Duncan research files of
Fleming Co. KY County Court Minutes (Order Book), Vol.E-F, Oct. 1827 - Aug. 1840 (FHL film 343,960)
E-86: Court held 4 Nov. 1828, came John Finley of Fleming Co. KY, and deposed that he was well acquainted with David Duncan who died in the City of Pittsburg [Allegheny Co.], PA, in 1792; that he also knows that said David Duncan purchased a land warrant for 3,000 acres from David Holmes; that said Duncan had said warrant laid on 3,000 acres, to wit, 1000 acres on the waters of Darby Creek, 1000 acres on the waters of Mill Creek, and the remaining 1000 acres on the waters of Bokes Creek, all in state of OH; said warrant was laid on said land by Lucas Sullivan; that the heirs & legal representatives of said David Duncan are Hannah Finley, Margaret Holvey, Margaret Christy, and Abram Clarke, the first two are children of said David Duncan & the two last are grandchildren, being children of Mary Clarke late Mary Duncan daughter of said David Duncan; the said Hannah Finley is now the wife of John Finley and Margaret Christy is now the wife of Rutherford Christy and all reside in the State of KY & are the heirs of said David Duncan; /s/ John Finley; which is ordered to be recorded & certified. (MAD: see 1838 Union Co. OH deeds 7-242 and 7-244; there was at least one son of David Duncan not named in above statement)
Fleming Co. KY Wills (FHL film 344,039)
C-145: 5 April 1824, will of Margaret Duncan; weak and afflicted in body; my daughter Margaret Holvey of Allegany Co. PA $200 specie and interest of $500 annually of proceeds of the farm whereon she now resides for her life, then if they outlive her the amount in full for interest and benefit of Elizabeth Finley, wife of David D. Finley, and Sarah Gibson, if (they) not (survive her), then for use and benefit of their respective heirs; to my grandson David Clarke $200 and my granddaughter Hannah Rheames $200 and to her daughter Margaret Logan $100 and to Mary Campbell $200; to Sarah Gibson all my furniture, etc; to David D. Harley (Hurley?) my grandson $300 specie, to his daughter Margaret $100, to his daughter Martha $100, and to my daughter Hannah Findley and son Samuel Duncan $1 each, they having already received a larger portion than any of the legatees above named; to my granddaughter Sarah Gibson the amount due me on two bonds executed to me by Triplett & Early, one for $700 and one for $200 with the interest now accrued and that may hereafter accrue until paid; to Abraham Clarke $100; to Margaret Chitsey $200; all the papers relative to my 'Town' property in Saint Louis, State of MO, be placed in the hands of David D. Finley to make what use of them his discretion may direct. Appoint friends James Young Esqr. and George Stewart Esqr. of Pittsburg, Allegahny (sic) County, PA, and William P. Fleming of Fleming Co. KY executors. Wit. John C. Cassidy, Marquis D. Cornby. Prob. 5 July 1824.
