# Brush v. Ware

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.
United States Supreme Court
40 U.S. 93
Brush v. Ware
APPEAL from the Circuit Court of Ohio. The appellees, John H. Ware and others, heirs of John Hockaday, an officer in the Virginia line on the continental establishment, filed their bill in the circuit court of Ohio, against the appellant, Henry Brush, and against others, for the recovery of certain lands in the state of Ohio, in the military reservation. John Hockaday was entitled, under the acts and resolutions of congress, to 4000 acres, in the Virginia military reserve. Afterwards, on the motion of the complainants, the bill was dismissed as to all the defendants except Henry Brush; and a decree having been entered in the circuit court in favor of the complainants, Henry Brush prosecuted this appeal.
As the heirs of John Hockaday, the complainants claimed title to the land in question. John Hockaday made his will, disposing of his personal property only; and Ware, one of the executors, proved the will. As executor Hockaday, he made a fraudulent sale of the military right of the testator to one Joseph Ladd, and having obtained from the executive council of Virginia a certificate of the right of John Hockaday for the land to which he was entitled, he assigned the same to John Ladd. On this certificate, Ladd obtained, as the assignee of Ware, executor of John Hockaday, four warrants, each for 1000 acres. Part of the land, under one of these warrants, through assignments to George Hoffman and others, became the property of Henry Brush; who, under an entry made by George Hoffman, obtained a patent for the land held by him, from the United States, on the 23d of January 1818.
The bill of the appellees asserted, that Henry Brush was a purchaser with notice of the superior title of the heirs of John Hockaday, and prayed that he might, by a decree of the court, be directed to convey the land to them, they having the prior equity.
In the answer of Brush, he said, the land in controversy was granted to him, by patents, dated January 23d, 1818; that he had no recollection or belief that he ever saw the warrant, entry or survey, or copies of either; that he was an innocent purchaser for a valuable cousideration: he denied all notice of complainant's claim, at or before the emanation of the patents, and all knowledge of any fraud; he said, he believed that the purchase by Ladd was fair, and for a valuable consideration; that he had no knowledge what the will of Hockaday contained: he said, he has been in possession, under claim of title, since 1808, and had made lasting and valuable improvements; and insisted, that complainants ought to be barred by the statute of limitations; and that at any rate, he ought to be paid for all improvements. And by his amended answer, he claimed compensation for taxes paid, and for an allowance for a locator's share; for expenses in perfecting the title; and claimed all the surplus land in the survey.
The case was argued by Mason, for the appellant; no counsel appeared for the appellees.
Mason:-The appellant is a purchaser for valuable consideration, without actual notice, and holds the land in controversy by patent from the United States. The heirs of John Hockaday, deceased, are proceeding by bill in chancery, to recover the land, on the alleged ground that the assignment of the claim of their ancestor to bounty-land was made by his executor, without authority, and consequently, that their rights are not divested or impaired by that transfer.
Having acquired the legal title, without notice of any adversary claim, the appellant is entitled to the aid and protection of the court; 'and upon this principle, that all men who stand on equal ground, shall have equal equity; because the court cannot do anything for one, without injuring the other.' No title can be better than the title of such a purchaser. If he has a legal title, the court cannot interpose. Lord Drogheda v. Malone, cited in note to Mitf. Ch. (3d. Am. ed.) 340.
Is the appellant affected by constructive notice? Presumptive notice is, where the law imputes to a purchaser the knowledge of a fact, of which the exercise of common prudence and ordinary diligence must have apprised him. As, where a purchaser cannot make out a title but by a deed which leads him to another fact, whether by description of the parties, recital or otherwise, he will be deemed conusant thereof. Constructive notice is, in its nature, no more than evidence of notice, the presumptions of which are so violent, that the court will not allow of its being controverted. 2 Sugd. Vend. 292; Newl. Cont. 511. In Dexter v. Harris, 2 Mason 536, Mr. Justice STORY, says: 'There is no such principle of law, as that what is matter of recerd shall be constructive notice to a purchaser The doctrine upon this subject, as to purchasers, is this, that they are affected with constructive notice of all that is apparent upon the face of the title deeds, under which they claim, and of such other facts as those already known necessarily put them upon inquiry for, and as such inquiry, pursued with ordinary diligence and prudence, would bring to their knowledge. But of other facts extrinsic of the title, and collateral to it, no constructive notice can be presumed; but it must be proved.' In Flagg v. Mann, 2 Sumn. 556, the same learned judge, after stating that constructive notice could not be rebutted, thought that the cases he had referred to, ought to 'admonish courts of equity in this country, where the registration of deeds, as matters of title, was universally provided for, not to enlarge the doctrine of constructive notice, or to follow all of the English cases on this subject, except with a cautious attention to their just application to the circumstances of our country, and to the structure of our laws.' Chancellor Kent (4 Com. 172, old ed.) declared, 'It was, indeed, difficult to define, with precision, the rules which regulate implied or constructive notice, for it depended upon the infinitely varied circumstances of each case.'
