#### *Allen and Others v. Smith.

May, 1829.

(Absent Coadter and Gbeen, J.)

Pretensed Titles — Equitable Rights — Statute.*—The statute against buying and selling pretensed titles, does not prohibit the sale and purchase of equitable rights in land.

Tax Sales — What Purchasers Must Show — Deed— Effect.† — In a sale of lands by a collector of taxes imposed by the act of Congress of 1798, the collector must comply strictly with the requisitions of the act, in his proceedings preparatory to the sale; it is incumbent on a purchaser claiming under such sale, to prove the regularity thereof; the marshal’s deed to him is not even prima facie evidence of the regularity of the collector’s proceedings; nor shall the regularity thereof be presumed from twenty-two years quiet possession under the sale, or from any time short of that from which any other link in the' chain of title to real estate may be presumed.

Equity Practice — Want of Proper Parties — Leave to Amend.‡ — A court of equity ought not to dismiss a bill absolutely, for want of proper parties, the plaintiff shewing enough to give colour to his claim for relief against the parties not before the court: in such case, the chancellor is right in giving plaintiff leave to amend, and make the proper parties.

Sale of Land — Specific Execution — Acknowledgment by Heir That Vendee Entitled to Land — Effect.—A vendee claiming specific execution of a contract for sale of lands, proves, that there was a contract in writing, but does not prove the terms 'of it, the instrumemt being alleged to be lost: the heir and devisee of the vendor, by deed, which does not pass the title, acknowledges that the vendee is entitled to the land: Heed, that this, in a contest between the vendee, and third persons, is enough to shew his right to specific execution.

The appellee exhibited his bill against the appellants, in the superior court of chancery, of Clarksburg, in November 1824, setting forth, that a tract of 100,000 acres of land in Randolph county was granted to general Daniel Morgan assignee of Joseph Tidball, by patent dated March 9th 1796. Morgan sold this land to Jesse Sims, received the purchase money, and gave him a bond binding himself to make a conveyance ; but this bond had been lost or mislaid. After this, on the 27th August 1800, Sims, being in .embarrassed circumstances, conveyed this land, among other property, to John and Peter Wise, trustees, for the benefit of his creditors, with a provision, that any of his creditors might elect to take any parcel of the trust subject, at the valuation contained in a schedule attached to the deed, in satisfaction of their claims. This deed conveyed the trust subject to the trustees and their heirs, but it only authorised *the trustees personally to act in disposing of the subject ; and it made provision only for Sims’s debts contracted for his own use and benefit. Sims became insolvent, and not long after died insolvent. The appellee was a creditor of Sims, and elected to take this tract of 100,000 acres of land in Randolph, in satisfaction of the debt due him ; and, thereupon, the heirs of John Wise, the surviving trustee, conveyed the same to him, by deed dated September 25th 1821. That Morgan, who died in 1802, by his will gave all the residuum of his estate to his daughter, Mrs. Neville wife of Pressley Neville of the state of Ohio ; and she, after her husband’s death, by deed dated November 4th 1823, conveyed the legal estate of the land in Randolph, to the appellee, and revoked as far as she could, a previous conveyance of her right in the land, made by her husband and herself, in 1818, to the agents of Peter Allen and others. The appellee found Peter Allen and others in possession of the land, claiming title, 1. Under the conveyance of Neville and wife ; and 2. Under a sale of the land to them, on the 27th December 1802, by the collector of the U. States’ direct tax, for the amount of tax due thereon, and a conveyance of the marshal of the district of Virginia, in consequence of that sale, dated December 11th 1805. As to the conveyance of Neville and wife to the ag-ents of Allen and others, it was accompanied by an agreement, on their part, executed at the same time with the conveyance, that if and when they should use the deed of Neville and wife, to defend their title to the land, they should *87pay Neville and wife, a consideration equivalent to the advantage the deed should thus give them, to be fixed by arbitrators ; and if they should never make such use of the deed, they should re-convey to Neville and wife : and Mrs. Neville, being informed that her father had sold the land to Sims, gave notice to Allen and others, that she considered the conveyance made by her husband and her to them, in 1818, null and void ; and that she had therefore, so far as it lay in her power, conveyed the legal title to the plaintiff claiming ^the equitable title under Sims. And, as the sale of the lands for IT. States’ taxes, it was irregular, illegal and void ; and, moreover, the land was sold as the property of Tidball, the original locator, instead of Morgan, the grantee, or his heirs. The bill made Peter Allen and others, tenants in possession of the land, and their agents, who had obtained the conveyance from Mr. Neville, and Mrs. Neville, defendants ; and prayed that the defendants might be decreed to release the legal title of the land to the plaintiff, and account for rents and profits ; and general relief.

