
    Morrison v. Campbell and Others.
    January, 1824.
    Chancery Practice — Prooí of Will — Sufficiency as against Absent Defendants. — Strictlegal proof is not required against absent defendants, in Chancery; and therefore, a will may be proved, in such case, by evidence inlerior to that which would be required, where a defendant appears, and defends the suit. , ^ . . . . . ,
    , ^ . . . . . , Real Estate — inchoate Right to Land. — An inchoate right tc land, held by entry and survey only. Is real estate, and will descend to tlie heirs, and not the executors.
    Assignment— Warrants — Entries. — Warrants and surveys of land may be assigned, but not entries. Forged Assignment — Regular Assignment — Priorities. —A man deriving title under a forged assignment of an entry, and who afterwards obtains a legal title from the Commonwealth, ought not to be preferred to one who holds a regular assignment of a survey of the same land.
    Pretensed Titles. — The doctrine of pretensed titles examined.
    David Duncan, in his life-time, was entitled to 21,000 acres of land, in Green-brier county, by entries and surveys, *made for him by the surveyor of the said county, in the year 1787. Duncan died in 1791, leaving Wallace and Kirkpatrick, his executors, and authoris-ing them, by his will, to sell and dispose of all his estate, real and personal. James Morrison, the appellant, in the year 1806, purchased the said surveys of the said Wallace and Kirkpatrick, executors as aforesaid. In the year 1796, the entries of the said land were assigned to a certain James Welch, by a paper purporting to be executed by David Duncan, and expressing a consideration of $5,000 for the said assignment. Welch conveyed the said lands, by deed ot trust, in 1797, to Hicks and Campbell, to secure a debt of $3,933^. The deed recites, “that the said surveys were assigned to the said James Welch by (he said David Duncan, and are returned into the office of the Register; copies whereof are delivered to the said Hicks and Campbell.” The money not being paid when it became due, the lands were sold, and Hicks and Campbell, and James Cur-rie became the purchasers. William Cur-rie was afterwards admitted by Hicks and Campbell to a share in the said lands; and a patent was then issued to Hicks and Campbell. James Currie, and William Cur-rie.
    James Morrison then filed his bill in the Richmond Chancery Court, alledging, that he had become the lawful proprietor of the said surveys, by purchase from Wallace and Kirkpatrick, executors of Duncan, as aforesaid: that, the assignment of the entries to James Welch was forged, and not the assignment of David Duncan, the proprietor of the said surveys: that, the consideration of $5,000 was merely nominal: that, he has done nothing to impair his rights, which are superior, in law and equity, to rights derived from the fraudulent assignment aforesaid; he, therefore, prays, that Robert Campbell, Robert Gordon, and Janetta, his wife, and James Cur-rie; which said James and Janetta'are the heirs at law of James Currie deceased; Robert Hicks, Nathan S. Dalland, _ and Sally, his wife, and John Hicks; which said Robert, Sally, and John, are the heirs of John Hicks, deceased; George Wallace and A. Kirkpatrick, citizens and inhabitants of the State of Pennsylvania, and executors of David Duncan, deceased, Charles Blagrove, Register of the Hand Office, and James Welch, may be made defendants; that Robert Campbell and the representatives of James Currie and John Hicks may declare whether they claim the land in question under an assignment of the , surveys made by James Welch; th'at they may set forth what were the terms of the assignment from Welch to Hicks, Campbell and Cur-rie, and what consideration passed for said assignment; that Wallace and Kirkpatrick may say whether they have not, under the authority conferred on them by the will of David Duncan, deceased, sold and assigned over to the complainant, all the right and title of the said Duncan, in and to the said surveys of the aforesaid 21,000 acres ol land; that the said James Welch may set forth, particularly, of whom he obtained an assignment of the said surveys, the consideration for which they were assigned, who were present, &c.; that the said Welch disclose all the circumstances of the said assignments; that the said Bjagrove, Register of the' Land Office, do exhibit copies of the surveys and grants, and the assignments on the former; that the said patents be vacated by a decree of the Court; that new grants be directed to be issued to the complainant, or if that should not be regular, that Campbell, the representatives of James Currie and John Hicks, be decreed to release and assign over all right and title they may claim in said lands, to the complainant.
    The answer of Robert Campbell alledges the deed of trust executed by Welch, to secure a debt due to Hicks and Campbell, and conveying the land in question; that the original surveys and assignments were regularly made, as far as the defendant knows or believes, and are now in the Register’s office; that the debt of the said Welch not being paid, the land was sold from time to _ time, when the defendant, John Hicks and James Currie be-j; came the purchasers; that the defendant and his late partner, John Hicks, permitted William Currie to be interested with them to the amount of one-third of their two-third parts of the said land; that no patents having issued, at the time of the said deed of trust, the said Welch _ assigned the said surveys to the said Hicks and the defendant, and they directed patents to issue to Hicks, Campbell, 'William Currie and James Currie, in their proper proportions; and the patents were isued accordingly, on the 20th day of November, 1797; that the said patentees and their heirs are innocent purchasers for a valuable consideration' actually paid, without notice of any adverse claim, until after they had obtained the legal title; that he does not admit that the assignment to Welch was fraudulent, but he insists that it was the genuine assignment of David Duncan; that the complainant, having purchased when the patentees were in possession of the land, and had obtained the legal title as fair purchasers, he was a purchaser of a pretensed title, which is prohibited by law, &c.
    Robert Gordon and Janetta, his wife, and James Currie, answered, that it is true that the said Janetta and James are the heirs of James Currie, deceased, and children and legal representatives of William Cur-rie, deceased; that as to the other allegations of the bill, they know nothing, of their own knowledge, and call for proof thereof; and that they are satisfied that both James and William Currie, deceased, were innocent purchasers for valuable consideration actually paid, &c.
    The suit abated as to Wallace, by his death; and publication was made against the children* and heirs of David Duncan, deceased, Kirkpatrick, Welch, Dalland and wife, as absent defendants.
    A. Kirkpatrick, surviving executor of Duncan, filed his answer, stating, that he admits that he and G. Wallace, since deceased, in pursuance of the will of D. Duncan, sold to James Morrison, in the year 1816, the surveys of land in the bill mentioned, and all the said Duncan’s rights therein, for a valuable consideration, and delivered to the said Morrison certain original papers, connected with the title of the said Duncan; that neither David Duncan, in his life-time, nor his executors, since his death, have ever _ transferred the said Duncan’s right in said lands, to any other person than the complainant, James Morrison; that the defendant and his co-executor, Wallace, were both ignorant of the steps taken by Hicks and Campbell, or any other of the defendants, in obtaining patents in these cases, their residence being in Pittsburg, in Pennsylvania; and he hopes that neither the representatives of D. Duncan, nor the complainant, may be injured by the measures resorted to by Campbell and others; that he believes the assignment to Welch was fraudulent; and he is willing that the land in question should be decreed to the complainant.
    Dalland and wife filed their answer, disclaiming any knowledge of the transaction. John Hicks, by his guardian, did the same.
    Among the exhibits is a paper purporting to be the will of David Duncan, which empowers his executors to sell and dispose of all his real and personal estate. He appointed four executors, two of whom were Wallace and Kirkpatrick above-mentioned. This will was never recorded in Virginia; but, there is a certificate of Samuel Jones, who styles himself Register, that the instrument exhibited is a true copy of the original, recorded in the office for recording of wills in Alleghany county, Pennsylvania.
    