Logan Co. OH Deed (SLC 2/2009 & 6/2009)
K-159/161: 24 May 1838, Solomon Ream and Hannah his wife late Hannah Clark daughter of Mary and David Clark and Grand Daughter of David and Margaret Duncan and one of the heirs at law of said David and Margaret Duncan decd; that the said Solomon Ream and Hannah his wife for $30 paid by Samuel B. Findley, quit claim to Samuel B. Findley of Fleming Co. KY our right, interest, ... to certain tracts of land in Union County and Logan County, designated Numbers 3443 and 3444 and the one in Logan County being No.479. /s/ Soloman (X) Ream, Hannah (X) Ream. Wit. M. Kingston, D.S. Seally. Received on date of foregoing, from above named Samuel B. Finley, the sum of $30. Wit. M. Kingston. Ack. Pittsburgh, Allegheny Co. PA, 24 May 1838. (FHL film 545,364)
Summit Co. OH Will Book 4 (FHL film 900,957)
4-171/8: Probate Court 7 Oct. 1875, will of Thomas G. Duncan decd. produced. Will of Thomas G. Duncan of Battle Hawk, Calhoun Co. MI, USA, Esq., but at present residing at Wheatfield near Buffalo in Antrim, Ireland, revoking all other wills; devise absolutely to my dear Mother my house in Cadwill Street, Pittsburg [Allegheny Co. PA]; and direct that my executors shall lay out and expend the sum of $5000 in furnishing the same for her. To my brother George I give absolutely my property in the oil regions in Pennsylvania including my interest in Pistole?? City and the town of Plummer. To my executors I bequeath my house and land in Cuyahoga Falls, OH, in trust for my brother James during his life, and after his death in trust for the eldest child of my said brother George living at the time of his death; and should my said brother James die before the eldest child of my brother George attains 21 years, my executors shall let the same and the proceeds held in trust for the benefit of the child until he arrives at that age. The properties which I hold at Battle Creek aforesaid, Cleveland, OH, Chicago, IL, Wisconsin and Pennsylvania be sold and the proceeds & personal estate at time of my death be disposed of as follows, that exec. pay debts & expenses; $25000 in purchase of property for my mother's support and maintenance during her life; set aside sufficient funds to pay wages of a gardner & his female consort for the use of my said brother James for life ... To my brother Francis Henry Duncan $10,000. To my brother George Duncan $2,000. To the Rev. Matthew Simpson of Philadelphia ... Bishop Simpson of Methodist Episcopal Church sum of firty (sic) thousand dollars. To James Long (Lang?) of Philadelphia, $30,000. To William Jackson of Pittsburg, blacksmith at Rail Road Wake, PA, and who has lost the use of one of his eyes, $20,000. To William Wilson of ... To Miss Sarah Prather of Plainview, $30,000, free from control of her husband if she should marry. Each of my friend James Lirege? (Long?) two daughters; to Ann Parke of City of NY who is a relation of my mother, $10,000; to James Lirege? sisters of Philadelphia to be divided among them; to trustees of Methodist Episcopal Church. Should I die in Ireland I direct that my remains be taken to Pittsburg and interred beside my father. I hearby declare my reason in omitting my brother Williams and my sister Mary Janes name from this will is because I have already provided for them. Appoint Bishop Simpson and James Leng? of 208 Church Street, Manufacture, both of Philadelphia in the USA executors. 17 day of M. (sic) in 1871. Wit. Joseph Sims, Draper, Belfast, and James Sterart, Town Clerk, Belfast. Cert. Calhoun Co. MI, by Mathew Simpson and James Long? as principals and W. Baird, Stephen P.M. Taskin as securities, all of PA, and I. Owen as security in MI, bond for $8000. Certification in Philadelphia PA, Calhoun Co. MI, and Akron, Summit Co. OH.
Information from Barbara A. Brown 1/2007: Matthew Simpson was the Bishop at Grace Methodist Episcopal Church in Philadelphia, and James Long (manufacturer and banker) was president of the church council.
Union Co. OH Deed 1820-1859 (FHL film 571,799)
7-244: 24 May 1838, Solomon (+) Ream and wife Hannah (+) late Hannah Clark, daughter of Mary and David Clark and granddau. of David and Margaret Duncan decd; for $30, to Samuel B. Findley of Fleming Co. KY; lots in Union Co. OH #3445 and #3444 and one in Logan Co. #479. Wit. M?. Kingston, D.L. Scully. Rec. Allegheny Co. PA.
Obituary, "Dayton ...", Dayton [Yamhill Co.], OR, Friday, January 1, 1897 (from Byron Merrill 10/1987, permission to post on web 1/2001)
Death of Andrew Duncan. Andrew Duncan was born July 1, 1815, 81 years last July, near Pittsburg [Allegheny Co.], PA, where he lived for 30 years and then removed to OH. Lived there 10 years and moved to IA in 1876, and from IA to KS in 1884, where he resided up to June last, when he came to Dayton, OR. ... died Wednesday evening ... Deceased was the father of Prof. S.S. Duncan, of Dayton.