Peter Allen and others, the tenants in possession, answered, that in 1795 several persons residing in New England formed themselves into a company for the purchase and settlement of lands in Randolph county, and obtained a grant of 100,000 acres there, by patent dated November 17th 1796, and under this New England company, the defendants claimed. In 1798, one Peebles, himself a member of the company, and agent for the rest, entered into possession of the 100,000 acre tract, and began to clear and build upon it; others shortly after followed ; and the New England company, and others claiming under them, have continued to hold the possession ever since, making settlements and improvements, paying all public dues, and defending the lands against conflicting claims; and so incurring great expense. The New England company soon discovered, that their survey of 100,000 acres, interfered with the survey of 100,000 acres, then called Tidball’s, it not being known, that this tract had been granted to Morgan. The tract included in Tidball’s survey and Morgan’s patent, was assessed for the direct tax of the U. States, as the property of Tidball; the tax was not paid; the land was advertised for sale by the collector ; and the New England company, finding a part of the land, which they claimed and had settled, thus offered for sale as Tidball’s, bought 95,000 acres of his survey, paid the price, and on the 11th December 1805, received from the marshal a conveyance thereof, in pursuance of the laws of the O. States. That by the laws *of the IT. States, the selling of the land as Tidball’s, when it was not his property in fact, did not at all affect the regularity of the sale. That the New England company then brought a suit in chancery, to jjerpetuate the evidence of the regularity of the collector’s sale; pending which they heard, for the first time, that Tidball’s survey had been assigned, and the land therein included, granted to Morgan; upon which, determined if possible to purchase peace, they procured a conveyance from Neville and wife, to whom the title of Morgan had, as they were informed, been devised : and thinking their title now secure, they ceased to prosecute their suit to perpetuate the evidence of the regularity of the collector’s sale. Of Sims’s claim, they had, at the time, no knowledge. They relied on the lapse of time, as a bar to inquiry into the regularity of the collector’s sale for taxes: they called in question the fairness of Sims’s deed of trust, under which the plaintiff claimed: they called for proof, that the plaintiff was a creditor of Sims: they denied his right, if a creditor, under Sims’s deed of trust, to elect to take this land at a valuation, after the lapse of twenty-one years : they denied the right of Sims, or of the plaintiff claiming under him, to a specific execution of Morgan’s alleged contract for the sale of the land to Sims, no written contract between Morgan and Sims being produced, and no evidence of the payment of the purchase money by Sims to Morgan : they relied on the act of limitations as a bar to the assertion of such an equity as that set up in the bill: and they denied the efficacy of Mrs. Neville’s conveyance of the legal title to the plaintiff.

As against Mrs. Neville, the bill was regularly taken pro confesso.

The plaintiff exhibited the patent to general Morgan of March 9, 1796 ; a receipt of general Morgan to John B. Armistead, dated January 5, 1797, for 18,000 dollars in Morris and Nicholson’s notes, in part payment of the price of the 100,000 acres of land in Randolph ; Sims’s deed of trust to John and Peter Wise, trustees, for the benefit of his ^creditors, of August 27, 1800, and the schedule therein referred to, containing the valuation of the trust subject; the deed from the heirs of John Wise, the surviving trustee, to the plaintiff, of September 25,1821 ; general Morgan’s will proved in 1802, whereby his daughter Mrs. Neville is made his residuary devisee and legatee ; Mrs. Neville’s deed to the plaintiff, of November 4, 1823 ; the agreement between the agents of the New England company and Presley Neville and wife, dated March 17,1818, which was made contemporarily with the conveyance of the land by the latter to the former ; and a written notice from Mrs. Neville to the agents of the New England company, dated November 4, 1823, and duly served on them, that she considered the conveyance made in 1818, by her husband and her to them, null and void, and that she had conveyed the legal tille to the plaintiff, who claimed the equitable title under Sims, to whom general Morgan had sold the land in 1796 or 7. The substance of these documents is set forth in the above state of the allegations of the bill.

The defendants exhibited the patent to the New England company of November 17, 1796, granting them 100,000 acres of land in Randolph: The deed of the marshal of the district of Virginia to the New England company, of December 11, 1805, which recites the acts of Congress concerning the direct tax, the assessment of the tax on the land claimed by the plaintiff, as the property of Tidball, the proceedings of the collector and his sale of the land, all stated to be in strict pursuance of the acts of congress, the purchase of 95,000 acres thereof at that sale by the New England company, the expiration of the time allowed the owner for redemption, and the payment of the purchase money, by the pur*88chasers to the collector; and conveys the 95,000 acres to them : And the receipt of the collector of the U. States, dated December 30, 1802, for 54 dollars 24 cents, in full of the purchase money of this land, paid by the New England company. But the defendants did not exhibit the conveyance made by h(e-ville and wife to their agents in 1818.

*It appeared, that Sims became in- - solvent, August 30, 1800.

The plaintiff filed the depositions, 1. Of John B. Armistead ; who deposed, that he, as the agent of general Morgan, sold the tract of 100,000 acres of land in'Randolph, to Sims : the purchase money was to be paid in Morris and Nicholson’s notes ; Sims paid him 18,000 dollars in such notes, and he paid it over to general M. who thereupon gave the receipt of J anuary 5,1797, and executed a bond binding himself to convey the land to Sims, which he put, with the patent, into the deponent’s hands to deliver to Sims : he believed the balance of the purchase money was paid by S. to general M. for general M. was in the habit of conversing very freely with the deponent about his affairs, and of complaining of his debtors if they failed to make due payment; and he never complained that S. owed him anything. 2. John Summerton, general M’s clerk ; whose deposition was to the same effect as Armistead’s. 3. Edmund J. Dee ; who deposed, that he was retained to prosecute a suit on a bond, assigned by Sims to the plaintiff Smith, for about 17,500 dollars, against the obligor ; the money was not recovered ; and thus Smith became the creditor of Sims for the amount, and was so at the time when Sims executed his deed of trust for the benefit of his creditors. This deposition was the only evidence in the cause, shewing that Smith was a creditor of Sims. ! i : 1 :

The defendants, on their part, filed sundry depositions, proving, that in 1798, the New England company laid off 20,000 acres of the land granted to them, in lots : in November 1799, they and persons claiming under them commenced clearing, improving, and building upon it: in 1802, the company to perfect their title, purchased at the collector’s sale for U. States’ taxes, the lands included in Tidball’s survey, intending to take possession of all not claimed under prior grants, and have ever since claimed the title and the possession under that purchase, as well as under their own patent.

On the hearing of the cause, chancellor Tucker declared, in substance:

*•' That it was important to decide, whether either party had the legal advantage ?

“ That the institution of this suit by Smith, excluded the idea that he had the legal title, since if he had, he should have exhibited his claim in another forum : and, in fact, Mrs. Neville’s deed to him, being confessedly subsequent and actually referring to a prior deed to the defendants, the legal title could not have passed to him by her deed; and there was no other way, in which it could be pretended that he had the legal title.

