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January 1, 1838


APPEAL from the circuit court of the United States, for the western district of Pennsylvania, in the third circuit.

The appellant filed his bill on the 19th of October, 1835, stating, that on the 11th of March, 1835, he entered into an article of agreement with David Barr, acting as attorney for his wife, Elizabeth Julia Ann, who thereby became a party to the same. The agreement stated that Charles Bradford, late of Pennsylvania, obtained for his services as an officer in the Virginia continental line, a land warrant, No. 4467, for 2666 acres of land, which was entered, surveyed, and patented in three surveys in the Virginia military district, in Green and Brown counties, in the state of Ohio. That Charles Bradford died intestate, leaving four children, two of whom died without issue, and intestate, leaving Henry R. Finley, and Elizabeth Julia Ann, his only surviving heirs. Elizabeth Julia Ann married John Finley, and died, leaving two children, Henry, and Elizabeth Julia Ann, who are the only heirs of their mother, and are entitled to one undivided half of the said military land. That Henry R. Finley, and Elizabeth Julia Ann, the wife of David Barr, sold to the complainant an undivided moiety of the two surveys in Green county, in consideration of an agreement to pay eight thousand dollars; of which one thousand dollars was paid, and notes given to Henry R. Finley, and to the wife of David Barr, for the residue due, payable in equal instalments, in one, two, and three years; viz., on the first of January, 1837, 1838, 1839. The defendants, and the wife of Barr, covenanted that they were the persons they represented themselves to be, and that they were seised and possessed of a good legal title to the lands they sold to the complainant; and bound themselves, their heirs, &c., to make him, his heirs, &c., a good title in fee simple, as soon as he should pay the purchase money. That defendants asserted they had in possession the evidences of the title of defendant, Finley, and the wife of Barr, to the land; and that a letter of attorney had been executed and acknowledged by Barr's wife to himself, authorizing him to sell and convey her title in the land; that they had then just discovered that they had not brought these papers with them, and to induce appellant to close the contract, promised to send him the papers as soon as they should return home: confiding in the existence of the papers, and the promise to forward them to him, he concluded the agreement. The complainant says he paid down the one thousand dollars, and one hundred and four dollars; the latter credited on the last note. That since the date of the contract, Barr's wife has died intestate, and without issue, being a minor at her death. That defendants have not produced their title papers, nor letter of attorney. That defendants cannot perform their contract, nor make a good title to the land, because Charles Bradford died in 1789; and the lands were entered in his name, on the 19th of April, 1793; and the tract of one thousand acres was surveyed the 14th of February, 1794: and the survey of the tract of twelve hundred acres, was made the 24th of March, 1794: the entries and surveys being made about four years after his death.

The complainant, averring his readiness to perform, prays that the article of agreement may be deemed annulled and cancelled; that the money be refunded, with interest, and the notes enjoined, and the collection restrained; and for general relief.

The defendants, Finley and Barr, on the 19th of January, 1836, answered jointly, admitting the contract as stated in the bill, and that H. R. Finley, and Elizabeth Julia Ann Barr, wife of David Barr, were the children, and sole heirs of Elizabeth Julia Ann Finley, daughter of Charles Bradford, and entitled, as such, to a moiety of the lands in question; and that they told the appellant they had, in Pennsylvania, evidence that defendant, Finley, and the wife of defendant, Barr, were the heirs of Elizabeth Julia Ann Finley; all which they assert to be true, and can prove. The defendants deny that they represented they had in possession any title papers, or any evidence except that which would prove the heirship of defendants, Finley, and the wife of Barr. On the contrary, they told the complainant they had no title papers, and that they had only recently been informed of the existence of the land; and that the defendant, Finley, and the wife of Barr, had any title thereto. The complainant told defendants he had long known that the heirs of Elizabeth Julia Ann Finley were entitled to one undivided half of said lands; that he had a record of their names; had made inquiries for them: that he had been anxious to buy the interest of defendant, Einley, in the lands; as he, the complainant, had sold the said lands, and bound himself to give good titles, and he feared some other person would purchase the interest of the defendant, Finley, and his sister, and give him trouble. The complainant stated at the time, that he knew all about the title; and that if defendant, Finley, and his sister, Elizabeth Julia Ann Barr, were the children of Mrs. Finley, he was satisfied as to their right to the lands. Defendants admit that they agreed to forward to appellant evidence that defendant, Finley, and his sister, were children of Mrs. Finley, and meant to do so; but the death of Mrs. Barr, caused it to be negleeted. The defendant, Finley, denies representing to appellant that Mrs. Barr had executed a letter of attorney to her husband, and that defendants had only then discovered that it had been left behind: he admits that he might have told appellant that Mrs. Barr was willing that her husband should sell her interest. The defendant, Barr, admits he represented that his wife was willing he should sell her interest; and that a letter of attorney had been prepared to that effect, and left behind; but he denies recollection of saying it had been executed and acknowledged, and that he supposed he had the same with him, and had then only discovered he had left it behind. He admits he promised to forward the power, but the death of his wife prevented this being done.

