
    *Frederick Gibler and others v. James M. Trimble. Josiah Roberts and others v. The Same. Polly Barr and others v. The Same. William Carothers and others v. The Same.
    Persons having an interest in lands by contract of purchase with the legal holders of military land warrants, having paid the purchase money, and being in possession, aro necessary parties to a suit instituted against the legal holder of the same, to compel an assignment of such warrants, and all interest in lands acquired under them by entry, location, and survey.
    That, if not made parties, they are not prevented by the doctrine of lis pendens from proceeding, during the pendency of such suit, to clothe their junior equity with the legal title, and procuring patents from the United States.
    That the doctrine of stale equity will apply in such cases, to protect the junior equity, after an undisturbed possession, for a great length of time.
    These are four cases of bills of review, reserved in Highland county. The leading facts and the principles involved in each being tho same, they are all embraced in one decision.
    The decrees sought to be reversed in these cases were pronounced at court in bank in 1842. The same material facts are common to all the cases, and all will be considered together.
    The facts material to the decision of these cases are, in substance, these:
    One Archelaus Moon died in 1796, possessed of four Virginia military land warrants, Nos. 5,703, 5,704, 5,705, 5,706.
    He had two sets of children. To the one ho devised throe warrants. The others, not devisees, to wit, Josiah F. Moon, George and Martha, his wife, formerly Martha Moon, claiming to be the only heirs of A. Moon (as recited in tho assignment), ^assigned these warrants to one Price, who assigned the same to Joseph Kerr.
    Kerr, claiming to be the sole owner of these warrants, contracted with the complainants to soil the lands in dispute, and secure the title by taking the steps required to procure patents. The purchasers, under this contract, went into possession.
    
      The Barrs allege purchase in 1803; possession in 1808; entry under the warrants, March 22, 1810; survey, March 12, 1812; patent, February, 4, 1819.
    The Giblers purchased 1807; have had possession ever since; madeentry November -22, 1814; survey, November 28, 1814; and obtained patent, October 2,1819.
    Davidson and Roberts purchased in 1800; have had possession ever since 1806; made entry November 22, 1814; and procured patent on December 12, 1824.
    Oarothers and others came within the principles of the above state of facts, as they acquired title under them.
    Thus these complainants were all possessed of the legal title by patents.
    Trimble obtained the decree which is now sought to be reversed, that these complainants should convey the land to him, and account for profits, upon the ground that they had acquired the legal title under such circumstances, and with such notice of the equities of those under whom he claims, that they were merely trustees, holding the legal title for his benefit.
    The facts relied upon to charge respondents as trustees, are as follows:
    In 1812, the devisees of Moon filed a bill in the United States circuit court in Ohio — subpoena returnable January 1, 1813 — to compel Kerr to assign said warrants, and all locations, entries, and surveys, or interest in land, acquired under and by virtue of said warrants, and obtained a decree to that effect, embracing the land in controversy.
    This cause was appealed to the Supremo Court of the United States, and the decree reversed, for the reason that the complainants claimed under the will of Archel'aus Moon, or *Archibald Moon (being known by the name of Archelaus and Archibald), which had been executed, proved, and admitted to record 'in the State of Kentucky in the year 1796, but had never been proved and recorded, according to the laws of the State of Ohio, and was therefore not competent to transfer lands in Ohio. This case is reported — Kerr v. Moon, 9 Wheat. 566. The cause was then remanded for further proceedings, and finally a decree was had in the circuit court of the United States in 1827, that Kerr, by proper assurances, should assign, transfer, and convey to said Moon’s devises said warrants, and all locations, entries, surveys, lands, and interests in lands acquired under the same. Kerr never, in any respect, executed said decree; nor did such decree, of itself, it is conceded, operate as a conveyance or transfer of title under our statute. In 1829, the devisees of Moon, under this decree, had partition of the lands among themselves, and proceeded to make sales.
    Trimble, the present respondent, became a purchaser, but the present complainants having the legal title, refused to give possession. Kerr, in the meantime, died; the decree of said United States circuit court being unexecuted by him, and no effort was made either to carry said decree into execution, or to revive the same, until the year 1839.
    In the year 1839, by leave of court, and by consent of parties, Trimble was permitted to file a bill of revivor, and a supplemental bill, in said circuit court, against Kerr’s heirs ; and by consent a decree was rendered against them, and,'under said decree, conveyances of the lands in dispute were made to Trimble in 1840.