      David Steel deposed, that David Duncan was a tavern-keeper in Pittsburg, at the time of his death, and for a number of years before; and that some time after his death, the deponent was informed that a certain James Welch had fraudulently obtained a conveyance for the lands in question, from a certain David Duncan, who sometimes ^traded up and down the Ohio; and this David Duncan was a different man from the David Duncan of Pittsburg aforesaid; that this person told the deponent that he had no entries or surveys in Greenbrier county; that Welch was a trading and speculating man, of bad reputation, &c.
    Another witness proved, that there was a man named David Duncan, who was a different person from the one who lived in Pittsburg.
    '1'liere was other evidence, which is fully stated in Judge Green’s opinion.
    The Chancellor dismissed the bill, and an appeal was allowed by the Court of Appeals.
    Call, Nicholas and Stanard, for the appellant.
    Hay and Wickham, for the appellee.
    It was contended for the appellant, that the patent was void, and not merely voidable, and therefore raises no bar to the claim of the appellant: 1. It is void, because the law requires the patent to issue to the local er or his assignee. I Rev. Code, (Pleasants’s edit.) p. 344, § 3. The assignment was not in due form, because entries are not assignable by law. The act speaks of surveys only. Ibid. p. 147, § 40. The act also requires a recital of the assignment in the grant. Ibid. 148, § 44. Therefore, the recital was false as to part of the assignment, which annuls the patent. 8 Co. Rep. Berwick’s Case; 2 Roll. Rep. 274, 359. The assignment was forged, and crime cannot be the foundation of right. Wilson v. Spencer, 1 Ran. Rep. 76; Cutting v. Carter, 5 Munf. Rep.
    2. A scire facias was not necessary to vacate the patent, because it was not merely voidable, but void. 22 Vin. 13, pi. 18; 3 Leon. 218; Carth. 436. Whatever is void at common law, may be either pleaded or given in evidence under the general issue. 2 Wils. 350; Gilb. *Evid. 145; Bull. Ni. Pri. 173, note; 3 Campbell, 272; 1 Roll.. 188; 5 Com. Dig. 643; Wentw. 432.
    3. A Court of Equity has jurisdiction to annul it on account of fraud. It will not support a plea, because that requires a valid muniment, and these patents are void. The circumstances of the case led to en-quiry, which is considered equivalent to actual notice.
    4. A tortious acquisition of the legal estate does not afford any protection. Lag’s Case, 1 Vern. 52, may be objected to this proposition; but that case seems to be imperfectly reported. There was neither force nor fraud in that case. The constant practice disproves the doctrine supposed to be contained in that case. For, a third mortgagee, with notice of the second, cannot protect himself by purchasing the first.
    On the part of the appellees, it was said, that the appellees have acquired the legal estate honestly and fairly, without notice of the claims of the appellant; and that a Court of Equity will not take it from them, even if the patents are at law voidable, and although there be full proof of the fraudulent assignment alledged in the bill.
    1. The patents are not void, but only voidable at most; and if so, the legal estate passes. They are regular upon their face. The law is complied with, and_ cannot be impeached either for fraud or irregularity. They can only be set aside in a proceeding for that very purpose. With-erington v. M’Donald, 1 Hen. & Munf. 303; Norvell v. Camm, 6 Munf. 233. The case of Hamilton v. Wells, was never authority, and if it was, it has been over-ruled by subsequent decisions. This principle has been sanctioned by all the Courts, State and Federal. In the Supreme Court o-f the United States, the case of Polk’s lessee v. -1 9 Cranch, 87, supports the doctrine. In New York, the cases of Jackson v. Ingraham, 4 John. Rep. 163, and The same v. Lawton, 10 John. Rep. 23, are to the same effect. In Kentucky, Bledso v. Wells, 4 Bibb, 330; in North Carolina, Rutherfoord v. Nelson, *Hayw. 106; Sears v. Parker, Ibid. 105; Dickey, v. Hoodenpile, Ibid. 359.