The defendants deny intention or attempt to induce appellant to enter into contract, and pay his money thereon, by fraudulent representations. They admit the payment of one thousand dollars, and one hundred and four dollars, as stated in the bill; and that Mrs. Barr died a minor, without issue and intestate; but aver that her death did not affect their right to comply with the contract, as the interest of Mrs. Barr vested at her death in defendant, Finley; who has been, and is willing to fulfil it. They deny all fraud and combination, and aver and will prove, that they made the contract in perfect good faith, believing that defendant, Finley, and Mrs. Barr had a legal right to a moiety of the land: the knowledge of their right chiefly came from appellant. But they deny that at the time of making the contract, they had any knowledge of the date of the entry or survey, or of the date of C. Bradford's death: they allege, the first intimation they had that the land was entered and surveyed after his death, was derived from the bill. They admit, from information, &c. since the bill was filed, that they believe the said lands were entered and surveyed at the times mentioned in the bill, and since the death of Bradford; who died about the time mentioned in the bill. The defendant, Finley, avers, that as soon as he was apprized of the facts mentioned in the bill, as to the date of entry and survey, he made inquiries as to the facts, and being satisfied that they were true as alleged in the bill, he proceeded without delay to the surveyor's office in Chillicothe, to get information to take steps to procure an entry of said lands, that he might fulfil said contract; which he is ready and anxious to comply with. But he was surprised when he ascertained that the appellant, a few days before, on the 26th September, 1835, fraudulently, and as defendant alleges, for the purpose of putting it out of the power of defendants to comply with their contract, and to defraud the defendant, Finley, out of his lands, had entered the same lands under surveys No. 2277 and No. 2278, mentioned in the agreement; as certified copies of the entries made by appellant, and made part of the answer, will prove.

The defendants aver, that the complainant, having made these entries to further his designs, immediately filed this bill without intimating objections to their title; although defendant, Finley, had met and conversed with him at Pittsburgh, after the entries were made, and before the bill was filed. The defendants allege, and will prove that the lands were duly entered, surveyed, and patented in the name of Charles Bradford, by virtue of which the defendant, Finley, and his said sister, at the date of contract were, as the heirs of Mrs. Finley, deceased, daughter of Charles Bradford, deceased, entitled equitably and justly to the undivided half of said lands, and had good right to sell and convey. By the death of Mrs. Barr, a minor, without issue, her right vested in the defendant, Finley, as sole surviving heir of Mrs. Finley; and being so entitled, he avers his power, readiness, and willingness to make a perfect title to the appellant for an undivided moiety of the lands, on the fulfilment of the contract by him. The defendants aver that any title which the appellant may have acquired by his entry of September 26th, 1835, shall be taken to enure to the benefit of them, for whom he holds the lands in trust for fulfilment of the agreement; and they pray that the bill may be dismissed, &c.