“ That, as to the defendants, they claimed, first, under the New England company’s patents.; but that being overreached by Morgan’s, they rested their pretensions to the legal title upon Mr. and Mrs. Neville’s deed, and upon their purchase under the sale for the U. States’ direct tax. To their title under that sale, it was objected, that the sale was made in the name of Tidball, though Morgan’s patent on Tidball’s survey, had issued several years before such sale: and such objection would prevail, without more saying, if the act of congress had not author- - ized the sale of the land, in the name of a person not the owner. Bioren’s Daws U. S. ! vol. III., ch. 272, § 5, p. 459. Still, the title i claimed under that sale, could not prevail, : unless the requisitions of the law (Id. ch. 92, § 11, p. 103), were proved to have been complied with,- or unless such compliance was 1 to be presumed (as was contended) in favour of possession after such a length of time. : No such proof was offered. And such a presumption ought not to be raised, to defeat a legal title (Morgan’s) upon a mere possession of twenty-two years, counting from the date of the sale to the date of the suit: it should be more cautiously admitted, in a case, where a party’s rights have been sold in the name of another, and where, from the nature of the requisition of the law, the presumption of compliance with them might so easily be fortified, by the evidence of one at least of the many numbers of the four gazettes, in which the notification required by law, must have appeared. The requisition of all such ^statutes must be strictly pursued ; and no purchaser is blameless, who buys without seeing that they have been so, or who has. failed to preserve so essential a muniment of his title. The defendants themselves tacitly admitted the insufficiency of their title under the collector’s sale, when they fortified it by a release or conveyance from Morgan’s devisee; and thus afforded decisive evidence against the presumption on which they would rely, as late as 1818, about sixteen years after the sale. Therefore, the collector’s sale and the marshal’s deed did not convey the legal title to them. Nor did the deed of Neville and wife place them in a better situation. If that deed was executed by Mrs. Neville, in whom the title was, (which was left in doubt, as the deed was not filed) yet it was not such a deed, as would give to the defendants, the advantage of purchasers of the legal title without notice of a precedent equity ; because it was expressly stipulated, that when the legal use should be made of the deed, the value of the transfer should be ascertained and paid to Neville and wife, and if no use should be made of it, the company should re-convey to Neville and wife ; whence it is not only obvious, that there was no payment of any purchase money, (which is necessary to make a complete purchaser without notice, who will be protected,) but there was no transfer which the New England company may not at any time re-transfer. Such a transfer could not be forced within the influence of those principles, which govern the case of a purchaser without notice. Under the plaintiff’s contract with Mrs. Neville, he would have title to all her interest in the contract with the company : for, if the company should pay Neville any thing, the plaintiff would have a right to receive it, both as claiming through Sims under Morgan, and under Mrs. Ne-ville’s own deed to him. The company, by *89their contract with Neville, were to pay Neville in proportion to the advantage to be gained by the transfer; and should they succeed upon the strength of this title of Neville’s, the advantage gained must be measured by the value of the land: *if they should succeed against the plaintiff upon Neville’s title, they must pay Neville, or the plaintiff, her assignee, for the land. And thus it was obvious, that Neville’s deed to the company could not serve as any protection to them.

“ That, as the plaintiff claimed an equitable title under Morgan, and as the defendants could only claim under him with any prospect of success, this was, in effect, a contest between equities under Morgan or his heirs ; and as the plaintiff’s equity was prior to the defendants’, it must prevail, unless it was inferior.

“ That the defendants’ equity was, 1st, that arising from payment of taxes and from improvements ; but this created an equitable charge, not an equitable title: 2dly, an equity arising from their contract with Ne-ville ; but that was an executory contract, for which no consideration had been paid.

“ That the plaintiff, however, must succeed by the strength of his own equity, not merely by the weakness of his adversary’s. The equity of Sims against Morgan, was sufficiently prov ed by the depositions, and Morgan’s receipt, filed in the cause ; and though it was not shewn, what he was to pay, or what he had paid, the conveyance of Mrs. Neville, the heir and owner of the estate, was the best evidence, that nothing was due, and concluded all inquiry on the subject. The validity of Sims’s deed of trust could not be a matter of inquiry here, where no creditors of Sims were parties : as between him and the trustees claiming under him, it was valid. Though the proceedings of the plaintiff had been dilatory, in claiming under Sims’s deed of trust, yet the evidence, that he was a creditor of Sims, sufficiently appeared to entertain him here, as standing in Sims’s shoes, claiming the legal title derived from Morgan, who had sold to Sims.

“ That the equity of Sims against Morgan’s heirs, was better than that of the defendants, and must prevail over them, because it was proved, that he had paid part of the purchase money, and was admitted by the heir, against her own interest in every respect, to have paid the whole; ^whereas the defendants have as yet paid nothing, and by losing their contract with Neville would only be replaced in statu quo.

“But that although the plaintiff be permitted to assert this equity to preserve it, yet his case was too defective to entitle him to a final decree, at that time. A conveyance from the heirs of the trustees, on whom indeed the title but not the confidence descended, ought not to be held sufficient. Sims’s heirs should be made parties in the cause, in order to a final decree.

“ That the New England company having paid the taxes on the land in dispute, to the collectors of the 0. States, were entitled to a lien on the lands for the amount, with interest thereon from the date of such payment, and were in like manner entitled to a lien on the said lands for all taxes paid since ; and, moreover, having settled on the lands many years ago, and made valuable improvements thereon, under the faith, first of their patent, and afterwards of the sale for taxes, and on the supposition, that Tidball’s was the best right, and that they had acquired it ; and Morgan, and those claiming under him, having quietly looked on ; the defendants were entitled to a full and liberal allowance for permanent improvements, so far as they exceeded the rents and profits.”