I shall contend, that the doctrine of constructive notice is not applicable to grants for land issued by public authority; nor does it apply to the purchaser of a military land-warrant, issued by the state of Virginia; nor to the purchaser of an entry or survey in the state of Ohio, made in virtue of such warrant. 1. Because there is a legal presumption, that the acts of the public agents employed to superintend and conduct the proceedings from the commencement of an inceptive title to its consummation in a grant, have been in conformity with law. 2. Because the purchaser, though put upon inquiry by facts already known, cannot, by the exercise of ordinary diligence and prudence, arrive at the knowledge of other facts necessary to be known. 3. Because, in the case of military warrants, they are issued by the authority of a sovereign state, in pursuance of law; and the legal presumption is, that its officers have performed their duty in executing the trusts confided to them. 4. Because, lastly, such warrants are transferrible by assignment; and ought to pass, like commercial paper, into the hands of a bon a fide purchaser, discharged from all equities, of which he had not actual notice. These propositions he hoped to maintain, both upon reason and authority.
The doctrine of constructive notice has been too long established, to be now called in question. Therefore, it is not denied to be law, as applied by courts of equity to deeds and other instruments of writing for the transmission of real estate from one individual to another. Public grants are supposed to rest upon a different foundation from that of private conveyances. They emanate from the sovereign power of the country, according to certain rules and forms of proceeding, prescribed by itself, for the regulation of its own action. And when so issued, no matter what recitals the patent may contain, 'every man has a right to draw from the existence of the grant itself,' the 'inference that every pre-requisite has been performed,' and that these rules have been complied with on the part of the grantor. The legal presumption is in favor of the validity of every grant issued in the forms prescribed by law.' These presumptions are not understood to exist in favor of deeds and other transactions between private citizens; on the contrary, such deeds are not of themselves proof of title, and can be made so only by the aid of extrinsic evidence. A deed or will is merely a link in the chain of title, of which a patent is the beginning. The former transmits a legal title already in existence-the latter creates the legal title, and brings it into existence.
A public grant is not only an appropriation of the land, but is itself a perfect title. Green v. Liter, 8 Cranch 247-8. Officers are appointed and commissioned by the government for the express purpose of conducting and supervising all the preliminary proceedings, from the origin to the consummation of the title; and when these incipient measures are completed, and the grant issued, the law presumes, that the government agents have performed their duty, and that the grant is valid. In one word, it is a legal presumption, in favor of a patent, that there are no defects behind it, by which it can be invalidated or avoided. But notwithstanding this presumption, it is admitted, that defects may, in fact, exist. And hence, it is contended on the other side, that if the patent contains recitals which would fairly conduct an honest inquirer to the discovery of these defects, a purchaser is justly chargeable with notice of them, whether he made inquiry or not; and this, upon the principle, that he is guilty of crassa negligentia, in not examining the nature and extent of a danger of which he had thus received notice. Will the law impute gross negligence to purchaser, for omitting to search for defects in the origin of his title, in a case where the law; at the same time, presumes that no defects exist? Is not one presumption inconsistent with the other? Can they both exist together in the same case? And if they cannot, which ought to yield? Can it be tolerated, as just, in any system of jurisprudence, that the law should first invite the confidence of the purchaser; and then turn against him, and treat that very confidence as criminal?
The executive of the United States has authority to issue patents to purchasers of the public lands. Indeed, it is one of the duties imposed upon him by the laws of congress; and to see that the laws are faithfully executed, is as imperative on him in this branch of the public service, as it is in any other. In the discharge of that duty, the exercise of a wider latitude of discretion and judgment than is permitted in most other cases, is necessarily confided to that officer. He must be the judge of the sufficiency and regularity of the various preliminary steps required to be taken toward the completion of a legal title, and see that these pre-requisites have all been complied with. The nature and extent of this discretion could not be better illustrated, than by referring to the duties required to be performed by the executive, under our system of pre-emption laws, daily becoming more complicated. From the number of public agents employed, and from the character and variety of their duties, in the disposal of the public lands, the inference is irresistible, that errors must be committed. If, under such a state of things, the purchaser is to be affected with notice of these irregularities, and that, too, after the emanation of the patent, there can be no security in land titles, no confidence in the action of the government.