"Reports of cases argued and determined in the Court of Appeals of Virginia" by Peyton Randolph, Vol.II; Virginia Reports Vol.23, pgs.206-227; January, 1824; Court of Appeals of Virginia (from Jim Dempsey and from CA State Law Library 10/2003; MAD: there is more in the published report)
MORRISON v. CAMPBELL and Others. [NO NUMBER IN ORIGINAL] SUPREME COURT OF VIRGINIA; 23 Va. 206; 2 Rand. 206; January 31, 1824
David Duncan, in his life-time, was entitled to 21,000 acres of land, in Greenbrier county, by entries and surveys, made for him by the surveyor of the said county, in the year 1787. Duncan died in 1791, leaving Wallace and Kirkpatrick, his executors, and authorising them, by his will, to sell and dispose of all his estate, real and personal. James Morrison, the appellant, in the year 1806, purchased the said surveys of the said Wallace and Kirkpatrick, executors as aforesaid.
In the year 1796, the entries of the said land were assigned to a certain James Welch, by a paper purporting to be executed by David Duncan, and expressing a consideration of $5,000 for the said assignment. Welch conveyed the said lands, by deed of trust, in 1797, to Hicks and Campbell, to secure a debt of $3,933 I/3. The deed recites, "that the said surveys were assigned to the said James Welch by the said David Duncan, and are returned into the office of the Register; copies whereof are delivered to the said Hicks and Campbell." The money not being paid when it became due, the lands were sold, and Hicks and Campbell, and James Currie became the purchasers. William Currie was afterwards admitted by Hicks and Campbell to a share in the said lands; and a patent was then issued to Hicks and Campbell. James Currie, and William Currie.
James Morrison then filed his bill in the Richmond Chancery Court, alledging, that he had become the lawful proprietor of the said surveys, by purchase from Wallace and Kirkpatrick, executors of Duncan, as aforesaid: that, the assignment of the entries to James Welch was forged, and not the assignment of David Duncan, the proprietor of the said surveys: that, the consideration of $5,000 was merely nominal: that, he has done nothing to impair his rights, which are superior, in law and equity, to rights derived from the fraudulent assignment aforesaid; he, therefore, prays, that Robert Campbell, Robert Gordon, and Janetta, his wife, and James Currie; which said James and Janetta are the heirs at law of James Currie deceased; Robert Hicks, Nathan S. Dalland, and Sally, his wife, and John Hicks; which said Robert, Sally, and John, are the heirs of John Hicks, deceased; George Wallace and A. Kirkpatrick, citizens and inhabitants of the State of Pennsylvania, and executors of David Duncan, deceased, Charles Blagrove, Register of the Land Office, and James Welch, may be made defendants; that Robert Campbell and the representatives of James Currie and John Hicks may declare whether they claim the land in question under an assignment of the surveys made by James Welch; that they may set forth what were the terms of the assignment from Welch to Hicks, Campbell and Currie, and what consideration passed for said assignment; that Wallace and Kirkpatrick may say whether they have not, under the authority conferred on them by the will of David Duncan, deceased, sold and assigned over to the complainant, all the right and title of the said Duncan, in and to the said surveys of the aforesaid 21,000 acres of land; that the said James Welch may set forth, particularly, of whom he obtained an assignment of the said surveys, the consideration for which they were assigned, who were present, &c.; that the said Welch disclose all the circumstances of the said assignments; that the said Blagrove, Register of the Land Office, do exhibit copies of the surveys and grants, and the assignments on the former; that the said patents be vacated by a decree of the Court; that new grants be directed to be issued to the complainant, or if that should not be regular, that Campbell, the representatives of James Currie and John Hicks, be decreed to release and assign over all right and title they may claim in said lands to the complainant.