    A patent is a record, and imports verity. No averment inconsistent with it, canbe received. Even a deed cannot be impeached at law for fraud in the steps leading to its execution. Taylor v. King, 6 Munf. 358; Hynd’s Case, 4 Co. Rep. 71; 5 Com. Dig. tit. Patent, E. 1. All the cases cited on the other side, are founded on ancient statutes, and the King’s personal prerogative. They are all cases in which the patent is void, on account of deception practised upon the King, and to his injury. 5 Bac. Abr. tit. Prerogative, 602; 3 Reeves’s History of Common Law, 225. There is no pretense for saying that the Commonwealth has been injured. She has received her dues, and is not interested in the controversy.
    It is said, that crime cannot be the foundation of right. This, however, is disproved by the cases of Peacock v. Rhodes, Douglas, 614; Ashby v. Blackwell, Ambler, 506.
    2. The appellees acquired the legal title honestly and fairly, and without notice. There is no pretense of any actual participation in the supposed fraud. The appellant has neither law nor eqtiily on his side. Not law; because, he is obliged to go into Chancery, and he cannot bring trover for his surveys. Not equity; because the demand is a stale one.
    The act against buying pretensed titles is a good defence in this case; and Clay v. White, 1 Munf. 162, proves, that the ap-pellees had possession in this case. Morrison purchased after the patents.
    3. There is no proof of forgery, and the Court will not presume it.
    In reply, it was said, that it was clearly proved, that the assignment to Welch was a forgery. The case is the same, as if the heirs of the real David Duncan were the complainants in equity. In this event, it could not be said, that the case would be that of two rival equities. A junior equity with the legal estate, can only succeed over a *senior equity, where the source of the equity is pure. An equity which is founded on a forgery, is of no weight; and the subsequent accession of the legal estate, cannot give it any validity.
    ThatNno title can proceed from a crime, is an undoubted principle of law. The case of Peacock v. Rhodes, which has been cited on the other side, is no authority for the position it was intended to prove, but was decided entirely on the nature of commercial instruments. In that case, it was not necessary for the party to trace his title to' the wrong-doer. The case of Ashby v. Blackwell, Amblpr, 506, is an authority in favor of the appellant, because; it was conceded, that the man whose name was forged, had his remedy against the bank. If A. endorses a note, when he is not the A. who has title to the note, his endorsement does not confer a title. Meade v. Young, 4 T. R. 28; Chitt. on Bills, 112. The rule is, that every man is bound to know the person with whom he deals. If it is difficult for an assignee to detect a forgery, on the other hand, it is impossible for the real owner to guard against it.
    The appellees contend, that Hicks and Campbell were purchasers, without notice. But, of what were they purchasers without notice? Not of David Duncan’s title, because, they pretend that they have that title. They must mean that they had no notice of the forgery. But, this is not the meaning of the equitable rule. For example; a third mortgagee has a forged mortgage, without notice, and obtains possession of the legal title. This surely will not protect him.
    The patent is void, and, therefore, they have not a good legal title. But, even if it be merely voidable, it is not such a title, as, within the rule in equity, will protect the purchaser.
    Tt is said, that the appellant purchased a pretensed title. But, the act of Assembly makes surveys assignable, which justifies the assignment, and acquits it of the imputation *of being a pretensed title. This was merely an executory agreement, and therefore, does not come within the law. Sugd. (new edit.) 348; 1 Swanson, 56.
    As to the right of the executors to sell, it _ is not put in issue, in this cause. The will might, be expunged from the cause, without injury to the complainant’s case. It is too late to take exception to exhibits in this Court, when they were read in the Court of Chancery, without objection.
    January 31.
    
