#### *Lyne v. Jackson, and Lyne v. Wilson.

April, 1822.

Chancery Jurisdiction — Prevention of Issuing of Patent — Fraud.†—Where a party applies to a court of chancery to prevent the issuing of a patent, or an assignment of a survey, and alleges a fraud committed by the defendant in forging an agreement between him and the complainant, the court of chancery has jurisdiction without the party's resorting to a caveat in the first instance.

Patents — Suit Pending — Effect.‡ — During the pend-ency of such a suit, no person can obtain a patent for the same land under a treasury warrant, located since the institution of the suit; but he will be regarded as a purchaser with notice.

These were appeals from the superior court of chancery for the Richmond district.

John Lyne filed his bill in the high court of _ chancery against George Jackson and William Martin,* executors of Hezekiah Davisson deceased, William Haymond and the Register of the Land Office, setting forth the following case: that John Lyne the complainant being possessed .of certain treasury warrants, entered into an agreement with Hezekiah Davisson, by which it was witnessed, “that the said John Lyne hath this day delivered the said Davisson two land warrants No. 15170 and 15171. No. 15170 is for eight thousand acres, and No. 15171 is for eight thousand, seven hundred and 1824 acres of land. The said Davisson for his part doth promise to locate and survey the said land for the said John Lyne, and to return plots of the surveys to him, the said Lyne, or to the register of the land office. As soon as patents issue, the said John - Lyne do oblige himself, his heirs, to assign to the said Davisson, his heirs &c. one half of all such patented land as shall be by him surveyed for the said Lyne, the expense of surveying and patents to be equally divided between the said Lyne and Davisson:” *which agreement was signed and sealed by both parties: that no adjustment was made between the parties in the life time of the said Hezekiah,' whereby to ascertain the part which each was to have of the lands aforesaid, and the complainant did not part with his title in common, in any manner whatsoever, except to that of three thousand acres whereon the warrant No. 15170 was in part laid; yet the said Hezekiah fraudulently wrote or caused to be written an assignment to himself of the whole of that warrant and forged the signature of the complainant thereto; and under colour of that fraud, he caused the land to be surveyed for himself: that the said Hezekiah is since dead, leaving George Jackson and William Martin his executors, who have offered the said land for sale, although no patent hath yet issued for the same. He therefore prays, that the said executors may be injoined from selling the said land and compelled to account with the complainant on the principles of the said agreement, for all warrants by him delivered to *51their testator: that William Haymond* * may be injoined from delivering the said warrant to any person, till the further order of the court; and that the register may be injoined from issuing any patent for the land aforesaid.

The injunction was awarded.

William Haymond, by his answer, says, that he believes that the assignment mentioned in the bill, was wholly written by Davisson himself: that the warrant is in his CHaymond’s) hands: that it was delivered to him by the said Davisson for the purpose of being surveyed; by virtue of which he hath caused five thousand acres to be surveyed for the said Davisson; and that he does not intend to deliver it to any person until the further order of the court.

The executors say in their answers,

that they know nothing of the alledged fraud: that they have never offered *any of the said lands for sale: that the complainant has himself been in default, 1st because they believe that their testator has borne all the expense of the locations and surveys, and the complainant has never refunded his proportion of the same, and Sndly because the complainant has not conveyed a moiety of the said lands to their testator. They therefore hope, that the complainant may be compelled to make such division and to execute conveyances accordingly, and account for his proportion of the expenses of the locations and surveys in execution of the said articles of agreement.

Upon the death of John Dyne, the suit was revived in the names of William Dyne his executor, and the said William Dyne and William Lyne, jr. his devisees; and upon the death of the latter, it w'as revived by his executors and devisees.

Depositions were taken, which clearly prove that the assignment in question was wholly written by Hezekiah Davisson, and established all the material allegations of the bill.

The same complainants afterwards filed a supplemental bill against Benjamin Wilson jr., Daniel Davisson and the Register, charging, that pending the suit against Davisson’s representatives, the said Wilson had procured a warrant for five thousand acres, which he had laid on the land in controversy, and having had a plat and certificate of survey returned to the Register’s office, will obtain a patent for the same, unless prevented by the interposition of a court of chancery: that the complainants were ignorant of this fraudulent attempt until informed of it by a letter received by the last mail: that the first survey being in the name of Hezekiah Davisson by virtue of the forged assignment aforesaid, and all the subsequent proceedings being in the name of the said Hezekiah, the complainants cannot resort to the remedy by caveat against a grant to the said Benjamin Wilson, with any hope of success. They therefore pray, that the register *of the land office may be injoined from issuing a patent to the said Benjamin, on the said plat and certificate or survey, &c._

The court granted the injunction.

The defendants Wilson and Davisson admit, that the defendant Wilson did enter and locate a warrant for 5000 acres, and the same was surveyed on the 10th of September 1815, on a certain tract of land in Harrison county, containing 4710 acres; a part of which survey is included in Lyne’s survey, assigned to Davisson: that the defendants do not admit that the said assignment was forged or unauthorized, and require proof thereof if the same should become material in this cause; they then urge several legal objections to the objects and proceedings of this suit.

The chancellor decreed, that the said suits be dismissed, the complainants having a remedy at law by caveat.

The plaintiffs appealed to this court.