The answer of Robert Campbell alledges the deed of trust executed by Welch, to secure a debt due to Hicks and Campbell, and conveying the land in question; that the original surveys and assignments were regularly made, as far as the defendant knows or believes, and are now in the Register's office; that the debt of the said Welch not being paid, the land was sold from time to time, when the defendant, John Hicks and James Currie became the purchasers; that the defendant and his late partner, John Hicks, permitted William Currie to be interested with them to the amount of one-third of their two-third parts of the said land; that no patents having issued, at the time of the said deed of trust, the said Welch assigned the said surveys to the said Hicks and the defendant, and they directed patents to issue to Hicks, Campbell, William Currie and James Currie, in their proper proportions; and the patents were issued accordingly, on the 20th day of November, 1797; that the said patentees and their heirs are innocent purchasers for a valuable consideration actually paid, without notice of any adverse claim, until after they had obtained the legal title; that he does not admit that the assignment to Welch was fraudulent, but he insists that it was the genuine assignment of David Duncan; that the complainant, having purchased when the patentees were in possession of the land, and had obtained the legal title as fair purchasers, he was a purchaser of a pretensed title, which is prohibited by law, &c.
Robert Gordon and Janetta, his wife, and James Currie, answered, that it is true that the said Janetta and James are the heirs of James Currie, deceased, and children and legal representatives of William Currie, deceased; that as to the other allegations of the bill, they know nothing, of their own knowledge, and call for proof thereof; and that they are satisfied that both James and William Currie, deceased, were innocent purchasers for valuable consideration actually paid, &c.
The suit abated as to Wallace, by his death; and publication was made against the children * and heirs of David Duncan, deceased, Kirkpatrick, Welch, Dalland and wife, as absent defendants. [* note in original edition: These persons were made parties by an amended bill]
A. Kirkpatrick, surviving executor of Duncan, filed his answer, stating, that he admits that he and G. Wallace, since deceased, in pursuance of the will of D. Duncan, sold to James Morrison, in the year 1816, the surveys of land in the bill mentioned, and all the said Duncan's rights therein, for a valuable consideration, and delivered to the said Morrison certain original papers, connected with the title of the said Duncan; that neither David Duncan, in his life-time, nor his executors, since his death, have ever transferred the said Duncan's right in said lands, to any other person than the complainant, James Morrison; that the defendant and his co-executor, Wallace, were both ignorant of the steps taken by Hicks and Campbell, or any other of the defendants, in obtaining patents in these cases, their residence being in Pittsburg, in Pennsylvania; and he hopes that neither the representatives of D. Duncan, nor the complainant, may be injured by the measures resorted to by Campbell and others; that he believes the assignment to Welch was fraudulent; and he is willing that the land in question should be decreed to the complainant.
Dalland and wife filed their answer, disclaiming any knowledge of the transaction. John Hicks, by his guardian, did the same.
Among the exhibits is a paper purporting to be the will of David Duncan, which empowers his executors to sell and dispose of all his real and personal estate. He appointed four executors, two of whom were Wallace and Kirkpatrick above-mentioned. This will was never recorded in Virginia; but, there is a certificate of Samuel Jones, who styles himself Register, that the instrument exhibited is a true copy of the original, recorded in the office for recording of wills in Alleghany county, Pennsylvania.
David Steel deposed, that David Duncan was a tavern-keeper in Pittsburg, at the time of his death, and for a number of years before; and that some time after his death, the deponent was informed that a certain James Welch had fraudulently obtained a conveyance for the lands in question, from a certain David Duncan, who sometimes traded up and down the Ohio; and this David Duncan was a different man from the David Duncan of Pittsburg aforesaid; that this person told the deponent that he had no entries or surveys in Greenbrier county; that Welch was a trading and speculating man, of bad reputation, &c.
Another witness proved, that there was a man named David Duncan, who was a different person from the one who lived in Pittsburg.
There was other evidence, which is fully stated in Judge Green's opinion.
The Chancellor dismissed the bill, and an appeal was allowed by the Court of Appeals.
Counsel: Call Nicholas and Stanard, for the appellant. Hay and Wickham, for the appellee.
It was contended for the appellant, that the patent was void ... because the law requires the patent to issue to the locater or his assignee, ... [and] entries are not assignable by law ... [and] the assignment was forged. ...