      
      Rea! Estate-Inchoate Right to Land. — An inchoate right to land held by entry and survey only, is real estate and will descend to the heirs and not to the executors. As so holding-, the principal case is cited in Forqueran v. Donnelly, 7 W. Va. 133.
    
    
      
      Assignments. — See generally, monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
    
      
      These persons were made parties hy an amended hill. — Note in Original Edition.
    
   The Judges delivered their opinions.

JUDGE GREEN..

The first enquiry in this case is, whether the appellant has shewn himself to be entitled to the rights of David Duncan, of Pittsburg, in the subject in question, so as to be entitled to assert them against the appellees, who claim under Welch. He asserts, that David Duncan made his will, whereby he directed all his property, real and personal, to be sold by his executors: that, he purchased the land in question of George Wallace and Abraham Kirkpatrick, two of his executors: that, Samuel, David, Hannah, Mary, and Margaret Duncan, are the heirs of David Duncan; and it appears, from the paper exhibited as a copy of the will, that they are also his sole devisees, of the proceeds of the sale of the land in question. Due .publication has been made as to those heirs and devisees, and George Wallace is dead, and the suit has abated as to him. Kirkpatrick answered, and admitted all the allegations of the bill. Some of the defendants claiming under Welch, do not deny these allegations. Others, saying they know nothing about them, call for proof; and others are infants, answering by guardian, and neither admitting nor denying those allegations. The appellant, in proof of those allegations, exhibits a paper, purporting to be a copy *of the will of David Duncan, recorded in Alleghany county, in Pennsylvania, certified by the Register of that county. But, from this, it does not appear, upon what proof the will was admitted to record. He also exhibits a contract between the said Duncan and David Steel, who conveyed the lands in question for David Duncan, and various other documents in relation to the said lands, which he alledges, were delivered to him by the executors of D. Duncan, and which Kirkpatrick also alledges. These papers could have been had no where, but from the representatives of David Duncan; also a paper purporting to be a copy of the proceedings and judgment in the name of David Steel against Margaret Duncan, executrix, and Abraham Kirkpatrick and George Wallace, executors of D. Duncan, deceased. This paper is certified by the Prothonotary of Alleghany county, in Pennsylvania, under his seal of office; but, it is not otherwise authenticated, so as to be strictly legal proof. Is this proof sufficient to establish the facts alledged by the appellant, upon which he founds his title as against the representatives of David Duncan? And, if so, is it sufficient also against the other appellees, claiming under Welch?