Therefore, the chancellor gave the plaintiff leave to amend his bill, by making the heirs of Sims party defendants : and he appointed a commissioner to ascertain and state the amount of taxes paid by the defendants to the 0. States, and the taxes paid by them to the state of Virginia, on account of the land in the bill mentioned, and also to state and report the value of the permanent improvements made by the defendants on the land, and an account of the rents and profits thereof, during the time that they or those claiming under them have had the same in possession ; and remanded the cause to the rules for further proceedings to be had therein as to the heirs of Sims, and continued it as to the other defendants.

*Brom this order, the defendants appealed to this court.

The cause was argued here, by Johnson for the appellants,

and Beigh for the appellee.

I. Johnson took several objections to the appellee’s claim to relief, upon his own case, as stated in the bill, and the proofs adduced in support of it.

1. He insisted, that Smith had shewn no right in himself to assert Sims’s equitable title under Morgan to the land in question. The only evidence adduced to shew that he was a creditor of Sims, was the deposition of Bee ; and that deposition shewed, that the evidence of the debt consisted in the record of a proceeding and judgment in a court of law ; it was indispensible to produce the record : no parol evidence of its contents ought to have been heard. If he was a creditor of Sims at all, he was not a creditor entitled to claim the benefit of Sims’s deed of trust of August 1800 ; for the deed provided only for Sims’s own proper debts ; but his debt to the plaintiff, arose out of the assignment of the bond of another person to him ; and the assignor of a bond is, in reality, only a surety for the obligor, bound to pay the debt to the assignee, if he cannot recover it of the obligor. And if he was a creditor, whose claim was provided for by the deed of trust, he was bound, if he claimed the benefit of that deed, to have elected to take the trust subject, at the valuation, within some reasonable time : he ought not to be allowed to wait, as he did, twenty-one years, and then elect to take, at a valuation made in 1800, a parcel of land, the value of which might now, in alt probability, be quadrupled. Had this deed of trust been a mortgage of this land, for the security of this very debt to Smith, after the lapse of twenty years, payment of the debt would have been presumed, and his bill to foreclose would have been dismissed. He went into equity to disturb an adverse claim in the highest degree meritorious ; a claim asserted under a patent, to lands, which the grantees had taken early possession of, defended against conflicting claims, settled, im*90proved, *and preserved from forfeiture by the payment of public dues : and there was no such merits in Smith’s claim, as should have induced the chancellor to shew it any favour or indulgence. He presented his cause for a hearing; and, not having shewn and proved a case entitling him to a decree, his bill should have been dismissed.

Heigh denied, that thése objections had any good foundation: but supposing they had, the questions they presented, were questions between Smith and the heirs of Sims; questions, in which the New England company had no interest. The chancellor had not decided them : in requiring that Sims’s heirs should be made parties, he left them open to be litigated by them, and to be considered by the court, after they should be heard. Enough appeared to shew, that Smith’s claim, as against them, had very strong colour of■ justice, to say the least; and it would have been unprecedented and unjust, to dismiss his bill absolutely, merely because it had not made all the proper parties. There could be nothing meritorious in the case of either party, distinct from the law and equity on which his claim was founded.

2. Johnson objected, that Smith had shown no case, entitling himself, claiming under Sims, to ask a specific execution of Morgan’s contract to sell the land to Sims. He had not proved, that the title bond, given by Morgan to Sims, was lost or mislaid; and without proof of that, the court ought not to listen to parol evidence of its contents. The parol evidence only proved, that there was a contract; it did not prove what were the terms of it, or that Sims so complied with its terms, as to have entitled him to demand a specific execution of Morgan. And Sims had never had possession under the contract.

It was answered, that this was a question between Smith claiming under Sims, and Morgan’s heir or devisee. Mrs. Neville was the residuary devisee and legatee of Morgan ; entitled to the land, if Morgan was not bound to convey it; entitled to any balance of the purchase money, which Sims might have left unpaid. She admittedherfather’s sale to *Sims, and that he had entitled himself, and those claiming under him, to a conveyance.

3. It was urged, as an objection against giving any relief in the case, in whatever shape it might be presented, and however it might be sustained by proofs, that, at the time Morgan contracted to sell to Sims, or at least when Sims conveyed the land in question to trustees for the benefit of his creditors, the New England company, and those claiming under them, were in actual possession, claiming adverse title under their patents ; and, at the time the heirs of the surviving trustee conveyed the land to. •Smith, and when Mrs. Neville conveyed her legal estate to him, the company were in possession, claiming under their patent, under the marshal’s deed, and under the deed of Neville and wife. A-ndthus, Smith’s claim stood condemned by the statute against conveying or taking pretensed titles ; 1 Rev. Code, ch. 103.

The answer was, that Morgan’s sale to Sims was made before the New England company had taken possession ; and, for the rest, the statute inhibits the purchase of pretended legal estate, not of equitable interests in lands.

II. Johnson made two objections to the details of the chancellor’s order : 1. That in requiring new parties, he had not required all the proper parties; for, not only Sims’s heirs but his personal representatives, and Morgan’s personal representative too, as well as Mrs. Neville his devisee, were proper and necessary parties : 2. That the decree was premature in directing an account of rents' and profits, at the suit of Smith, while it was yet uncertain, whether he had any just right to the land.