On the part of the appellees, it was said, that the appellees have acquired the legal estate honestly and fairly, without notice of the claims of the appellant; and that a Court of Equity will not take it from them, even if the patents are at law voidable, and although there be full proof of the fraudulent assignment alledged in the bill. ... [and] The appellees acquired the legal title honestly and fairly, and without notice. There is no pretense of any actual participation in the supposed fraud. [and] ... There is no proof of forgery.
In reply, it was said, that it was clearly proved, that the assignment to Welch was a forgery. The case is the same, as if the heirs of the real David Duncan were the complainants in equity. In this event, it could not be said, that the case would be that of two rival equities. A junior equity with the legal estate, can only succeed over a senior equity, where the source of the equity is pure. An equity which is founded on a forgery, is of no weight; and the subsequent accession of the legal estate, cannot give it any validity. ...
The appellees contend, that Hicks and Campbell were purchasers, without notice. But, of what were they purchasers without notice? Not of David Duncan's title, because they pretend that they have that title. They must mean that they had no notice of the forgery. But, this is not the meaning of the equitable rule. For example; a third mortgagee has a forged mortgage, without notice, and obtains possession of the legal title. This surely will not protect him.
The patent is void, and, therefore, they have not a good legal title. But, even if it be merely voidable, it is not such a title, as, within the rule in equity, will protect the purchaser.
It is said, that the appellant purchased a pretensed title. But, the act of Assembly makes surveys assignable, which justifies the assignment, and acquits it of the imputation of being a pretensed title. This was merely an executory agreement, and therefore, does not come within the law. Sugd. (new edit.) 348; 1 Swanson, 56.
As to the right of the executors to sell, it is not put in issue in this cause. The will might be expunged from the cause, without injury to the complainant's case. It is too late to take exception to exhibits in this Court, when they were read in the Court of Chancery, without objection.
Judges: Judge Green. Judge Coalter. Judge Brooke, concurred. The Judges delivered their opinions. [* Footnote: Judge Cabell, did not sit in this cause.]
January 31. [Opinion by] JUDGE GREEN.
The first enquiry in this case is, whether the appellant has shewn himself to be entitled to the rights of David Duncan, of Pittsburg, in the subject in question, so as to be entitled to assert them against the appellees, who claim under Welch. He asserts, that David Duncan made his will, whereby he directed all his property, real and personal, to be sold by his executors: that, he purchased the land in question of George Wallace and Abraham Kirkpatrick, two of his executors: that, Samuel, David, Hannah, Mary, and Margaret Duncan, are the heirs of David Duncan; and it appears, from the paper exhibited as a copy of the will, that they are also his sole devisees, of the proceeds of the sale of the land in question. Due publication has been made as to those heirs and devisees, and George Wallace is dead, and the suit has abated as to him. Kirkpatrick answered, and admitted all the allegations of the bill. Some of the defendants claiming under Welch, do not deny these allegations. Others, saying they know nothing about them, call for proof; and others are infants, answering by guardian, and neither admitting nor denying those allegations. The appellant, in proof of those allegations, exhibits a paper, purporting to be a copy of the will of David Duncan, recorded in Alleghany county, in Pennsylvania, certified by the Register of that county. But, from this, it does not appear, upon what proof the will was admitted to record. He also exhibits a contract between the said Duncan and David Steel, who conveyed the lands in question for David Duncan, and various other documents in relation to the said lands, which he alledges, were delivered to him by the executors of D. Duncan, and which Kirkpatrick also alledges. These papers could have been had no where, but from the representatives of David Duncan; also a paper purporting to be a copy of the proceedings and judgment in the name of David Steel against Margaret Duncan, executrix, and Abraham Kirkpatrick and George Wallace, executors of D. Duncan, deceased. This paper is certified by the Prothonotary of Alleghany county, in Pennsylvania, under his seal of office; but, it is not otherwise authenticated, so as to be strictly legal proof. Is this proof sufficient to establish the facts alledged by the appellant, upon which he founds his title as against the representatives of David Duncan? And, if so, is it sufficient also against the other appellees, claiming under Welch?