The act authorising proceedings in Chan-eery against absent defendants, prescribes, that after due publication: “If such absent defendants shall not appear and give such security, within the time limited, or such further time as the Court shall allow, upon good cause shewn, the Court may proceed to take such proof as the complainant shall offer; and, if they shall thereupon be satisfied of the justice of the demand, they may order the bill to be taken for confessed, and make such order and decree therein, as shall appear to be just, &c.” This act passed as to absent debtors, originally in 1777, and was extended to other absent defendants in 1787; and it was not until 1792, that any mode was prescribed for giving notice to an absent defendant, whose residence was not known. From this, it appears, that “such proof as the complainant shall offer,” ^spoken of in the act of 1777, was not confined to strict legal proof; for if it was, then, in consequence of the absence of the defendant, and his place of residence not being known, it would, in many cases, be impossible for the plaintiff to produce any such legal proof. His evidence might consist of the testimony of witnesses exclusively, and their testimony could not be strict legal proof, unless taken upon notice to the other party. The act of 1793, therefore, related, not to proceedings against originally absent defendants, proceeded against by publication under the acts of 1777 and 1787; but, to absent defendants, properly before the Court, upon process duly served, or by answer. Such proof as the act of 1777 alludes to, was not taken as the foundation of tlxedecree; but,only to satisfy the Court, that, under all the circumstances of the case, the demand was just, and might be other than strict legal proof; and, being so satisfied, the Court was author-ised then, and then only, “to ordei the bill to be taken for confessed,” which was not the necessary consequence of the non-appearance of the defendant; and, thereupon, the decree was founded, not on the proof, but upon the admission of the bill in omnibus.

The inchoate right, which David Duncan had, at the time of his death, to the lauds in question, was real, and not personal estate; and, if he had died intestate, would have descended to his heirs at law, and would not have passed to his personal representative. This interest could only have been devised by a will executed in the maimer prescribed by the laws of Virginia for a will of lands; and, although it be not necessary, to .prove a will in a Court of Probate in Virginia, for the purpose of giving it effect as a will of lands, yet, it is necessary, then th'e fact is in issue, that he who claims under it should shew by proof in the cause, in which the claim is asserted, lhat it ivas executed with the solemnities required by the laws of Virginia, to give it the effect of a will of lands. This fact may be shewn, by producing a proper probate in a Court *of Probate in Virginia; or, if the will has not been so proved, by any other competent evidence, according to the course of the common law. These points are fully discussed in the case of Bagwell v. Elliott, ante. If, therefore, in this case it was incumbent on the appellant to produce strict proof of the execution of the will, as a will of lands, in Virginia, according to the laws of Virginia, he would totally fail; for, in strictness, there is no legal proof of the existence of the will, or of the manner of its execution. But, according to the view I have, taken of our statutes, no such strict legal proof was necessary in this case, as to the absent defendants; and, I think, that the proofs exhibited were sufficient to satisfy the Court, of the justice of the plaintiff’s demand, and to justify the taking of the bill as confessed, and decreeing accordingly. The allegation of the plaintiff, admitted by the surviving executor, and proved by the production of papers, in relation to Duncan’s title, (which could not have been had but from Duncan’s representatives,) that he purchased from the executors, authorised by the will to sell the land; the act of the executors in taking upon them to sell; and the acquiescence of the heirs and devisees of Duncan in that sale, ever since 1800; are circumstances, which, in this suit, as against absent defendants, justify the belief, that the will was duly executed to pass lands, according to the laws of Virginia; and that the executors sold the lands in question to the plaintiff. If the will had only authorised the executors to sell, it would have been necessary that all should join in the sale, in order to effect a valid sale; unless those who sold had previously qualified as executors in Virginia. But, the will authorises any two to act, and any two were author-ised to make a valid sale, by force of the will, without any qualification as executors; the act of 1785, ch. 63, § 42, being an enabling, and not a prohibitory, statute. The act of 1777 seems to have adopted the act of 5 George 2d, ch. 25, authorising bills to be taken pro confesso after publication, in certain cases, *with His difference, that, under the English statute, the bill was taken pro confesso of course, and the decree accordingly followed, without any proof to satisfy, the Court of the justice of the demand, either before or after the order for taking the bill pro confesso. The reason which induced the Legislature of Virginia to. deviate, in this respect, from the provisions of the English statute, seems to be, that our act authorises publication against any absent defendant, who might never have heard of the demand; the English statute only authorises publication against defendants who had left the kingdom, or absconded and concealed themselves, to avoid ihe service of process in that very cause.

The right of the appellant to the interest of David Duncan in the lands in question, being thus established, as against the heirs, devisees and executors of David Duncan, is sufficiently established against the appel-lees claiming under Welch; for, the only interest they can possibly have in that question is, that the decree in this, cause shall exempt them from any new litigation with those heirs, devisees, or executors, in another suit. The decree in this cause, if in favor of the appellant, will have that effect, as it would be a complete bar to any new suit on their behalf; their only relief being, by setting aside the decree within seven years, as the statute prescribes. And if the heirs, devisees and executors of David Duncan had actually appeared and answered, admitting the case stated by the plaintiff; or, if all of them had been plaintiffs with Morrison, and had stated the case which he has stated, such admissions would have been binding, and the defendant.', claiming under Welch could not have controverted the fact, that Morrison had legally acquired David Duncan’s rights. The legal proceedings which establish that fact against the heirs, devisees and executors of David Duncan, ought to have the same effect as their admissions of record, by bill or answer, would have.

*We come, then, to the merits of the case. No one can read this record, without being convinced that David Duncan, of Pittsburg, was the real owner of the surveys, upon which the patents for the land in question issued; that he never parted with his right; and that the assignment to Welch, under which the appellees claim, was in effect a forgery.

It -is not necessary to comment at large, upon the great mass of authorities cited in the argument of this case. It appears from those cases, and others not cited, that the favor shewn by a Court of Equity,. to a purchaser for valuable consideration without notice, is founded on the rule, that where the equity is equal, the law shall prevail. Thus,- a Court of Equity will not assist an equitable title, against a purchaser of the legal title for valuable consideration, without notice of the equity; for, both parties have equal equity. And, a purchaser for valuable consideration from one in possession, and having some interest in the subject of the sale, without notice of a prior equity, (whether the vendor professed to .sell the legal title, or only an equitable interest,) may protect himself effectually by .procuring, by any means, the legal title, after notice of the prior equity. And, that, because his equity originally acquired by the purchase is equal to the prior equity; and so, even if the purchaser has in such case acquired, not the legal title, but only a better right to call for the legal title. And, although the rule is, that where equity is equal and neither party has the legal title, nor a better right than the other, to call for it, qui prior est tempore, potior est jure; yet he whd asserts such prior equity, or even a legal title, must establish his case without the assistance of the other party; for, a Court of Equity will not, in such case, compel a discovery. Thus far the cases have unquestionably gone, and one case has even gone further. The legal title being in a trustee, the owner of the equitable title devised it; but his heir at law entered into possession, *and sold to a purchaser for valuable consideration, without notice of the'' will. The trustee refused to- assert his legal title, for the benefit of the devisee, and the latter applied to a Court of Equity for relief, which was refused. But, a case contradicting this, is reported in 18 Vin. Abr. tit. Purchaser, C. pi. 15. A. mortgaged land to B. and after-wards, by his will, (having two sons, C. and D.) devised the equity of redemption to D. B. and C. join in an assignment of the. mortgage to E. who pleaded want of notice of the will, and that C. was the visible heir; yet decreed, that D. should have the equity of redemption, on the foot of the first mortgage. The first of these cases was determined upon the principle, that the testator, having the equitable right, which, but for the will, would have descended to his heir at law,' the purchaser from the heir at law in possession, without notice of the will, thereby acquired an equal equity with that of the devisee; in like manner as if the testator himself had, instead of devising, conveyed the equity and afterwards sold to the purchaser -without notice of the former conveyance; the heir at law completely substituting the testator. The other case denied that the purchaser from the heir without notice of the will, had thereby acquired any equity, or an equal equity with .the devisee; the heir never, in fact, having had any interest in the subject, by the purchase of which, the purchaser could acquire any equity. - The utmost extent to which the cases have gone, is, that he who purchases of one in possession, having some interest in the subject, or who, or whose ancestors once had an interest in the subject, which, but for the secret title not known to the purchaser, would have passed to him, thereby acquires an equity which may be protected by the acquisition of the legal title in any way. But, no case has yet occurred, in which it has been decided, that a purchaser without notice, from a mere stranger, who never had, and whose ancestors never had, any interest whatsoever in the property, gave any eouity whatsoever to the purchaser. •''The case of the bank stock transferred upon a forged power of attorney, in which Lord I-Iardwicke gave relief against the transferee, was decided upon general principles of la-w and equity. The subsequent case, in which relief was given in favor of the owner against the bank, proceeded upon the ground, that the rules of the bank had bound the bank to make good the loss, and their negligence in permitting the assignment, without the proof as to the authenticity of the power of attorney, which their 'own . rules required. If the bank had not been so responsible, no doubt but the purchaser, although he had acquired the legal title, without actual fraud on his part, would have been, according to Lord Hardwické’s decision. The true owner could not, in any event, have lost his property by the forgery. The purchaser would be bound to enquire as to the right and authority of the person with whom he dealt, to transfer the property belonging to another, and would have borne the consequences of his gross negligence in that respect, if the bank had not taken upon themselves that duty and responsibility. Gross negligence is, in equity, equivaient in its effects, to fraud or notice. Ignorance as to the identity of the person with whom the party deals, or of the authenticity of the title papers under which he purchases, proceeds in all cases from gross negligence; for, the facts in respect to those circumstances could be ascertained with reasonable diligence, in all cases. A purchaser ought to be required to look to these points at least, at his own peril. Meade v. Young, 4 T. R. 28.