    In view of these facts, the decree, sought to be reversed was rendered against complainants, in favor of Trimble. It was supposed that complainants having perfected their legal titles, after suit in 1812, in the circuit court, by Moon’s devisees, under whom Trimble holds, and decree against Kerr, that the doctrine of lis pendens would operate to entitle Trimble to the legal titles so acquired.
    . *John Jollieee and J. Winston Price, for complainants in review :
    It is a general rule of law, founded upon the clearest principles of natural justice, that no person shall be bound or affected by judicial proceedings, unless they have had an opportunity of producing evidence on their behalf; of examining the witnesses of the opposite party, and being heard by their counsel. 4 Peters, 466; 1 Peters, 328; 2 Peters, 163; 2 Aiken (Vt.), 219; 1 Litt. 181; More v. Farrow, 1 Litt. 118; 1 Car. 166; 2 Nott & McCord, 25; 1 Marsh. 526; 9 East, 192, and cases collected in note to 9 East, 194; 15 Johns. 121; 10 Johns. 162; 4 Cowen, 294; 5 Wend. 151; 9 Cowen, 227; 19 Johns. 39; 17 Johns. 146; 14 Johns. 248; 9 Mass. 462 ; 1 Dallas, 2161; 3 Wilson, 341; 2 Wilson, 382; 3 Ohio, 541; 5 Ohio, 463; 9 Ohio, 111; 3 Monroe, 267; 4 Monroe, 544; 6 Monroe, 70, 505.
    
      In 3 Ohio, 542, Judge Sherman, in delivering the opinion of the court, said: “ This rule of Us pendens, adopted by courts of equity, from necessity, and in imitation of the common law, that where a defendant in a real action aliens after suit brought, the judgment in such real action will overreach such alienation, is yet considered as against a real and fair purchaser, without actual notice, as a hard rule, and the courts will gladly avail themselves of any defect in the pleadings or proof of the plaintiff, to prevent its operation;” and he refers to 2 P. Williams, 482. See also 2 Sugd. on Tend. 327, 9 ed.
    The original bill in the circuit court was filed December 7, 1812.
    In the argument of the case before the Supreme Court of the United States, it was contended, “that the interest of Moon in these lands ought to be considered and treated as personal estate.” But that court were unanimously of the opinion “ that it can by no means be admitted that this is to be considered in the light of personal property. ”
    . *The present complainants, or those whose titles they claim, were all in possession of the land sought to be recovered by the defendant in review, before the year 1812, before the bill was filed in the circuit court. All that is necessary for the purpose of my argument is, that the persons in possession at the commencement of the suit had the right to be heard before decrees could be made affecting their interests in the lands, whatever those interests were.
    The case of Parks v. Jackson, 11 Wend. 444, is in point.
    I ask the especial attention of the court to the luminous opinion of Senator Seward in that case, because I submit that it is exactly applicable to the State of Ohio — so clear and irresistible is the argument, that the whole court (twenty in number), see page 466, with the exception of the chancellor, voted to reverse the judgment.
    See also Fenwick’s Adm’r v. Marcy, 2 B. Mon. 70; 9 Dana, 198; Jackson v. Dickinson, 15 Johns. 313.
    In Hopkins v. McClaren, 4 Cow. 678, the same principle is decided.
    “No tenant, who was in possession anterior to the commencement of the ejectment, can be dispossessed upon a judgment and writ of possession to which he is not a party.” Ex parte Reynolds, 1 Caine, 500.
    “ Care will be taken by the court not to make a decree which will affect a person not a party to the suit.” Joy et al. v. Wirtz, 1 Wash. C. C. 417.
    The lis pendens, if any, did not commence until after the will of . Moon was proved and admitted to record in Ohio, and the amended bill filed, stating that fact.
    At the time the bill was first filed in the circuit court, the complainants had no right of action. 9 Wheat. 565; Wilson v. Tappan, 6 Ohio, 474; Bailey v. Bailey, 8 Ohio, 245; Lessees of Swayzes’ Heirs v. Blackman, 8 Ohio.
    A suit upon a note before it is due, would certainly create no lis pendens. If the party in fact knows of the existence of *the suit, he also knows that the plaintiff has no right to recover. A subsequent purchaser, with notice of a prior deed made to defraud creditors, is not bound by it; because, although he knows the fact that such deed exists, he also knows “ it could not hurt him,” being void. Gooch’s case, 5 Coke, 60; 14 Mass. 147; 9 East, 67; Sugden on Vendors, 137; 2 Thomas Co. Lit. 192, top paging.