The act authorising proceedings in Chancery against absent defendants, prescribes, that after due publication: "If such absent defendants shall not appear and give such security, within the time limited, or such further time as the Court shall allow, upon good cause shewn, the Court may proceed to take such proof as the complainant shall offer; and, if they shall thereupon be satisfied of the justice of the demand, they may order the bill to be taken for confessed, and make such order and decree therein, as shall appear to be just, &c." This act passed as to absent debtors, originally in 1777, and was extended to other absent defendants in 1787; and it was not until 1792, that any mode was prescribed for giving notice to an absent defendant, whose residence was not known. From this, it appears, that "such proof as the complainant shall offer," spoken of in the act of 1777, was not confined to strict legal proof; for if it was, then, in consequence of the absence of the defendant, and his place of residence not being known, it would, in many cases, be impossible for the plaintiff to produce any such legal proof. His evidence might consist of the testimony of witnesses exclusively, and their testimony could not be strict legal proof, unless taken upon notice to the other party. The act of 1792, therefore, related, not to proceedings against originally absent defendants, proceeded against by publication under the acts of 1777 and 1787; but, to absent defendants, properly before the Court, upon process duly served, or by answer. Such proof as the act of 1777 alludes to, was not taken as the foundation of the decree; but, only to satisfy the Court, that, under all the circumstances of the case, the demand was just, and might be other than strict legal proof; and, being so satisfied, the Court was authorised then, and then only, "to order the bill to be taken for confessed," which was not the necessary consequence of the non-appearance of the defendant; and, thereupon, the decree was founded, not on the proof, but upon the admission of the bill in omnibus.
The inchoate right, which David Duncan had, at the time of his death, to the lands in question, was real, and not personal estate; and, if he had died intestate, would have descended to his heirs at law, and would not have passed to his personal representative. This interest could only have been devised by a will executed in the manner prescribed by the laws of Virginia for a will of lands; and, although it be not necessary to prove a will in a Court of Probate in Virginia, for the purpose of giving it effect as a will of lands, yet, it is necessary, then the fact is in issue, that he who claims under it should shew by proof in the cause, in which the claim is asserted, that it was executed with the solemnities required by the laws of Virginia, to give it the effect of a will of lands. This fact may be shewn, by producing a proper probate in a Court of Probate in Virginia; or, if the will has not been so proved, by any other competent evidence, according to the course of the common law. These points are fully discussed in the case of Bagwell v. Elliott, ante. If, therefore, in this case it was incumbent on the appellant to produce strict proof of the execution of the will, as a will of lands, in Virginia, according to the laws of Virginia, he would totally fail; for, in strictness, there is no legal proof of the existence of the will, or of the manner of its execution. But, according to the view I have taken of our statutes, no such strict legal proof was necessary in this case, as to the absent defendants; and, I think, that the proofs exhibited were sufficient to satisfy the Court, of the justice of the plaintiff's demand, and to justify the taking of the bill as confessed, and decreeing accordingly. The allegation of the plaintiff, admitted by the surviving executor, and proved by the production of papers, in relation to Duncan's title, (which could not have been had but from Duncan's representatives,) that he purchased from the executors, authorised by the will to sell the land; the act of the executors in taking upon them to sell; and the acquiescence of the heirs and devisees of Duncan in that sale, ever since 1806; are circumstances, which, in this suit, as against absent defendants, justify the belief, that the will was duly executed to pass lands, according to the laws of Virginia; and that the executors sold the lands in question to the plaintiff. If the will had only authorised the executors to sell, it would have been necessary that all should join in the sale, in order to effect a valid sale; unless those who sold had previously qualified as executors in Virginia. But, the will authorises any two to act, and any two were authorised to make a valid sale, by force of the will, without any qualification as executors; the act of 1785, ch. 61, Sec. 42, being an enabling, and not a prohibitory, statute. The act of 1777 seems to have adopted the act of 5 George 2d, ch. 25, authorising bills to be taken pro confesso after publication, in certain cases, with this difference, that, under the English statute, the bill was taken pro confesso of course, and the decree accordingly followed, without any proof to satisfy the Court of the justice of the demand, either before or after the order for taking the bill pro confesso. The reason which induced the Legislature of Virginia to deviate, in this respect, from the provisions of the English statute, seems to be, that our act authorises publication against any absent defendant, who might never have heard of the demand; the English statute only authorises publication against defendants who had left the kingdom, or absconded and concealed themselves, to avoid the service of process in that very cause.