In the case at bar, the papers under which Hicks and Campbell and the Curries purchased, shewed, that the original entries and surveys belonged to David Duncan, and it was his equitable or inchoate right' to the land, which they designed to purchase, They had full notice of his title. With reasonable diligence they might have ascertained who was the real owner of the property, and whether the assignment to Welch was genuine or a forgery. They purchased without any such enquiry, and were *guilty of gross negligence. Neither Welch, nor any claiming under him, acquired by their respective purchases, any_ equity whatever, to be set up in opposition to that of David Duncan and those claiming under him. None of them purchased a legal title. Their rights, in equity, must be determined according to the state of things at the time of the purchase, and cannot be varied by the subsequent acquisition of the legal title, without any further valuable consideration. If the appellees claiming under Welch could succeed in this case, then, upon the same principles, if one mortgaged his land, and another, personating him, sold the land for valuable consideration to one who believed that he was dealing with the true owner and the purchaser afterwards purchased the mortgage and thus acquired the legal title, the true owner could not redeem, but would lose his estate forever, without remedy.

_ In equity, he who has acquired the legal title to the prejudice of another who has the better equitable right, is a trustee for the latter.

David Duncan’s rights were never forfeited in fact to the Commonwealth. The surveys were returned and the patent issued in due time; and the patentees, who, by taking out the patent, made it impossible for those claiming under David Duncan, to derive any benefit from a return of other copies of the surveys to the Register’s office, (for, they could not, if that had been done, have gotten patents,") cannot repel the claims of the appellant, upon the ground, that if they had not taken out the patents, David Duncan’s rights might, or would have been' forfeited. As soon as they took out the patents, they were trustees for those claiming under David Duncan; and the rights of the parties could not be varied by the failure of those representatives _ to do an absolutely fruitless and vain thing, that is, to return the surveys again to the office.

Neither does the plea, that the plaintiff was a purchaser of a pretensed title, avail the defendants. It is not necessary to investigate the general doctrines upon that subject *in this case; since, whatever they may be, they do not apply in the present instance. The right of D. Duncan’s representatives was equitable and not legal. There can be no dissei-sin of an equity; 1 Meriv. 357. Nor any possession adverse to an equitable estate, unless it be at the same time adverse to the legal estate, upon which the equitable estate depends. Ibid. If another had dis-seised the patentee, the possession of the disseisor would have been adverse, both to the patentees and the representatives of D. Duncan. But, the patentees having obtained the legal title, to which those representatives were in equity entitled, were trustees for them, and they might make a valid transfer of their equitable right.

The decree should, therefore, be reversed, and the holders of the legal title of the lands in question, declared to be trustees for the plaintiff, and decreed to convey to him, upon his paying to them respectively, such sums as they have expended in taking out the patents, and in the payment of taxes on the lands.

JUDGE COALTER.

On the merits of,, this case, I think the decree is erroneous and must be reversed.