But ought not the acts of the highest officer in the republic, when performed in the execution of a function prescribed by law, and requiring the exercise of judgment and discretion, to be regarded by the citizen, as valid and conclusive? A contrary presumption, or the absence of any presumption in favor of the acts of a public officer, when performed within the sphere of his duty, would make it necessary for the private citizen, if he would avoid the consequences of constructive notice, to visit the land-office and examine the records there; and at Washington city, to satisfy himself that the officers had fulfilled their duty, before he could venture to become a purchaser. Upon this theory, he must re-judge, and at his own peril, what had already been adjudicated by a competent officer, charged with that particular duty. In such a case, he might differ from the officer; and the court from both.
The executive of the United States, in issuing patents for land, is required to perform, and does perform, certain acts of a judicial nature. And when an executive officer acts judicially, as he often must (for the idea of a perfect separation of the powers of government, is a mere abstraction, and wholly unattainable in practice), his decisions are as valid, and have the same effect as judgments pronounced by courts of justice; and are, ordinarily, far more difficult to revise, if erroneous, than the latter. Judicial power, by whomsoever exercised, is judicial power still, and its determination, whether announced from the bench, or at the counseltable, have all the authority of adjudications made in conformity with law, and are entitled to be respected as such. The president prescribes the form of the grant, and decides from the evidence before him, whether a patent ought to issue; and whether the applicant, or which of the applicants, if more than one, is entitled to have the grant. The presumption of law is, that he has decided these questions correctly; and therefore, the purchaser is not obliged, in order to protect himself, to examine the grounds of the decision.
This is a contest between parties claiming under the same tile. In this case, the patent is valid upon its face; it was not issued without authority; it was not protected by statute; the United States had title to the thing granted; and hence the patent cannot be impeached collaterally in a court of law. In support of the foregoing principles the court are referred to the following cases, viz: Polk's Lessee v. Wendall, 9 Cranch 87; Patterson v. Winn, 2 Pet. 233; Patterson Jenks, Ibid. 216; Stringer v. Young, 3 Ibid. 320; Boardman v. Reed, 6 Ibid. 328; United States v. Arredondo, Ibid. 727-32; Miller v. Kerr, 7 Wheat. 1; Hoofnagle v. Anderson, Ibid. 212; Bouldin v. Massie, Ibid. 122.
It is a presumption of law, that public agents and officers, appointed by government, have properly executed their office, and complied with the law, in discharging the duties imposed on them. Jackson v. Marsh, 6 Cow. 281; 4 Cranch 431; Taylor v. Brown, 5 Ibid. 242; 9 Cow. 110; 19 Johns. 347; Bull. N. P. 298; Williams v. East India Company, 3 East 192; Strother v. Lucas, 12 Pet. 437. Every act required to be done, from the commencement to the completion of a military title, derived from the laws of Virginia, is either performed by, or submitted to the cognisance of, an officer appointed for that particular purpose. Now, as there is a legal presumption in favor of the acts of these officers, I maintain, that there is no place for the application of the doctrine of implied notice to this class of titles.
The idea of presumptive notice is met and repelled by an antagonistic presumption.
Again, the distinction between a patent issued by the sovereign authority, and deeds from one citizen to another, is well illustrated by the fact, that the former, unless it is void upon its face, or has issued without authority, or is prohibited by statute, can only be set aside by a regular course of pleading, in which the fraud, irregularity or mistake is directly put in issue. And the state only can take advantage of an improvident or mistaken grant. 3 Bl. Com. 261; 1 Munf. 134; 2 Wash. 55; 4 Monr. 51; 4 Bibb 329; 5 Monr. 213; 12 Johns. 77; 10 Ibid. 23; 1 Mason 153; 1 Hen. & Munf. 306; 4 Johns. 143; 2 Bibb 628, 487. The statute of frauds and perjuries has no application to public grants. Neither fraud, nor the want of consideration, can be averred, as grounds to impeach a patent, on the application of a creditor.
But the doctrine of constructive notice does not apply to the purchaser of a military warrant, an entry or a survey. Without intending to say, that a warrant is not necessary to the validity of an entry, or that a survey would be good, without an entry, I contend, that a warrant is to be presumed from the existence of an entry; on the principle, that as it would be a violation of duty on the part of the principal surveyor, to make or record an entry, without the authority of a warrant; and as the law will presume that the officer has duly executed his office, it follows, therefore, that an entry is proof, till the contrary appears, of the existence of a warrant. For the same reason, a survey is presumptive evidence of the existence of an entry duly made. These are official acts, performed by officers appointed by public authority, and sworn to perform these duties. And the law gives them credit for fidelity, till the contrary is shown; and nothing, surely, can be more just and reasonable.