In February 13th, 1837, the appellant filed his amended bill, stating that besides the money he had paid defendants on account of the contract, he released to them his interest to an undivided half of survey No. 4456 for 466 2/3 acres, for the consideration of five hundred dollars. That when he made the contract with the defendants, he believed that they had a perfect title to the lands they sold him; was ignorant that the entries, &c. had been made in the name of a man not in being; and that it was not for a considerable time afterwards he came to a knowledge that the land was vacant, and that the defendants had no power to make him a title, and that the lands were subject to entry by a holder of a Virginia military warrant. He had previously purchased an undivided half of the same lands, and paid a large consideration. Deeming it right to protect his interest in premises, on the 26th September, 1835, he caused entries No. 13,696 for 1208 acres, and No. 13,697 for 1000 acres, to be made; and on the same day caused surveys to be made and returned, which were recorded 28th September, 1835. He refers to attested copies filed with the answer. The appellant charges the fact, that the lands being wholly vacant and unappropriated, he has invested himself with the best title to the same.

He prays that the defendants may answer, and also as in his original bill: or if it shall be found that defendants, or either of them, had a good title to the land, and still have a right to the same, and have authority to make a valid conveyance, then the appellant is ready, and tenders the full and perfect completion of the contract on his part. And he prays for general relief.

A separate answer was made to the amended bill by David Barr; and filed February 25th, 1837.

He admits the deed of release of the appellant's interest in survey No. 4456, and that the consideration named in the deed was five hundred dollars; but denies that that sum was the true consideration, averring that one hundred and four dollars and thirteen cents, credited on one of the notes as mentioned in the original bill, was the true consideration. The defendant avers, that at the time of making the contract, both defendants denied Galloway's claim to this survey, and set up the entire right to the same to be in Finley and his sister, then living; and that it was not considered nor formed any part of the contract; but after the contract was executed, Galloway urged a claim, at least for the taxes he had paid on the survey. This defendant agreed, in consideration of the release, to refund the taxes paid by crediting the amount on the note. The sum of five hundred dollars was inserted at the instance of Galloway, to induce his wife, as he said, to sign the deed. The defendant, Finley, had nothing to do with this transaction. As to appellant's belief that Finley and his sister had a good title, the defendant says that the complainant represented to them that he knew all about their title. The defendant supposes that the appellant became acquainted with the facts that the entries and surveys had been made in the name of a dead man, after the date of the will of Bradford had been communicated to him. He cannot admit that the appellant has by the entries, &c. in his own name, invested himself with the best and only title to the lands. The defendant denies that the lands were vacant and unappropriated at the time appellant entered them; but they had before been appropriated under warrants of Bradford, under whose entry, &c. Finley and his sister had acquired a good title, and had good right to sell and convey the same. He prays that the bill may be dismissed.

The cause was tried on the 26th of May, 1837; and the court decreed that the bill of the complainant should be dismissed.

The complainant prosecuted an appeal to this Court.

The case was submitted to the Court on printed arguments, by Mr. Corwin and Mr. Mason for the appellant; and by Mr. Fetterman for the defendants.

For the appellant the following points were made:

1. Galloway was not obliged by any principle of law or equity, to put the defendants in a situation to comply with their contract. Therefore he was not bound to assist them in procuring a title where none existed before.

2. Nor could mere silence and non-interference be imputed to him as a delinquency, for which his rights under the contract might be injuriously affected.

3. But Galloway did interfere. For when he discovered that the defendants had no title whatever to the land they had sold him, and that it was vacant, and might be appropriated, at any moment, by the first warrant holder who should come to the knowledge of that fact; he entered it in his own name.

4. Was this act on the part of Galloway an interference inconsistent with any duty imposed on him by the relation of vendor and purchaser then existing between himself and defendants? Was it a breach of good faith towards them, that ought, on admitted principles, to deprive him of the aid of a court of equity?

5. It appears from the pleadings, that Galloway had purchased, prior to the date of his contract with the defendants, an undivided moiety of the land in controversy, which he had afterwards sold and bound himself to convey by a good title; that he was urgent in his solicitations to purchase the interest of the defendants, from an apprehension as he said of having trouble, should they sell to any other person. Hence, it is maintained, that complainant had, as he asserts in his amended bill, a 'right to protect his own interest in the premises,' by making the entries he did the 26th of September, 1835.

6. Galloway had no authority to re-locate the warrant of Bradford, either in his own name, or in that of the heirs of Bradford.

But if he had such authority he was not bound to exercise it, and could not have done so without first returning to the general land office the patent for cancellation; and then of incurring the risk of acquiring a doubtful title.

7. He could not have delayed to make the entries at the time he did, without the hazard of losing the whole land; which he had already twice purchased.

8. It was certainly lawful for Galloway to secure, in the mode he has attempted to do, the undivided half of these lands which he had long before purchased and conveyed away. To accomplish this object he was compelled to enter the whole, inasmuch as he could not enter an undivided part of the land.

9. Ought the acts of Galloway, in appropriating these tracts of land to himself, to enure to the benefit of the defendants? The parties were not tenants in common; because the entire interest, if any thing, was vested in Galloway. But neither party had any interest legal or equitable; and there can be no tenancy in common of a mere nonentity.

10. Unless Galloway was somehow disabled from doing what was lawful for all the world besides, he has undoubtedly acquired an equitable title to at least one undivided half of the lands. And as to the other moiety, he has an equity that ought to be protected; as the defendants, having no title themselves, can lose nothing by the acts of Galloway, unless it should be a chance or mere possibility.

11. In determining upon questions of title, mere possibilities are not regarded; the court must govern itself by moral certainty. When a considerable or rational doubt exists, notwithstanding the better opinion, in the judgment of the court is that a good title can be made; a court of equity will not compel a purchaser to take the title. 2 Hoven. on Frauds, 24, 25, and cases there cited.

12. Where the vendor has in reality no interest in the subject of the sale though he believed he had, the contract will be set aside. 2 Hoven. on Frauds, 13.

13. A decree may be obtained by a vendee to have a purchase contract delivered up, on the ground of the defective title of the vendor. 2 Hoven. on Frauds, 24.

14. It is very properly admitted in the argument on the other side, as the law undoubtedly is, that entries made in the name of dead men, are null and void. But it is insisted, at the same time, that such entries are protected by the proviso to the act of the 2d of March, 1807, as against all entries made subsequent to the passage of that act. The contrary can be maintained both by reason and authority.

Mr. Corwin and Mr. Mason for the appellant.

The complainant has sought the aid of the Court in this case, to rescind a contract for the sale of real estate. The facts necessary to be considered are few, and in general admitted by the pleadings of the parties. The complainant alleges that he purchased of defendants the undivided moiety of 2200 acres of land lying in the Virginia military reservation, in Ohio; for which he was to pay about eight thousand dollars, in payments, the last of which would become due in 1839. That he paid one thousand dollars at the time of completing the purchase, on the 11th of March, 1835. That he also advanced at that time, the further sum of one hundred and four dollars, to enable the defendants to pay taxes due from them on other lands in Ohio. These facts are admitted by the answers of the defendants.

It is alleged by complainant, and admitted in the answers, and by the printed argument of defendants' counsel, that complainant had, previously to the date of his contract with defendants, purchased of one Finley Bradford, a co-heir with the defendants, the other moiety of the same land now in controversy. It is alleged by complainant and not denied by the defendants, that a controlling motive for entering into the contract of purchase with the defendants, arose out of the fact of his having sold parts of the land purchased of Finley Bradford, and bound himself to make titles under such sales to the purchasers. The complainant insists that at the time he purchased (March, 1835,) neither defendants of whom he purchased the last, nor Finley Bradford, their co-heir, of whom he purchased the first half of the 2200 acres of land, had any title thereto either in law or equity. That the land has been since appropriated by a valid entry and survey made in September, 1835, in another and better right; and thus he fairly comes before the court to ask a decree for the rescission of the contract; on the ground of a failure, or total want of consideration moving from the defendants to him.

Upon this state of facts, two general propositions are to be established:

1. That defendants had no title either in law or equity to the land sold by them to the complainant.

2. That the land had been fairly appropriated by another, under valid entry and surveys, so that defendants ...

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