    “If in a suit at law; the plaintiff has suffered nonsuit, or if, in chancery, the suit abated, the plaintiff must make the person who purchased during the former suit a party.” Newman v. Chapman, 2 Rand. (Va.) 103, 104. “If there was any intermission of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice.” Bacon’s Law Tracts (Oct. ed. 1787), 282; in note to 2 Ves. & Beam, 202.
    In Lessee of Smith v. Trabue’s Heirs, 1 McLean, 88, McLean, J., held, that persons who enter into the possession under tenants, on whom a notice has been served in ejectment, will be subject to be turned out of possession under the judgment. “But this rule is not without limitation.'1'' That the judgment fixes the right of entry, but without an actual entry the statute of limitations will continue to operate against the right. And after the lapse of eleven years, being four years more than the limitation fixed by the statute, a writ of possession was quashed, and a writ of restitution awarded, to give the tenant an opportunity of setting up a right under the statute.
    
      In Ledgerwood et al. v. Picket’s Heirs, 1 McLean, 143, a demise in an action of ejectment was amended, the term extended, and a writ of possession was taken out, under which the terre tenants were about to be turned out of possession without notice. On writ of error coram vobis, Judge McLean decided that “ it is very clear that such a power should not be exercised except on notice to all persons whose interest may be affected by the amendment.” He said that, “in this summary way, ‘the rights of no individual should be prejudiced without notice, and an ample opportunity given of showing cause why *the amendment should not be granted. Indeed, it is manifest, from the facts in this case, that great injustice will be done unless this writ of possession shall be set aside.” S. C., 7 Pet. 144.
    The cases in 1 McLean decide the proposition that the statute of limitation runs in favor of a pendente lite purchaser. It runs in favor of the defendant in ejectment himself. 1 McLean, 88. McLean, J.,says: “A mere entry while the tenantremains in possession, will not hurt him; he must be turned out of possession, or acknowledge the right of the lessor of the plaintiff, by consenting to hold under him. Nothing short of this will stop the statute.” See also 8 Ohio, 167, 168; Smith v. Hornback, 4 Lit. 233.
    The case of Baldwin v. Love, 2 J. J. Marsh. 489, is opposite to the present. There the purchaser had obtained the property in question, after the filing of the original bill. The complainants amended their.Ijfll, but the order of amendment was not noted in the order book as a statute of Kentucky required. The court held that, “ under these circumstances, if it was designed to impeach Morton’s (the purchaser’s) title to the slaves, he should have been made a party to the suit," and reversed the judgment of the circuit court.
    In Sale v. Crompton, 2 Stra. 194, “a warrant of attorney was given in 1732, to confess a judgment for Crompton, but the record of the judgment, had left out the r, and it was made Compton, and now the court refused to amend it by the warrant, for fear of inconveniences to the purchasers." Equity looks at the substance, and not at the form of things. The reversal of the case because, by the complainant’s own showing on the bill, they had no right to sue, was substantially as much as a nonsuit at law, or an abatement in chancery.
    If, in such case, the complainants had sued at law, they would have been nonsuited, or had judgment against them. The case was reversed by the Supreme Court of the United States, on the ground that before they proved the will in Ohio, the complainants had no right to sue or intermeddle with the ^effects of the testator in Ohio. Here, then, is a clear case of a party suing when he had no right at all to sue.
    In Bishop of Winchester v. Beaver, 3 Ves. Jr. 318, the court ordered a bill of foreclosure to stand over, that a judgment creditor, who had obtained his judgment after the filing of the bill, might be made a party in the case.
    See also Sherman v. Cox, 2 Ch. 46; Haines and others v. Beach and others, 3 Johns. Ch. 459; Daly v. Kelley, 4 Dow’s P. C. 435, where Lord Eldon held, that if land be aliened pending a suit about it, the alienee having the legal estate ought to bo brought before the court in order to convey; and if there are vexatious alienations pending the suit, the court will restrain them. See also Sugd. on Vend., 7 ed. 327, 328.
    In Preston v. Turbin, 1 Vernon, 285, it is said, “ Where a man is to be affected with a lis pendens, there ought to be a close and continued prosecution.” See also Watson v. Wilson, 2 Dana, 406; 2 Sugd. on Vend., 9 ed. 336.
    See also 2 B. Monroe, 470, where it is said the purchase must have been made during a diligent prosecution of the suit.
    If the Us pendens be collusive, it will not bind the purchaser. 2 Sudg. on Vend. 326.
    The complainants, when they filed their bill of revivor in the circuit court, ought to have made the present complainants parties to the suit. See 2 Randolph; 4 Dow, beforo referred to.
    The doctrine of Us pendens does not apply to this case, because the proceedings were in the circuit court.
    In Tarbell v. Griggs, 3 Paige’s Ch. 207, Chancellor Walworth decided, there is “ nothing in a court of the United States to place it upon any higher ground than the judgments of other courts of a sister state. And the fact that the court was setting within the limits of our own state, can not give the plaintiff any better claim than he would have had if *the judgment had been rendered in any other state or territory of the United States.”
    In 2 Story’s Eq., sec. 405, it is said : “ It is upon similar grounds that every man is presumed to be attentive to what passes in the courts of justice of the state or sovereignty where he resides; and, therefore, a purchase made of property actually in litigation, pendente,” etc.
    “The state tribunals are no part of the government of the United States.” Rawle on the Constitution, 200, quoted with approbation by Judge Story, in 3 Story on the Constitution, 448, note 2.
    A bill of exchange, drawn in one state of this Union, on a person in another state, is a foreign bill, 10 Ohio, 185; 10 Pet. 579; 12 Pet. 54; where it is decided that “the respective states are sovereign within their own limits,-and foreign to each other, regarding them as local governments.” 2 Pet. 586 ; 1 lb. 179.
    The complainants then ought to be no more affected by these proceedings than if they had taken place in the state courts of Maine, or Now Hampshire, or in the courts of the United States for Louisiana or Florida.
    The rule that a lis pendens is notice to the world, applies only where the suit is brought in the county where the land is situated. And, with that limitation, a purchaser, with reasonable diligence, can know whether the title he is purchasing is in litigation or not. Once compel a purchaser to go beyond the county in searching for suits, and there is no limit to the extent of his liability.
    The party who claims the benefit of a Us pendens, by which the other party has been deprived of the right of being heard in a court whose aid is sought to wrest from him his possession, must clearly show that such lis pendens exists. Although the defendant has the aid of able and diligent counsel, they have not produced a single case where, either by decision or dicta, the doctrine they now contend for has been held. And, to adopt the language of Judge Lane, in 5 Ohio, 193, “ it is *an argument of irresistible force that, in the whole range of authority within our reach, not one has been found ” to support the principle claimed by the defendant’s counsel.
    In the case in 6 Ohio, 463, the court thought it to be material that “no settled practice furnishes evidence that the profession have deemed it necessary ” that the decree should be recorded in the registry of deeds.
    A Us pendens is not notice to postpone a prior registered conveyance. This point was directly decided in Newman v. Chapman, 2 Rand. 93, where it was held that a Us pendens of an unregistered mortgage was not notice to postpone to it a recorded deed. See also Wyatt v. Barwell, 19 Ves. Jr. 539; 4 Kent’s Com. 171, 172. The will under which the defendant claims, has never, I believe, been recorded in Highland county; at least I do not remember any such fact in the case. The statute of Ohio (Chase, 572, sec. 12; 681, sec. 12). requires the copy of a foreign will to be recorded in the county where “such estate shall lie,” A purchaser for valuable consideration from an heir, without notice of a will, will be protected in equity. Rowe v. Tweed, 15 Ves. Jr. 372.
    In Mead v. Lord. Orrery, 3 Atk. 243, Lord Hardwick held that “ a lis pendens is only a general notice to all the world, but can not affect any particular person with a fraud unless there was a special notice of the title in dispute to that person.”
    In 2 Fonb. Eq. 153, it is said : “In general, a decree is not constructive notice to persons not parties to it; but if a person not a party have express notice of such a decreee, he shall be bound by it;” referring to Harvey v. Montague, 1 Vern. 67; Watlington v. Howley, 1 Des. Ch. 170.
    . The statute of limitations protects the complainants. They had the actual, adverse, notorious, and exclusive possession of the land upward of, twenty-one years before the commencement of these suits in Highland county. The rendering of a judgment in ejectment, without dispossessing the tenant, does not deprive him of the benefit of the statute of limitations. See 1 McLean, 2 Litt., and 8 Ohio, before referred to.