Besides, as the law does not direct the warrant to be recorded in the surveyor's office, and as it is not, in practice, recorded there, it may not be accessible to the purchaser; and therefore, it would be unreasonable to charge him, by implication, with a knowledge of its contents. It may have been lost or destroyed, after the entry was made. The state of Virginia, and afterwards the congress of the United states, early made provision for these casualties, by making 'a certified duplicate of the warrant' equivalent to the original, for the purpose of obtaining a patent. Ohio L. Laws, 115 133. And for another reason, the warrant may be beyond the reach of the purchaser. It may, at the time, be in the hands of a deputy-surveyor, for the purpose of executing a survey of that part of it which had not been surveyed before. Ibid. 122. It is submitted, therefore, that the fact that the warrant may not at all times be within reach of the purchaser, affords a reason why he ought not to be affected with constructive notice of its contents.
But again, no more than ordinary diligence and prudence are required of a purchaser, in the cases where the doctrine of implied notice is admitted to be applicable. For, if a higher degree of diligence and attention than ordinary becomes necessary, the rule itself ceases. What are the facts of the case? The lands lie in the state of Ohio, where the office of the principal surveyor for the district is established. The tribunal that receives the evidence and adjudicates the right of the original claimant to bounty land, and which gives the certificate, and also the office which issues the warrant, are all established in the state of Virginia, distant not less than 600 miles from the land. If the claim was assigned, before the warrant was issued, the evidence of the power of the assignor to transfer the claim will not be found in the office of the principal surveyor in Ohio. It may or may not be found in the office of the register at Richmond, for I know of no law requiring it to be filed or recorded there. Suppose, then, citizen of Ohio, or of some other state, wishes to purchase a tract of land in the Virginia military reserve, in Ohio, what are the means within his reach, by which he may, in exercising ordinary diligence, shield himself against the consequences of constructive notice? The purchaser goes to the office of the principal surveyor for the district, and by the courtesy of that officer obtains permission to examine the records and files of the office. And what does he find there? The warrant may be found there, or it may not, for reasons already stated. But constructive notice, if applicable at all, must be applied without regard to whether the warrant can, by any diligence, be found or not. If it is in the office, the purchaser will see from the face of it, that it was issued to the soldier himself, or to heirs, or to an executor, or to a purchaser. But in either case, the law presumes it properly issued; and therefore, the law will not charge the purchaser with knowledge that it was improperly issued to the warrantee. Neither the entry nor the survey give any notice by which the purchaser is put upon inquiry for the rights of others; nor do they furnish any clew nor do they furnish any clew by which such rights can be ascertained. The warrant may have been assigned, before or after its location; in either case, the paper containing the assignment may, or may not, be filed in the surveyor's office.
If the requisite information cannot be obtained in the state where the land lies, will the court say, that ordinary diligence requires the purchaser to visit the land-office at Richmond, to examine for detects prior to the date of the warrant? To do this, a citizen of Ohio must travel a distance, in going and returning, of 1200 miles. The expenses of such a journey would exceed the value of the land, in many instances; and the effect would be, to exclude from the privilege of purchasing these lands, all except a few wealthy speculators who might afford to incur the expense. I need make no remarks on the justice or wisdom of such a policy. Nor will I do more than ask the court to reflect on the consequences that must flow from establishing the doctrine of the court below; consequences, which, could they be limited to future transactions, would be less disastrous; but we know they must operate on the past, and affect titles already acquired, thereby producing an aggregate of injury and suffering that no sagacity can foresee or calculate. The case of Reeder v. Barr, 4 Ohio 446, affords the first and only instance, so far as I know, in which the doctrine of implied notice has been applied to the recitals in a patent issued by the United States for a portion of the public domain. And the decree from which we have appealed seems to affirm the doctrine of that case, and to apply it, for the first time, I believe, to the military titles derived from the laws of Virginia. During the period of fifty years that these titles have been the subject of litigation, in every form known to the law, it is impossible to doubt, that many cases must have occurred in which the principle of presumptive notice would have been asserted, if it had been supposed by the courts, or bar, that such a principle was applicable to a purchaser of these titles. The absence of any adjudication in favor of the doctrine as now applied, is an argument of some force against it.
McLEAN, Justice, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse