
    Goodwin v. M’Cluer.
    July Term, 1846,
    Lewlsburgr.
    (Absent Brooke, J.)
    i. Equity Jurisdiction — Patents—Repeal—Limitation of Actions. — A Court of Equity will not entertain a bill to repeal a patent, filed more than ten years after the patent was issued.
    a. Patents — Title in Another — Writ of Right — Injunction. — A party having obtained a patent for land with knowledge of the prior equitable title in another, and having brought a writ of right for the land, a Court of Equity will award an injunction to stay the proceedings at law for a reasonable time, to afford the tenant an opportunity to get in the legal title to the laud outstanding in a third person.
    3. Presumptions — Power of Attorney to Convey Land. —M. B. living out of the state, owned a tract of land here. His son came here, alleging he was duly authorized to sell the land ; and did sell and convey the same as attorney in fact of his father, and receive the purchase money. A period of time sufficient to bar a recovery in a writ of right has since elapsed ; and no claim has been asserted thereto by M: B. or his heirs. Held. A presumption amounting to full proof arises, that the son was the duly authorized attorney in fact of M. B., with full power to sell and convey said land ; and that a regular power of attorney from if. B. to his son did exist.
    4. Equity Practice — Commissioner — Conveyance of Title. — A Court of Equity will appoint a commissioner to convey a legal title outstanding in parties béfore the Court, to the party having the equitable title, and entitled to the legal title.
    On the 23d of December 1790, a patent was issued from the Commonwealth of Virginia to Matthew Ralston, *then and until his death living out of the State of Virginia, for five hundred and sixty-one acres of land, in the county of Botetourt. In 1796 William Ral-ston, the son of Matthew, came to the county of Botetourt, professing that he was sent by his father to sell this land, and he sold two hundred and ninety-eight acres of it to John Miller, for which he received the purchase money. Miller being indebted to Hodgson, Nicholson & Co. of Baltimore, transferred his purchase to them in discharge of his debt; and William Ralstoji as attorney in fact of Matthew Ralston, conveyed the land to John Beale as agent of Hodgson, Nicholson & Co., by deed dated the 17th September 1796. The power of attorney from Matthew Ralston to William is not produced, nor is there any proof of its existence, but no claim has since been set up to the land by Matthew Ralston, or his heirs. Beale held the land under the deed from William Ralston, and rented i;t to John Rogers; and about the 3ear 1814 Septimus Goodwin moved upon it, under some agreement with Rogers. By this time Beale was dead, and Goodwin paid no rent for the land; but it still stood upon the commissioner’s books in the name of Beale; and Goodwin paid the taxes upon it. Goodwin held possession of the laud in this ■ way until 1820, when he obtained a patent for it. He continued to live upon it until 1825, when James Breckenridge, claiming the land as the agent of Henry Thompson, who represented Hodgson, Nicholson & Co., Goodwin left it, and removed to the State of Indiana.
    The partnership of Hodgson, Nicholson & Co. was dissolved on the 1st of January 1799, and Hodgson was authorized to wind up the business of the concern. He appointed Henry Thompson his agent, to do the business. The partnership effects of this concern were transferred to Hodgson, Rotten & Thompson, and upon the dissolution of their partnership, which took place about the year 1802, the property and effects of Hodgson, ^Nicholson & Co. became the property of Hodgson & Thompson ; of which Henry Thompson was a partner; and he was authorized by a power of attorney from Hodgson to settle the whole business of all these firms.
    Thompson being thus authorized both as partner and attorney in fact to dispose of this land, he by a power of attorney dated the 5th of January 1825, appointed James Breckenridge his agent, with power to take such measures as should be necessary to recover possession, and then to sell and convey it; and Breckenridge having gotten possession as before stated, from Goodwin, sold one hundred and sixty-seven acres of the land to John M’Cluer) and conveyed it to him by deed dated the 15th November 1825. John M’Cluer conveyed it in March 1829, to the appellee Andrew M’Cluer.
    In 1840, , Septimus Goodwin brought a writ of right in the Superior Court of Bote-tourt against Andrew M’Cluer, to recover from him the land conveyed by Breckenridge, as attorney in fact of Thompson, to John M’Cluer. And then M’Cluer filed his bill in the same Court, in which, after stating the facts as to the title to the land in controversy, he charged that when John M’Cluer was in treaty with Breckenridge for the purchase of the land, he was apprised that Goodwin had previously set up some sort of claim to it, but did not know what the character of his claim was. That M’Cluer not being satisfied with the title, a meeting at length took place, at which Breckenridge, Goodwin and M’Cluer were present. The subject of the title was there discussed; M’Cluer’s intended purchase was mentioned; and Goodwin then and there expressly renounced all claim of title to the land. In consequence of this disclaimer John M’Cluer purchased the land, and received a conveyance for it from Breckenridge; and Goodwin soon after-wards removed to the western country. He made the heirs of Matthew Ralston, *Beale, and Thompson, and Septimus Goodwin parties, and prayed that he might have a decree for a conveyance of the legal title from the parties in whom it might be considered to be vested, and that Goodwin might be enjoined from all further proceedings in his suit until the matters set forth in the bill should be heard and determined.
    Goodwin filed an answer, in which after objecting to the jurisdiction of the Court, he denied that he had abandoned his claim to the land in controversy, or that the meeting between Breckenridge, John M’Cluer and himself, stated in the bill had ever taken place; or that he ever compared his title with that by which General Breckenridge claimed; or ever admitted the inferiority of his title to that. And he denied that, b3* any act or declaration of his, he induced M’Cluer to purchase the land ; or stood by and saw the land sold to him without setting up his claim. He alleges that, being too poor to employ counsel, and having a large family, when Breckenridge set up a title to the land he removed from it, from fear of a controversy with that gentleman; that he received nothing for removing from the land, and always intended to assert his rights when he should be able to do so.
    The cause came on to be heard in April 1845, when the Court being of opinion that Goodwin’s patent was obtained by a false suggestion that the land was waste and unappropriated; and being also of opinion that the plaintiff had a superior equitable title, decreed that Goodwin’s patent should be repealed; and ordered that the decree should be certified to the register of the land office. From this decree, Goodwin applied to this Court for an appeal, which was allowed.
    John T. Anderson, and Michie, for the appellant.
    F. H. Mays, for the appellee.
    
      
      Patents — Bill to Repeal — Limitation of Actions.— The principal case is cited in Bickle v. Chrisman, 76 Va. 678, in which it is said that it is the only case in which the provisions relating to the repeal of patents has been the subject of consideration by that court.
      In the principal case it was claimed that the patent had been obtained upon false suggestions, and circumstances were relied on to establish the existence of a trust, to take the case out of the operation of the statute, but Judge Allen said the language was express that no patent could be repealed after the lapse of ten years. Bickle v. Chrisman, 76 Va. 678.
    
    
      
      Presumptions. — The principal case is cited in Matthews v. Burton, 17 Gratt. 318.
    
   *AI7CFN, J.,

delivered the opinion of the Court.

The Court is of opinion, that as by the act of March 8th, 1819, Rev. Code, ch. 119, a particular mode is prescribed, by which a patent may be repealed, which was not pursued in this case; and as by said act no letter patent or grant which issued upon or after the 26th of February 1818, can be repealed upon any scire facias sued out more than ten years after the date of such letter patent or grant, and more than ten years had elapsed from the 13th day of June 1820Í the date of the patent to the appellant, be-‘ fore the institution of this suit, it was error to render a decree repealing the said patent.

But the Court is further of opinion, that as it appears the appellant acquired the possession of the land under some arrangement with Rogers, who is proved to -have held as tenant under John Beale, who claimed the land by virtue of the, title to which the appellee Andrew M’Cluer alleges he is equitably entitled; that during the period the appellant so held possession, the said land was charged on the books of the commissioner of the revenue to the said John Beale, and the taxes so charged were paid by the appellant; that the appellant having thus acquired possession wijth ’the knowledge of the claim of said Beale, subsequently acquired a patent for said land ; but thereafter abandoned the possession upon a claim being asserted by those interested in the title alleged to have been vested in said Beale; and those under whom the appellee M’Cluer claims, thereupon purchased the land from a party supposed to be authorized to convey the title so as aforesaid alleged to be vested in Beale, and have paid up the purchase money and remained in the undisturbed possession of the land until the commencement of the writ of right in the bill mentioned, the circumstances aforesaid authorized the Court of Chancery to award an injunction to stay proceedings at law for a reasonable time, to afford the tenant an opportunity to get in the legal title to the land?outstanding *in a third person, if he could shew he was in equity entitled to call for the same.

And the Court is further of opinion, that as it appears said land was part of a tract granted to Matthew Ralston by patent dated the 23d December 1790, and was conveyed by William Ralston, professing to act as attorney in fact of Matthew Ralston, to the said John Beale, as attorney in fact for the firm of Hodgson, Nicholson & Co. by-deed dated the 13th of September 1796; that said Matthew Ralston at the date of saiddeed was not a resident of Virginia, and continued to reside without the same up to the time of his death; that said William Ral-ston was the son of said Matthew, and came to this county alleging himself to be duly authorized to sell said land; that hfe did sell and convey the same as such attorney in fact, and received the consideration therefor; that the land has° since that period been held under such conveyance by the said Beale, as attorney of said Hodgson, Nicholson & Co., and his and their tenants, agents or vendees, with the exception of the short period the same was in the possession ’of the appellant, acquired and abandoned under the circumstances aforesaid; and during all that period, (a length of time sufficient to bar a recovery in á writ of right,) no claim to the land -has 'ever been asserted by said Matthew Ral-ston or his heirs; a presumption amounting' to full proof arises, that said William Ral-ston i was' :the-. duly authorized attorney in fact of said Matthew Ralston, with full power to sell and convey said land, and that a regular power of attorney from the said Matthew to said William Ralston did exist. The Court is therefore of opinion, that the said deed from the said William Ralston to the said John Beale, dated the 13th September 1796, was good and effectual as the deed of said Matthew Ralston, and as against him and his heirs, vested the legal title to the land so conveyed in the said John Beale.

*And the Court is further of opinion, that said John Beale held the legal title as trustee for the firm of Hodg-son, Nicholson & Co. his principals, who would have been entitled to a conveyance of the legal title; but it furthermore appears by the exhibits and letters of members of said firm, that the same was taken .by their agent Beale in payment of a debt or debts due the firm, and that the firm desired the same to be sold for the benefit of the firm and to discharge the debts.

That said" firm was dissolved on the 1st January 1799, and John Hodgson, one of the firm authorized to close the transactions of said firm, and that said John Hodgson on the 7th January 1799, constituted said Henry Thompson his agent to adjust and settle up the concerns of said'firm. That said Thompson in pursuance of such appointment assumed the agency and the control over the land in controversy as appears by his letter to said John Beale of the 12th April 1799.

That in addition to such authority of said Thompson as .agent* it appears by the evidence of John Nicholson a member of said firm of Hodgson; Nicholson & Co., that the effects of said firm were transferred to the fi.-m of Hodgson, Rotten & Thompson; and that upon the dissolution of said last mentioned firm the effects and assets thereof became the property of Hodgson & Thompson, in which firm Henry Thompson was a partner; and being such partner, the said John Hodgson by power of attorney dated the 23d May 1801, constituted him his attorney to attend to the transactions of the firm.

The Court is of opinion, that by virtue of the authority vested in said Henry Thompson as aforesaid, as agent and attorney in fact, and in consequence of the transfers of the interests of said firms successively, until the assets vested in the firm of Hodgson & Thompson, of which he was a member, (and as it seems surviving member,) it was competent for said Henry Thompson *to dispose of the equitable interest held by said firms in said land, and that upon the sale of such equitable interest made by the said Henry Thompson, through his attorney in fact Gen. James Breckenridge, to the party under whom the appellee M’Cluer claims, and the full payment of the price and the conveyance of the land by said last men-1 tioned attorney, the purchaser became invested with the equitable right of the said mercantile firms and each of them, and all the .members thereof in and to said land, and entitled in their right and for his own benefit to call for the legal title.

The Court is therefore of opinion, that the appellee A. M’Cluer was entitled to a decree affirming the validity of the deed from Matthew Ralston, by his attorney William Ralston, and that the legal title of said Matthew Ralston to said land passed thereby to the said John Beale; and that in virtue of the purchase made from said Henry Thompson as aforesaid, he was entitled to call for the outstanding legal title in the heirs of said John Beale; and as the said heirs were regularly before the Court, a decree should have been pronounced directing a commissioner for and on behalf of the heirs of Beale to convey to the ap-pellee by deed with special warrantee the tract of land conveyed to John M’Cluer by James Breckenridge as attorney in fact for Henry Thompson, by deed dated the ISth of November 1825, and subsequently conveyed by said John M’Cluer and wife to the appellee Andrew M’Cluer, by deed dated the 9th day of March 1829. Therefore reversed with costs.

And this Court proceeding to make such decree as the Court below ought to have made, it is adjudged, ordered and decreed that the injunction awarded to restrain the said Septimus Goodwin from using the patent to himself for the land in the bill mentioned upon the trial of the suit at law between himself and the said Andrew M’Cluer, be dissolved, and that the bill of the plaintiff *be dismissed as to said Goodwin, but without costs, and without prejudice to the legal rights of the parties as respectively held under the patents in the bill and proceedings mentioned.

And it is further adjudged, ordered and decreed, that the deed of the said Matthew Ralston of the 13th of September 1796, by his attorney in fact William Ralston to the said John Beale was good and effectual as against the said Matthew Ralston and his heirs, and all others to vest the legal title of said Matthew Ralston to the land thereby conveyed in the said John Beale. And it is furthermore adjudged, ordered and decreed, for the reasons aforesaid, that H. W. Bowyer, clerk of the said .Circuit Court, who is hereby appointed a commissioner for that purpose, do in the names of the said heirs of John Beale deceased, execute to the said Andrew M’Cluer a deed with special warrantee for the land described in the said deed from James Breckenridge to John M’Cluer, and acknowledge the same in order to be recorded; and that each party pay his own costs.  