    *The demand is a stale one. “Equity will not aid a stale demand, where the party has slept upon his rights, and acquiesced for a great length of time.” Bowman’s Devisees et al. v. Wathen et al., 2 McLean, 396, and the cases there collected. S. C., on appeal, in 1 Howard, 189. In that case the Supreme Court decided that a court of equity will not give relief “against conscience or public convenience,” or to a party “ who has slept upon his rights — that the complainants had slept long upon their rights, and by their want of reasonable diligence, others have been induced to contract in an undertaking against which these complainants had power to warn them with respect to these parties; therefore, this court must remain passive, and can do nothing. They s.aid that the complainant, by his negligence, or by failure to look after and protect his own interest, had permitted the title of another to grow into full maturity, and that he has, by lapse of time, created as complete a title in equity as would be imparted by an express conveyance.”
    See also 1 Johns. Ch. 314 ; 5 Johns. Ch. 188 ; 6 Johns. Ch. 160; 1 Sch. & Lef. 52; 3 Ohio, 506, 333; 2 Ohio, 580; 4 Ohio, 384; 11 Ohio, 445; 1 Ohio, 14, 124; 9 Ohio, 178; 8 Ohio, 62; 10 Ohio, 24, 524, 288.
    As the proceedings in the circuit court do not prevent the running of the statute of limitations, they, upon the same principle, do not prevent the alleged equity of the defendant from becoming stale.
    The complainant, before he can deprive the defendants of their legal title, must show to the court that he has more equity than' the holders of the legal title. Brashear v. West, 7 Pet. 608. And where both parties claim by an equitable title, the one who is prior in time'is deemed the better right; and where the equities ' are equal, the law must prevail. Boone v. Chiles, 10 Pet. 177; Phillips et al. v. Crammond, 2 Wash. Ch. C. 441; Fitzsimmons v. Ogden et al., 7 Cranch, 2.
    The difference of twenty years in Ohio is as great, probably, *as half a century in England, in the price of real estate. Time here, in these matters, is of far greater importance than there; and hence, delays indulged in by the English courts afford no warrant in principle for similar delays in Ohio. Sixty years there, is the ultimate limitation for real actions ; twenty-one years in Ohio. And this difference affords a fair rule for adjusting the differences in time between the two countries, in cases of chancery. And the difference in Ohio was far greater from 1812 to 1836, than it now is.
    The case of Jackson v. Williams, 10 Ohio, 69, is like the present. There a bill in chancery was filed, and a decree obtained for the legal title to the lot in dispute; but, as the legal title inured to the grantee.of their ancestor by his deed, with covenant of warranty, the court held that the complainants in chancery acquired nothing by their decree. In these cases, Kerr had parted with all his eqnity to these lands by his contracts, before the suit was commenced, and the legal title passed directly by the patents to the complainants, or those under whom they claim.
    Kerr’s heirs had no interest, legal or equitable, in the land; - and therefore there was nothing for the decree to operate upon.
    
      James H. Thompson, for defendant in review :
    Had a decree in the circuit court of the United States the same operative effect that a decree in our state courts has, in passing title, there would have been no necessity for filing the supplemental bill and bill of revivor, or the present bills, because the titles would have passed from Kerr or Kerr’s assignees toMoon’s devisees, by the original decree, and that would have ended all further litigation; but such is not the effect of such decree. 7 Ohio, 272, pt. 1. There was no other mode of carrying that decree into execution than the one adopted.
    . *Had Trimble, as assignee of some of Moon’s devisees, the right.to file the supplemental biil, in the nature of a bill of revivor, to carry the original decree into execution? Surely, on this point there can be no doubt; and if there were, this court would hardly be expected, collaterally, to reverse a decree of a court of competent jurisdiction, in executing its own decrees, made in a case of which it had undoubted cognizance. But there is no doubt. Story’s Eq. PI. 281, 343, and authorities there referred to. What, then, is the effect of the proceedings on this supplemental bill, in the nature of a bill of revivor? Do they continue the suit and relate back to the commencement of the original suit, form part of it, and reinstate it in all its bearings; or in law, was the original suit ever out of court? It is insisted, on principle and authority, that the original suit was never abated, and that the last proceedings are incorporated into and constitute a part of it. At law, when one of the parties dies the suit abates; but in equity, the rule is entirely different, and a bill of revivor puts all the parties in the same condition, when filed, as they were in at the happening of the death, and it carries with it the full effect of all the original proceedings. Story’s Eq. PI. 289. In 12-Pet. 171, this point is directly decided; and could there be any doubt of it on general principles, as the court say, in that case the act of Congress regulating the practice of the United States court has proscribed the rule for them; and, having construed it, the point must be considered as sottled. In 11 Ves. 194, 200, the same point is decided. If, then, it be true that all the influences of the original decree are imparted to the subsequent proceedings, which, in point of fact, only ordered such decree to be executed according to the new relations of the parties, and did not change the equities of those litigating in the least parfcieular, what effect has such original and amended proceedings on the titles of the .defendants? By the original decree, the equity was found with the complainants, and Kerr was ordered to convey, so as to pass to complainants all the title to all the *lands located under the four warrants, and the three tracts in controversy among others, so as'the same should be assured and warranted to them or their assigns' against himself and all persons claiming under him. Now, did this decree and the one under the last proceedings, which adopted it as part of it, and placed Trimble' in the exact position of Moon’s devisees, destroy, utterly vacate the titles of these complainants ; or are they, in the language of the law, “pendente lite ” purchasers, and have acquired nothing by their intermeddling with these titles while in controversy ? The rule of law is, and has been for three centuries, that' he who purchases a title in litigation takes nothing by his purchase, and the parties litigating are not bound to notice him in any way. His title is absolutely void, and passes no right which is not subject to the decree in the suit. Authorities are without number, but one directly in point of this court (deciding that the title of a 11 pendente lite ” purchase is void, not voidable) is sufficient. Bennet’s Lessee v. Miah Williams, 5 Ohio, 461.
    In 1 Story’s Eq. 383-386, and 2 lb. 501-503, the rule is clearly defined, and there can be no evading the assertion that a constructive trust must be forced on these parties. Constructive notice in equity can not be evaded, any more than it can be at law, nor can-proof be adduced to destroy it. The most usual illustration is that of a deed registered or recorded, where the law holds the subsequent purchaser bound by it, whether he has ever seen or heard of it; and in these cases, the conclusion in equity is equally fatal for these complainants. They are bound to know and notice all the assignments under which they claim their title, from the patent down to the warrant; and they must abide the exact part of the title, and no more than has been handed down by each transfer. They claim as the assignees of Joseph Kerr, who was the assignee, through R. Price, of J. P. Moon, and G. C. Friend, and Martha, his wife, formerly Martha Moon, who obtained the warrants, and assigned them as aforesaid,-a's the only heirs at law of said A..Moon, deceased. How is this ? *The record éstablishes that said Josiah P. Moon and Martha Moon, the wife of said George C. Friend, were children of the said A. Moon, deceased, by a former marriage, and in the will of said A. Moon were entirely cut off from any part or parcel in these warrants : and it further decrees that they had no right at all to said warrants or surveys made under them ; that their assignment of the same was void; that Price’s to Kerr was void; and, of course, it follows that Kerr'had nothing to áSsign, and that his assignment is void. Thus, the whole foundation of the complainants’ titles fall; and inasmuch as through these void assignments they have acquired the legal title to land covered by our warrants, and entries, and surveys, made in the name of Kerr, who is decreed to' be a trustee holding for us, the law charges them with individual notice, and applies to them the rule that whero a party purchases trust property, knowing it to be such, in violation of the objects of the trust, a court of equity forces the trust upon the conscience of the guilty party, and compels him to perform it, and to hold the pi’operty subject to it, in the same manner as the trustee himself held it. All this doctrine, in the fullest extent, has been sustained by this court. Reeder et al. v. Barr et al., Ohio, 446; Mattoon v. Clapp’s Heirs et al., 8 Ohio, 248; Miami Exporting Company v. Halley’s Heirs et al., 7 Ohio, 11, pt. 1; Bonner v. Ware, Wilcox’s Ohio, 468, and authorities there cited. In the last case, the court dismissed Bonner’s bill, filed against Ware et al., for quieting h'is title, on the ground that he was affected and bound by all the recitations in the patent, and must abide the regularity or irregularity of all the assignments, from the warrant down to the patent, and from that to him, although there had been three assignments before the patent issued, and several conveyances after, before the title came to Bonner, and the court go back and find the defect in the very first assignment of the warrant, as we insist they shall do in these cases.
    It has been, and doubtless will be, earnestly urged by the complainants, that as- the original suit seems to have been dormant *for a while before the bill of revivor was filled, the defendants were not pendente lite purchasers — because, say counsel, the rule is that the suit must be in full life and prosecution before one can be affected by the doctrine of lis pendens. The courts have decided this point in both ways, in the cases in Yesey referred to. There the purchase was made during the abatement of the suit. And there are other authorities to the same point.
    But grant the rule to be, as complainants’ counsel will contend it is, how are they to be helped by it? Here is the main defense, and I desire the attention of the court to its entire want of application, even conceding the rule of law to be that the suit must be in full life and vigor. All their authorities heretofore referred to (11 Wend. 456; 4 Cow. 676; 2 Dana, 412; 3 Ohio, 543), all go to establish that, in different states, of cases where a suit is dormant, and a purchase is made during such abatement, the purchaser is not to be considered as a lis pendens purchaser; all of which, for the present argument, is conceded, though the ease from Peters referred to, and the other authorities, are against it. Yet how is the concession to help the defendants ? Is not its whole effect met, and entirely destroyed by one single question, the answer to which is altogether against them, viz: Did any one of these complainants, or those under whom they claim, purchase, acquire, or perfect their title, during the time that the original suit was in abeyance — from 1827 to 1839? Not one of them. Fix the purchase when they may, at the .time the patents were issued, or when the entries and surveys were made, or even before they, were made, before the suit, still the doctrine of Us pendens sweeps away all their title. I
    In Lessee of Bond v. Swearingen, etc., 1 Ohio, 402, 403; and in Lessee of Allen v. Parish, 3 Ohio, 121, it is ruled to be law, that where the ancestor sells land under an entry and survey, by general warranty deed, and the patent afterward issues to his heirs, that the title inures to the purchaser; and, in all the authorities, we find the rule to be that, if one *sells land with an imperfect title, by warranty deed, and afterward acquires the legal estate, it inures to the purchaser, by reason that he is estopped by his warranty from asserting title in himself.
    I place these rules before the court for the purpose of inquiring how these complainants can connect themselves, legally, with the entries and surveys under which they claim.
    Lastly, the complainants claim to be protected by time and adverse possession.
    Will a court of equity extend the protection of the statute (even where it would not run at law, as in these cases) in furtherance of a fraud? 2 Story, 739; 10 Pet. 227, 247; 2 Johns. 230, 10 Ib. 475 ; 12 lb. 365 ; 16 Ib. 293; 18 lb. 355.
    Adverse possession can not, however, even at law, run in any case until the patents have issuod; and if the court would act in analogy to such statute in these cases, although it is manifest from the record that Moon’s heirs are non-residents, and although it is confidently conceived that time has no bearing on the circumstances of the cause; yet all this aside, it will bo found that twenty-one years have not elapsed since the date of the patents, before the commencement of these suits. 7 Ohio, 251, pt. 1; 5 Ohio. 289.
   Read, J.

The proposition of fact stands thus: Kerr, being the legal owner of said four military land warrants, made sale of the land in dispute, received the purchase money, and the purchasers went into possession. The equitable title to these land warrants was in Moon’s devisees. The complainants were the purchasers from Kerr, without notice of the equitable interest. Being thus in possession, under such purchase, Moon’s devisees commenced suit against Kerr in the circuit court of the United States, to compel an assignment of said warrants, and all entries, locations, surveys, and interests in land acquired under them. Before suit was commenced, Kerr *was the legal holder of these warrants, the complainants purchasers of the land in dispute, in possession, and bad paid the consideration money under contract of sale, binding Kerr to perfect to them the legal title. Moon’s devisees were the owners in equity of said land warrants ; but the legal title to the lands in dispute was in the United States. The complainants, then, had an interest in these lands before suit was brought, and should have been parties to the suit, which was instituted to deprive both Kerr and them of all right to said warrants, and all interest in the lands now in question.

The equities of the complainants then, and of Moon’s devisees, and of Trimble, who claims under them, are equal. But Trimble’s equity is the elder, and therefore better, and must prevail unless the junior equity has protected itself by clothing itself with the legal title. This' the junior equity has done, by patents to the complainants from the United States for the lands in dispute. But this.was done after suit commenced in the circuit court; and hence it is contended that the doctrine of lis pendens will deprive it of that advantage. An innocent purchaser, without notice of an outstanding equity, holding the legal title, will prevail'. But, pending suit to compel the legal title, if a person buy of the trustee, and take the legal title, although having no actual notice of the outstanding equity, the law charges him with such notice, and forbids him from taking any benefit from such purchase, from a principle of necessity, that the right to the very matter in dispute cg,n not be changed between the commencement and termination of the suit. If this were permitted, the trustee could always defeat the cestui que trust, by divesting himself, when sued, of the legal title. But this doctrine does not apply to persons who had an interest in the subject matter before suit commenced, and who should have been made parties. If such persons are not made parties, they may proceed, having an equity before suit, to clothe themselves with the legal title; because, having an interest before suit commenced, and being necessary parties, and not having been made such, neither equity nor the ^doctrine of Us pendens forbids them to protect themselves by acquiring the legal title. If it did, they would be affected by a suit to which they should have been parties, but were not without a day in court, to present their interest and claim their right. Hence, in such case, persons who should have been made parties, may proceed precisely as' though no such suit existed.