Upshur and Wickham, for the appellants.

Gilmer, for the appellees.

For the appellants, it was said, that a caveat could not afford complete relief, and, a court of equity had jurisdiction, because one of the bill was to injoin the defendants from disposing of the land. Lyne’s object was moreover to obtain a conveyance of an undivided moiety. This could not be accomplished by caveat. There can be no doubt of the fraud committed by Davisson.

The counsel for the appellees contended, that the court of chancery had no jurisdiction. There are but two cases in which a court of equity has jurisdiction in a question of caveat; 1, where a new case is made which could not be introduced on a caveat; 2, where a party is prevented by fraud from obtaining a caveat: Neither of these *cases is made out. Every objection which is now made, might have been as well urged at the trial of a caveat. No discovery is sought from the defendants; the evidence is entirely aliunde; and that evidence might have been brought out with full as much effect on a caveat as in a chancery suit. As to the second ground, there is not even a surmise, that the complainants were prevented by fraud from obtaining a caveat. In short, this case comes within the spirit and letter of the cases of Johnson v. Brown,(a) and Noland v. Cromwell, (b) The case of Currie v. Martin,(c) does not apply, because here the appellant could prove his title to the warrant. A lis pendens can only exist where the parties have a title to1 the subject in controversy. The original entry in this case was so vague, that it would not give any notice to a locator of the adjacent residuum, (d)

In reply it was said, that the principle in Noland v. Cromwell, ought to be restricted to cases falling precisely within the circumstances of that case. Davisson was a mere trustee, and a court of equity ought, upon well known principles, to enforce the due execution of the trust. Fraud is another head of equitable jurisdiction, which would equally sustain the jurisdiction in this case. In addition to *52this, there was an original right to come into a court of equity, to obtain a partition; an object which could not he attained by a caveat. The caveat law does not take away an original equitable right. The case of a surety who has a summary remedy against his principal, is an illustration of this doctrine. The case of Christian v. Christian(e) is a conclusive authority in our favor. The law limiting a time within which a survey must be made was repealed by a subsequent law. As **to the survey not being conformable to the entry, this question was not before the chancellor. He decided on the point of jurisdiction only. _ The survey is consistent with the requisitions of the law.

†

See principal case cited in McClung v. Hughes, 5 Rand. 487, 489; Jackson v. McGavock, 5 Rand. 541; Frencn v. Successors of Loyal Co., 5 Leigh 663; Baker v. Briggs, 99 Va. 365, 38 S. E. Rep. 277; Beckwith v. Thompson, 18 W. Va. 124.

‡

Lis Pendens. — The principal case is cited in Osborn v. Glasscock, 39 W. Va. 760, 20 S. E. Rep. 706, as one just case on this subject.

See generally, monographic *note*on “Lis Pendens” appended to Stout v. Vause, 1 Rob. 169.

*

William Maulsby and Anne his wife, were after-wards made defendants, the said Anne being one of the executors of Hezekiah Davisson deceased.— Note in Original Edition.

*

Tiie surveyor of Harrison county.

(a)

8 Call, 259.

(b)

 4 Mnn. 155.

(c)

3 Call, 28.

(d)

1 Call, 206, Hunter v. Hall; 1 Munf. 300, Depew v. Howard. Judge Tuckeb’s opinion.

(e)

6 Munf. 534.

JUDGE BROOKE,

delivered the opinion of the court:*

The court is of opinion, that the appellants properly came into a court of chancery for the relief prayed in the original bill, against the representatives of Hezekiah Davisson, and also for _ the relief sought by' the supplemental bill against James Wilson and Daniel Davisson, and that the register of the land office was a proper party in both cases, to effectuate the relief to be decreed them. The object of the original bill was, to .prevent the issuing of a patent by the register on the survey of the lands in controversy, or an assignment thereof by the representatives of the said Davisson; and of the supplemental bill, to prevent Wilson or those who might claim under him, from getting a patent for the same land, before the controversy between the parties to the first bill, was adjusted. The decree of the chancellor dismissing both bills for want of jurisdiction is therefore reversed, and the court, proceeding to render such decree as the chancellor ought to have made, is of opinion, that the assignments of the warrant by H. Davisson to himself was not authorised by the agreement with Lyne, in the proceedings mentioned, nor had he a right to survey the land in his own name, on the entry made by virtue of that warrant. The court is further of opinion, that the appellees Wilson and Daniel Davisson are to be considered as having notice of the rights of Dyne from the filing of the original bill, and probably on the facts in the case, had express notice thereof: that these rights are to be affected by that notice, and must yield to the claims of the appellants. It is therefore decreed and ordered, that upon the appellants *producing ter the register of the land office a copy of the survey made on the 14th day of August 1785, in the name of the said Davisson, he make out or cause to be executed to them a patent in due form of law, for the land comprehended within the lines of the said survey, to be held by the said appellants, subject to the just claims of the representatives of the said Davisson to any part thereof under the said contract; and liberty is reserved to them to resort to the court of chancery for a full and final settlement of all accounts and claims under the said contract. And it is further decreed and ordered, that the appellees Wilson and Daniel Davisson and the register, be perpetually injoined from taking out or issuing any patent on the survey in the name of the said Wilson, dated on the 10th day of September, 1815.

*

 Judge Roane absent from continued indisposition.