In answer to the first objection, Heigh denied, that Sims’s personal representative could be a necessary party in any possible state of the case: And, as to Morgan’s personal representative, if it were proper to make him a party, it could be so only and merely for form sake ; for it was apparent, that Mrs. Neville, the residuary legatee as well as devisee of Morgan, was entitled not only to the legal estate *in the land, but to any balance of the purchase money, which might possibly have been left unpaid by Sims to her father ; she was a party; and far from setting up any such claim, she had disclaimed it. As to the account directed, it was hard to say, to which of the parties the decree, in that particular, was most beneficial : it was an account of permanent improvements made, taxes paid, and expenses incurred, by the appellants, as well as of rents and profits; and it was probably more convenient to them, than to the appellee, thus to expedite the accounts.

III. Johnson strenuously contended, that the New England company had acquired a good title under their purchase at the collector’s sale for U. States’ taxes, and the marshal’s deed of December 1805. That which would strike one as the principal objection to the regularity of the sale, and to the efficacy of the marshal’s deed to pass the title, namely, that the land was assessed for the taxes, and sold, as the property of Tidball, was cured by the express provision of the act of congress. He admitted, that it had been settled by the decisions both of this court and of the supreme court of the U. States, that in sales of laud by a collector for taxes, he acts under a naked power, and must strictly comply with all the requisitions of the law, as to all the steps preceding the sale ; that a purchaser claiming under such a sale, is bound to preserve and adduce evidence of the exact regularity of it; and that the marshal’s conveyance to him, is not even prima facie evidence, that the provisions of the law have been complied with. Christy v. Minor, 4 Munf. 431; Nalle v. Fenwick, 4 Rand. 585 ; Stead v. Course, 4 Cranch, 403 ; Parker v. Rule, 9 Cranch, 64 ; Williams v. Peyton, 4 Wheat. 77. But, he said, though the purchaser be bound to prove the collector’s exact compliance with the provisions of the law, in the steps preparatory to the sale, he could not justly be held to strict proof at any distance of time : and this was admitted in Williams v. Peyton : for C. J. Marshall, after referring to the provisions of the act of congress prescribing the duties *of the collector, said, “ If these duties be examined, *91they will be found to be susceptible of complete proof on the part of the officer, and consequently on the part of the purchaser, who ought to preserve the evidence of them, at least for a reasonable time.” The purchaser at such a sale, ought not to he held to preserve fugitive evidence of acts in pais, longer than twenty years : after such a lapse of time, the regularity of the collector’s proceedings ought to be presumed. Such presumption was allowed to supply the place of direct proof, in a stronger case. Abraham v. Matthews, 6 Munf. 159. There, a slave claimed his freedom, on the ground that he had been imported into Virginia contrary to law : whether he was illegally imported or no, depended on the question of fact, whether the master had, within ten days after his removal to the state, taken a particular oath, prescribed by law to justify the holding him as a slave here : and it was held, that the taking of the oath would he presumed from the lapse of twenty years’ possession without claim of freedom on the part of the slave.

Leigh remarked, that the appellants had supplied evidence enough to rebut the presumption now insisted on. I<'or, in the first place, they had alleged and proved, that they commenced the settling and improving the lands as early as 1799 ; and it was hardly possible, that there was not personal property enough on the lands, out of which 54 dollars (the amount of tax) could have been made by distress; and if there was, the collector’s sale of the lands for the taxes was contrary to law. 3 Bioren’s Laws U. S. ch. 92, § 10,11, p. 102, 3. And, in the next place, the appellants had deemed it necessary to procure a conveyance of the legal title from Neville and wife, as late as 1818, to fortify the title they claimed under the marshal’s deed. But there was no ground on which the court should allow any such presumption. The collector’s sale was made December 27,1802; the term for redemption allowed by law, two years (Id. § 13), expired December 27, 1804 ; the marshal’s deed was made in December 1805. This *suit was brought in November 1824. Twenty years had not elapsed from the time when the title under the sale for taxes accrued. And if they had, the court would hardly indulge a presumption, on the mere strength of which a purchase of 95,000 acres of land for 54 dollars, was to be upheld. The expression of the chief justice, in Williams v. Peyton, that the purchaser is bound to preserve the evidence of the regularity of the collector’s proceedings preparatory to his sale, “ at least for a reasonable time,” must be taken with due regard to the nature of the facts of which the evidence is required to be preserved : and the chief justice, in the sequel of his opinion, said, that the purchaser ought to preserve the gazettes (in which the collector’s advertisements were published); and that “ it was imposing no greater hardship on him to require it, than it would be to require him to prove, that a power of attorney, in a casein which his deed had been executed by an attorney, was really given by the principal.” Surely, the execution of a power ol attorney, in such a case, could not he presumed from a possession of twenty years, or any time short of the period prescribed by the act of limitations in regard to land titles.

*

Pretensed Titles — Statute.—For the proposition that, the statute against buying and selling pretensed titles, does not prohibit the sale and purchase of *equitable rights*in lands, the principal case is cited in *foot-note*to Tabb v. Baird, 3 Call 475; Ruffners v. Lewis, 7 Leigh 740; Waggener v. Dyer, 11 Leigh 392, and note; Steed v. Baker, 13 Gratt. 387; Middleton v. Arnolds. 13 Gratt. 491, and *note.*

†

Tax Sales — Purchaser—What Clust Show. — On this question the principal case is cited in Jesse v. Preston, 5 Gratt. 130. and *note:*Flanagan v. Grimmet, 10 Gratt. 426 (see note); Boon v. Simmons, 88 Va. 265, 13 S. E. Eep. 439; Hutchings v. Gilmer, 1 Va. Dec. 503; Dequasie v. Harris, 16 W. Va. 353; Hays v. Heatherly, 36 W. Va. 628, 15 S. E. Rep. 229.

‡

Equity Practice — Want of Proper Parties. — For the proposition that, a court of equity ought not to dismiss a bill absolutely, for want of proper parties, where the plaintiff shows enough to give color to liis claim for relief against the parties not before the court, but leave should be given to amend, the principal case is cited in Kincheloe v. Kincheloe, 11 Leigh 400*(see note).*

Same — Order for Account. — The principal case is, cited in *foot-note*to Watkins v. Young, 31 Gratt. 84; Bank v. Parsons, 42 W. Va. 144, 24 S. E. Rep. 556.

CARR, J.

Many objections to the decree, were urged in the argument.

The first was, that Smith did not shew himself possessed of the equitable claim of Sims upon Morgan : because, 1. he had not proved himself a creditor of Sims, since the evidence of Lee was secondary, speaking of a suit on a hond assigned by Sims to Smith, of which suit there must be a record, which being the highest evidence, was alone admissible : but, 2. if Smith had been a creditor in 1800, this debt must be presumed to have been paid before 1821, when he elected to take the land : or if not, 3. after such a lapse of time, and especially the death of the trustees, he had no righ to take the land, nor had the heirs of the surviving trustee any power to make a deed to him, the confidence *as to that being personal: and 4. their deed was utterly ineffectual, both because there was adverse possession, and it was a contract for a pretensed title. It was denied on the other side, that there was weight in these objections : but the answer to them mainly relied on, was, that they were points, not one of which had been decided by the chancellor ; that, when he directed the heirs of Sims to be made parties, he meant to give them an opportunity to contest the claim against their ancestor, on every ground which might avail them, and of course, could not intend to forestall them, by deciding any point of their case in their absence ; that when they should appear and answer, if they admitted the claim of the plaintiff, there would need no further proof; if they contested it, the whole case, as to those parties, would he open ; new evidence might be taken on either side ; and whether it was or not, the chancellor would decide upon the claim of Smith against Sims, as a part of the case untouched before. I think there is great force in these remarks, and that they dispose, for the present, of these objections, unless it he true, that the chancellor instead of directing new parties, ought at once, to have dismissed the bill, either for defect of proof of the claim against Sims ; of, because that claim was attempted to be satisfied, by taking a pretensed title, which the court was called on to assist.

As to the first, the language of the chancellor is, “ that although the plaintiff may be permitted to assert this equity, to preserve it, yet his case was too defective, to entitle him to a final decree at that time.” I think the distinction here taken a very sound one. There may not be proof sufficient to establish a claim, nor exactly of that kind which is the best evidence the case will admit of ; yet it may be such as to create a strong belief, and also to shew, that better and full evidence can be produced. In the case before us, the plaintiff had the deed of the heirs of the trustee, stating that he was a creditor of Sims ; and he had the evidence of Lee, stating that he was a creditor ; but Lee adds, that he *had prosecuted a suit to judgment, on a bond assigned by Sims to Smith. The chancellor could not properly decide against the heirs of Sims, when they were not before him. But was not here enough to prevent him from dismissing the bill at once? Did not this proof go pretty strongly to shew a debt from Sims to Smith, *92at the same time, that it pointed to a source (the record) from whence indubitable evidence could be obtained? And was it not likely to be most conducive to equity, to call those before the court, who could properly discuss this matter, and at the same time, give opportunity to the plaintiff to produce this record-evidence, if the heirs of Sims should dispute his claim? I think so. It was an equity, with which the defendants had no connection.

Neither can I see, that the taking this deed from the heirs of Sims’s trustee, was a transaction within the letter or the spirit of the statute against buying and selling pretensed titles. That law, as I have always understood it, means the buying and selling legal, not equitable titles. In Wood v. Griffith, 1 Swanst. 43, lord Eldon says, “It is extremely clear, that an equitable interest, under a contract of purchase, may be the subject of sale and after some further remarks, he adds, “If I were to suffer this doctrine to be shaken, by any reference to the law of champerty or maintenance, I should violate the established habits of this court.” In our case, Sims’s original purchase from Morgan, was in 1797, before there was any adverse possession : but he did not get the legal title: he conveyed this equity in trust to pay his debts ; and the plaintiff, a creditor, takes the deed from the heirs of the trustee, in order to carry into effect, the deed of his debtor, and obtain payment of his debt. Whether this effort be successful or not, there was surely nothing criminal in it.

The counsel for the appellants also objected, that, though there was no doubt of a contract for the land between'Sims and Morgan, yet there is not such evidence of it, as equity will deem sufficient on a bill for specific execution: for Sims *never had possession of the land; neither is there any such written evidence of the contract, as discloses the terms ; the contents of the title bond are not proved ; and the receipt, though it acknowledges 18,000 dollars paid in Morris and Nicholson’s notes, in part payment for 100,000 acres of land in Randolph, does not give us the particulars of the contract: that thus we do not know what was the price to be given : that the depositions of Armistead and Summerton merely state their belief, that all the purchase money was paid, which is not full proof, and if it were, payment is not such part performance, as will authorise a decree for specific execution. There is no doubt with me, that Armistead sold this land for Morgan to Sims ; and I think we may also fairly conclude from the evidence, that full payment has been made. Armistead swears, “that Morgan put into his possession, a title bond for a conveyance of the land to Sims, and the patent, both to be delivered by him to Sims, in virtue of that contract.” What he did with them, he does not say. It is probable, that he delivered them to Sims ; and the subsequent insolvency of Sims, together with his death, and that of both his trustees, and the lapse of so many years, may well support the assertion in the bill, that the bond is lost. I do not say, that these circumstances are such, as clearly to authorise equity to decree a specific execution, if the heirs of Morgan were resisting it: but I do say, confidently, that, when the residuary devisee of Morgan, (Mrs. Neville) having the sole right under him, releases all that right to the plaintiff as representing Sims, and thereby acknowledges the contract, and satisfaction for it, equity will feel itself fully authorised, so far as Morgan’s right is concerned, to decree in favour of the plaintiff. It was said, that this deed of Mrs. Neville could have no operation whatever, both because she had before passed the legal right to the defendants, and because of their adversary possession. Whether Mrs. Ne-ville, who was then a feme covert, was privily examined in the execution of the deed to the defendants, we do not know, as the defendants, though they refer *to this deed in their answer, have not filed it. But, however this may be, and however inoperative the deed of Mrs. Neville may be in the way of conveying title to the plaintiff, it would certainly be conclusive against her, to shew that she admitted the contract between Morgan and Sims, and was willing to do all she could in execution of it.