At the time the appellees made their purchase, the legal title of the lands was in the Commonwealth; and the equitable right, under the entries and surveys, was in the heirs of Duncan, who procured those entries and surveys to be made. And, although the appellees, or those under whom they claim, have since acquired the legal title from the Commonwealth, by virtue of the fraudulent or forged assignment, (relied upon and exhibited with the answer, and procured by Welch, under whom they claim,) they never had any transfer from Duncan, the true owner, of his equitable rights, binding on him and his heirs. A legal title, acquired under such circumstances, can be no bar to the equity of Duncan, or those claiming under him, *any more than such title, if acquired by Welch himself, would be a bar to that equity. They can only stand in his shoes. They have no right to-stand in the situation of a subsequent purchaser of an equity, who unites with that equity the legal title, before notice of a prior purchase. In that case, both parties acquire Lhe rights of the owner, and each has a remedy against him. But. the parties in this case, presuming them to know the law, had notice that all was not regular on the part of Welch, and ought, therefore, to have enquired. The assignment made to Welch by the pretended David Duncan, was of the entries, not of the surveys. This assignment was made after the surveys, at which time, as I understand the law, no one was entitled to copies of the surveys, except the true owner; and, as they are made assignable by law, this was doubtless intended, amongst other things, to prevent fraudulent assignments. But, every person is entitled to a copy of the entry. 3 Rev. Code, (new edit.) p. 368. Welch perpetrated the fraud, by procuring these, and an assignment of them, after they had been reduced to surveys, when the surveys themselves ought to have been assigned, in order to entitle the assignee to^ a patent. By this means, he probably prac-tised a fraud on the surveyor, who, perhaps, supposing him the owner, gave him copies of the plats, file also practised one on his assignees, and finally on the Register, who issued grants, although there was no actual assignment on the surveys, as the law requires. So, that if there was any doubt about my first position, I think the appellees, or those under whom some of them claim, were bound to notice this irregularity, and to take the consequences.

Warrants and surveys are made assignable by law, and where a patent issues to the assignee of a plat, the assignment is to be stated in the patent. 3 Rev. Code, p. 371 and 372. There is no law, that I can find, authorising an assignment of an entry. Such assignments, however, I believe, have been common, and held a . good transfer of *the equitable title, so as to enable the assignee to make a survey in his own name. But, after the entry has been reduced to a survey, then the regular course is, for the party to get a copy of his survey, and to assign it, the entry being now functus officio. 2 Rev. Code, 369. In regard to the survey, the act provides, that within three months after making the survey, the surveyor shall deliver to his employer or his order, a true plat and certificate of survey, who shall, within 12 months, return the same to the Register’s office, Ibid. p. 370; and that no surveyor shall, at any time within 12 months after the survey made, issue or deliver any certificate, copy or plat of land by him surveyed, except only to the person or persons for whom the same was surveyed, or to his, her or their order, unless a caveat shall have been entered, &c., to be proved by an authentic certificate of such caveat, &c. Ibid. p. 372.

It might seem, from this, that after 12 months, any person might get a copy of the survey; but, as various acts of Assembly, passed from time to time, extended the time of making returns of surveys to the Register’s office, I believe the sound construction of the act, and the practice of the surveyor under it, was, not to deliver copies of plats to any but the owners, so long as they had time to return the same, unless in case of'caveat, as aforesaid. Be this, however, as it may, an assignment of the plat was necessary, in order to entitle the assignee to a patent, which must recite the assignment as aforesaid.

As to the other points in this case, whether the appellant has sufficiently deduced his title from David Duncan, and the ground stated in the decree for dismissing the bill, I am of opinion, for the reasons stated by the Judge who has preceded me, that the decree cannot be supported on either of those grounds. It must, therefore, be reversed, and the decree entered which has been prepared.

JUDGE BROOKE,

concurred; and the following- decree was entered:

*The Court is of opinion, that the assignments under which James Welch claimed title to the surveys in the proceedings mentioned, made for David Duncan and David Duncan & Co., of Pitts-burg, being made by one having no title thereto, neither the said Welch, nor his assignees, nor the assignees of his assignees, acquired by their respective purchases thereof, any equity which a Court of Equity ought to respect, when opposed to the rights of David Duncan, or of those claiming under him; and that the subsequent acquisition of the legal title, without further consideration paid by the said assignees, could not better their case; that, therefore, those to whom the patents issued, were, thereupon, in equity, trustees for those claiming under the said David Duncan, and cannot avail themselves of the omission of the rightful 'owner of the land, to assert his claim at an earlier period; and, that the objection, that the appellant was a purchaser of a pretensed title, is also unavailable to the appellees -claiming under Welch; that the appellees, respectively, in whom the legal title to any of the lands in the proceedings mentioned is vested, should be decreed to convey the same, with special warranty to the appellant, upon his paying to them, respectively, any sums of money which they may respectively have paid, for the costs of taking out the patents for those lands, or may have paid for taxes upon the same; the amount of which should be ascertained under the direction of the Court of Chancery; and that the said decree is erroneous, &c. 
      
       Jtjdse Cabblb, aid not sit in this cause.
     