the entry. I throw out of my view all the testimony on this point referred to in Beaver’s deposition, and that mentioned in Scott’s as derived from the information of John Davis. But yet there is enough to impeach the integrity of that transaction. The hurry and unfairness with which his entry was made, when he had gone in company with the agent of his friend, a stranger to the surveyor, and most probably had lulled him into a belief of perfect security on the subject of the entry, by his professions and conversation, is alone strongly indicative of trick and contrivance. But this is not all, he afterwards owned to Mr. Scott that he had taken the advantage of Mr. Webster, and endeavoured to excuse himself therefor.

This expression of having taken the advantage is strongly descriptive of the real character of the whole transaction upon his part, and that character imperiously forbids us to sustain his pretensions in the present instance. I am therefore for affirming the decree.

RLiSMING, Judge.

It is unnecessary to go over the ground alreadj taken by the judges who preceded me: and I shall ^'content myself with observing that he who comes into a court of equit3 for relief must prove fraud in the defendant, and uprightness in his own conduct: But Staples shews neither; and therefore I am for affirming the decree.

CARRINGTON, Judge.

It is unnecessary to consider the conduct of Staples in these transactions; because it is clear that Webster has at least equal equity; and he has the legal title besides. Therefore I concur that the decree ought to be affirmed.

Decree affirmed.  