It was also objected, that the chancellor erred in deciding that the marshal’s deed was not effectual to pass the title. The counsel admitted the general rule, that he who claims under one of these sales, founded on a forfeiture, must shew that the law had been strictly pursued ; and that such titles, where (as in this case) 100,000 acres of land are bought for 54 dollars (the mere tax due on it) ought not to be encouraged : but yet he insisted, that the same presumptions from length of time, which govern other cases, would apply here also ; and that, the defendants having been in possession under the sale for twenty years, it ought to be presumed, that every pre-requisite of the law had been complied with. It has been decided, in several cases, both in the federal court and in this, that an officer, who acts under a naked power, especially if by the exercise of that power the rights and property of others may be lost, must pursue his authority to the very letter, and that those claiming under his acts must shew this, as nothing will be presumed. In Williams v. Peyton,the deed of the marshal made under this very act of congress, was decided not even to furnish prima facie evidence, that the advertisements &c. required by the law, had been set up in the country, and published in the papers ; and from the manner in which the question is treated there, it seems clear to me, that the court would have permitted no other presumption, than such as would be received as to any other link in the chain of title to real property. The chief justice, who delivered the opinion, says, “It is a general principle, that the party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends on an act in pais, the party claiming under that deed is as much bound to prove the performanee *of the act, as he would be bound to prove any matter of record on which its validity might depend. It forms a part of his title; it is a link in the chain which is essential to its continuity, and which it is incumbent on him to preserve. These facts should be examined by him before he becomes a purchaser, and the evidence of them should be preserved ás a necessary muniment of title.” He then *93goes on to shew, that these general principles apply, with peculiar force, to the marshal’s proceeding to sell lands under the law of congress for non-payment of taxes ; where the officer’s duties are clearly pointed out, and his compliance with them easy of proof, and where, for the opposite party to prove that they had not been complied with, would be always difficult, often impossible. Now, if the validity of the marshal’s deed depends on these acts in pais (the publishing advertisements of the sale in the gazette, and setting them up in public places) ; if the party claiming under such deed, is as much bound to prove their performance, as he would be to prove any matter of record, on which the validity of the deed might depend : how can it be supposed, that he would be permitted to supply evidence of these acts, by presumption from time, sooner than he might supply the want of the deed itself, by such evidence ? The very nature of such titles, it seems to me, ought to warn the purchasers’, to see that all the prerequisites of the law are complied with ad unguem. They buy often large and valuable tracts of land for a mere trifle ; and they ought always to expect, that the owner will attempt to recover them. This is notice, intrinsic in the transaction, that they must be ready for defence ; and they ought, at once, to collect the proper evidences of compliance with the law ; and these documents, being written, can be just as easily preserved as their deed. My opinion, then, is, that the time which has elapsed, did not release the appellants from the necessity of strict proof ; and that, failing altogether in producing it, the chancellor was right in saying, that the marshal’s deed did not help their case at all.

*He was equally correct, I think, in saying that the deed from Mr. and Mrs. Neville (even if she was privily examined), did not give the appellants the position of purchasers without notice, against the plaintiff ; because nothing was paid by them, and it was in their option, at any time, to re-convey.

With respect to the order of account made by the chancellor, I think it neither incorrect nor premature. Its object was to’ascertain, for the benefit of the defendants, principally, the amount of taxes they have paid, and the value of their improvements, as well as the rents and profits. It cannot, therefore, be said to disturb them ; for it is not probable, that a step will be taken in it, unless at their instance ; and if the plaintiff should unnecessarily be the means of incurring costs in the case, the chancellor will have it in his power to make him pay all such costs, hovfever he may decide the cause.

Upon every ground, therefore, I am for affirming the decree.

CABE)LL, J.

I concur in the opinion of judge Carr, as to the correctness of the decree, in all respects, excepting the requiring an account of rents and profits. In my opinion, it was premature, in the actual state of the cause, to order such an account to be rendered; since it may hereafter appear, upon the amended bill, that the plaintiff has not acquired any just right to Sims’s equitable title to the land ; and it is wrong to put the defendants to the trouble of rendering an account of rents and profits, till it be ascertained, that the plaintiff has a right to demand it. I am, therefore, for correcting the decree in this respect, and reversing it for this cause, and affirming it as to all things else.

BROOKE), President.

As respects some of the objections taken to the decree, in the argument, the appeal to this court was certainly premature.

' The chancellor having rightly decided, that the legal title to the land in controversy, was in neither of the parties, the *next question was, which of them had . the better equitable right. Morgan’s patent being older than the patent under which the defendants claimed, the legal title was in his devisee, Mrs. Neville. Sims under whom the plaintiff claimed, there can be no doubt, purchased the land of Morgan, and paid for it. The evidence of Armistead, • corroborated by that of Summerton, might not be conclusive of that fact; but the release of Mrs, Neville, the devisee of Morgan, to the plaintiff, though it conveyed nothing, was conclusive evidence that she claimed no title tO' it. And the plaintiff having shewn by Lee’s evidence, enough to give colour to his claim under Sims, the chancellor was correct in not dismissing his bill, until an opportunity was afforded him to make Sims’s representatives parties, and then to prove, if he could, by the record of the suit spoken of by Lee, that he was a creditor of Sims, and by other evidence, that he had a right to elect to take the land in question, in discharge of his claim. It might have been more regular to have made Sims’s representatives parties before ; but a court of equity will not dismiss a bill for the want of parlies only, especially in this case, in which the plaintiff could not be sure that his title under Sims would be controverted by the defendants.