In this case the legal title to the lands in dispute was in the United States, and the complainants, by contract of purchase, had acquired an interest in these lands, as far as Kerr was concerned; and, having taken possession, paid the purchase money, and made improvements, Kerr was bound to secure to them the legal title. The lands being unlocated at the time, the contract required Kerr to take all necessary steps, by location, entry, and survey, to procure the title from the United States. This was the understanding of the parties, Kerr then being in possession of these warrants, and having the power to fulfill his contract; hence they acquired not only an equitable interest in the land, but the equitable right to have that land secured by the warrants in Kerr’s possession. In some of the cases now under consideration, tbe title under the contract was completed as far as entry, location, and survey, before said suit in the circuit court; but in others, entry, location, and survey were had after suit, and all the patents were procured after said suit. Thus, it will be perceived that no mere equitable interest was acquired from Kerr after suit was commenced. Hence complainants were not intruders after suit commenced, and they had, therefore, the perfect right to proceed and protect themselves by obtaining the legal title by procuring patents, and equity will not deprive them of that advantage. It is quite certain that this reasoning is conclusive as to those instances whore the location, entry, and survey were had before suit brought in the circuit court. But counsel contend that in those instances where entry, location, and survey were had after said suit, there is a difference, and that those instances must come within the doctrine of lis pendens; *that the legal title to the warrants was in Kerr, and the. land he contracted to sell, unappropriated and disconnected with said warrants, until after suit. There appears to be some difficulty in this view, but if there is, it operates both ways; because, if these lands were in no sense connected with the warrants before suit brought, the decree for the transfer of the legal title in the warrants could not affect the land; and if it was sought to claim the lands upon the ground that the warrants bad been attached to it after suit, by entry, location, survey, and patent, those facts should have been brought before the court by supplemental bill, and the persons in possession of those lands, prior to such supplemental bill, should have been made parties, but no such thing was done. Hence, in that view,-the decree of the United States court would not deprive them of their land. But these warrants, so far as these purchasers are concerned, can not be viewed as disconnected with these lands ; or rather, these purchasers can not be regarded as having no interest in the warrants. They contracted with Kerr for land: Kerr possessed that which was equivalent to land, and could secure land. The contract was made with Kerr, unquestionably, in reference to these warrants. The possession of land was delivered by Kerr to the purchasers, which was unlocated, and which he had the power to appropriate and receive. He contracted to take the necessary steps to secure these lands. The whole right to them, therefore, and the right to have them appropriated, by the warrants, resulted from the contract. This contract, and purchase of the land, was made before suit in the circuit court. No new contract was made with Kerr, and no new interest was required from him after suitKerr, after the suit, simply proceeded to perfect the equity which existed against him before suit. The contract coupled the warrant with the land, and money having been paid under it, and possession of the land taken, the equitable interest in the warrants was equal to the equity of Moon’s devisees; and, it must be conceded, that if Kerr alone was concerned, there would be no doubt as between him and the purchasers; and Whence, if the land is to be claimed by and through Kerr’s acts, Kerr had the power to contract that these acts should go to the benefit,of the purchasers; and hence Moon’s devisees, claiming from Kerr in this manner, should have made these purchasers parties; but it may be said that there might be a secret understanding, or bargain, between Kerr and the contract purchasers, and it could not be discovered who should be parties; but such is not the casé; these parties were in possession of these lands ; this was sufficient notice, to all the world, of their rights, if these rights were, in any manner, to be affected by the suit. We can not, therefore, regard the lands and warrants as disconnected, but hold that the contract of sale conferred an equitable right in these lands, as against Kerr, to compel the legal title; and this existing before suit, the legal title acquired afterward will not be disputed.

But there is another ground which should have prevented a decree in favor of Trimble, the respondent to this bill.

These complainants were in possession of these lands as early as 1806 and 1808, and have been in possession ever since, paid the purchase money, and made valuable improvements. They have been suffered to remain quietly in possession for some thirty or thirty-four years, before suit is brought against them, to deprive them of their lands. Stale equities will not be enforced; when a party, having an equity, neglects to enforce it, for a period which would constitute a bar at law, under the statute of limitations— in analogy to the statute — it will also be barred in equity.

Decree reversed and cause remanded for hearing.  