The objections, that the claim upon Sims, accruing in 1800, ought to have been presumed paid in 1822, and to the title of the plaintiff under the deed of trust for the benefit of Sims’s creditors,.the confidence in the trustees being personal, and not devolving on the heirs of the surviving trustee, from whom the plaintiff obtained his deed ; are objections of the same character, and ought not to have been discussed until Sims’s heirs were made parties.

The other objections are of a different character and deserve more consideration.

The objection, that the purchase of the land, either by Sims from Morgan, or by the plaintiff from the trustees of Sims, was the purchase of a pretensed title, is not sustainable upon the facts in the case. At the time of the purchase *by Sims of Morgan, there was no adverse possession of the land in question ; and the purchase by the plaintiff of Sims’s equitable title, under its circumstances, was no violation of the letter or spirit of the act against the purchase of pretensed titles. That act imposes a penalty, but does not avoid the conveyance (Tabb v. Baird, 3 Call, 441,) even where the legal estate is conveyed ; and cannot affect the conveyance of equitable rights. And, though equity will not enforce an equitable title, purchased by a party under circumstances, which if it were a legal title, would sub*94ject him to the penalty of the act against the purchase of pretensed titles, that is not the case before us. The plaintiff elected to take the land under the deed of trust, in discharge of a prior debt. He violated neither the letter nor the spirit of the act. The opinion of lord Eldon in Wood v. Griffith, is directly in point. There can be nothing clearer, I think, than that this objection to the decree of the chancellor has nothing in it.

Another objection was, that though there was a contract between Morgan and Sims, for the land, yet there is not such evidence of it, as equity will deem sufficient on a bill for specific execution, Sims never having been put into possession, and there being no written evidence of the terms of the contract, as to price &c. If Morgan’s representatives were resisting this contract, I think this objection would be entitled to great weight. The title bond spoken of by Armistead from Morgan to Sims, ought to be produced, or its loss accounted for, and its contents proved. But the proof, I think, is full enough of the payment of the whole of the purchase money by Sims. Armistead swears, that Morgan put into his hands the patent and title bond to be delivered to Sims, in virtue of that contract. The insolvency of Sims, his death, and that of his trustees, and the lapse of so many years, might, with other circumstances, account for the nonproduction of the bond, even if Morgan’s representative was contesting the claim, and Sims’s representatives were also parties : but in the present state of the cause, the release of *the representative of Morgan to the plaintiff, must be considered a full acknowledgment of the contract alleged in the bill.

The last objection to the decree was, that the deed from the marshal to the defendants, in virtue of the sale for taxes,was pronounced to be invalid. It was admitted, that, by the decisions both of the supreme court of the U. States, and of this court, a purchaser claiming under these deeds, must shew that all the requirements of the act of congress have been complied with ; but it was insisted, that after the lapse of twenty years, compliance with the requirements of the act may be presumed, though the party be unable to prove it. If such a presumption were applicable to a case like this, the defendants could not avail thémselves of it. When they purchased the land under the sale for the nonpayment of the taxes, they had full notice of the rights of Morgan ; indeed, the purchase was made, to evade the title of Morgan, and to fortify their own. They were put on their guard, and ought to have preserved all the documents and proofs of their title under the deed. When an officer acts under a naked power, and the .property of others is to be affected by his acts, it must be shewn, that he has acted in pursuance of his authority to the very letter. In Williams v. Peyton, the deed of the marshal under this same act of congress, was held not to be even prima facie evidence, that the requirements of the act, previous to the sale, had been complied with : and from the manner, in which the question is treated in that case, it is pretty clear, that the court would have permitted no other presumption, than such as would be received as to any other link in the chain of title to real property. [This the judge shewed, by several parts of the opinion, which he quoted.] Neither is it fairly inferrible, from any part of the opinion of the court in that case, that if presumption in such a case were admissible, it would be allowed on a shorter lapse of time, than is required to found such presumption, where any other link in the chain of title to real property, may be presumed, in the absence of proof otherwise indispensible. And that is a *case. at law, where forfeitures may be strictly insisted on. But courts of equity rather favour presumptions to relieve against forfeitures, than to sustain them; In the case of Abraham v. Matthews, the presumption after the lapse of twenty years, that a party bringing a slave into this state, had taken the oath before a magistrate, prescribed by statute, was allowed to save the forfeiture under the statute. Whether, in any case, a court of equity will allow presumption to sustain a forfeiture, where the party claims immediately under it, it is not necessary to decide. The case of Christy v. Minor, and other cases, in this court, concur in the principle of Williams v. Peyton.

Üpon the whole, as the object of the decree was to preserve the equity of the plaintiff under Sims, until it could be properly controverted by his representatives, the order that they be made parties was correct.

But I concur with judge Cabell, that the decree is wrong in the particular mentioned by him, and must for that cause be reversed.

The day after these opinions were delivered, the president mentioned, that the objection taken by the appellants, in their answer, that their twenty years possession was a bar to the assertion of the equitable right to the land claimed by the bill, if it had been presented in the argument, had not been considered by the court; and that the point might now be argued.

It was spoken to accordingly. The case of Elmendorf v. Taylor, 10 Wheat. 152, was referred to ; in which it was held, that twenty years adverse possession is a bar in chancery to the assertion of an equitable title, whenever it would bar an ejectment, if the plaintiff claimed the legal title. The principle was not contested : the only debate was, whether it was applicable to this case.

The president afterwards announced, that the court saw no reason to alter its decree. The reporter was afterwards informed, that the court did not think it necessary, in the present state of the case, to decide the point.