The right of the appellant to the interest of David Duncan in the lands in question, being thus established, as against the heirs, devisees and executors of David Duncan, is sufficiently established against the appellees claiming under Welch; for, the only interest they can possibly have in that question is, that the decree in this cause shall exempt them from any new litigation with those heirs, devisees, or executors, in another suit. The decree in this cause, if in favor of the appellant, will have that effect, as it would be a complete bar to any new suit on their behalf; their only relief being, by setting aside the decree within seven years, as the statute prescribes. And if the heirs, devisees and executors of David Duncan had actually appeared and answered, admitting the case stated by the plaintiff; or, if all of them had been plaintiffs with Morrison, and had stated the case which he has stated, such admissions would have been binding, and the defendants claiming under Welch could not have controverted the fact, that Morrison had legally acquired David Duncan's rights. The legal proceedings which establish that fact against the heirs, devisees and executors of David Duncan, ought to have the same effect as their admissions of record, by bill or answer, would have.
We come, then, to the merits of the case. No one can read this record, without being convinced that David Duncan, of Pittsburg, was the real owner of the surveys, upon which the patents for the land in question issued; that he never parted with his right; and that the assignment to Welch, under which the appellees claim, was in effect a forgery. ...
In the case at bar, the papers under which Hicks and Campbell and the Curries purchased, shewed, that the original entries and surveys belonged to David Duncan, and it was his equitable or inchoate right to the land, which they designed to purchase. They had full notice of his title. With reasonable diligence they might have ascertained who was the real owner of the property, and whether the assignment to Welch was genuine or a forgery. They purchased without any such enquiry, and were guilty of gross negligence. Neither Welch, nor any claiming under him, acquired by their respective purchases, any equity whatever, to be set up in opposition to that of David Duncan and those claiming under him. None of them purchased a legal title. Their rights, in equity, must be determined according to the state of things at the time of the purchase, and cannot be varied by the subsequent acquisition of the legal title, without any further valuable consideration. If the appellees claiming under Welch could succeed in this case, then, upon the same principles, if one mortgaged his land, and another, personating him, sold the land for valuable consideration to one who believed that he was dealing with the true owner and the purchaser afterwards purchased the mortgage and thus acquired the legal title, the true owner could not redeem, but would lose his estate forever, without remedy.
In equity, he who has acquired the legal title to the prejudice of another who has the better equitable right, is a trustee for the latter.
David Duncan's rights were never forfeited in fact to the Commonwealth. The surveys were returned and the patent issued in due time; and the patentees, who, by taking out the patent, made it impossible for those claiming under David Duncan, to derive any benefit from a return of other copies of the surveys to the Register's office, (for, they could not, if that had been done, have gotten patents,) cannot repel the claims of the appellant, upon the ground, that if they had not taken out the patents, David Duncan's rights might, or would have been forfeited. As soon as they took out the patents, they were trustees for those claiming under David Duncan; and the rights of the parties could not be varied by the failure of those representatives to do an absolutely fruitless and vain thing, that is, to return the surveys again to the office.
Neither does the plea, that the plaintiff was a purchaser of a pretensed title, avail the defendants. It is not necessary to investigate the general doctrines upon that subject in this case; since, whatever they may be, they do not apply in the present instance. The right of D. Duncan's representatives was equitable and not legal. There can be no disseisin of an equity; 1 Meriv. 357. Nor any possession adverse to an equitable estate, unless it be at the same time adverse to the legal estate, upon which the equitable estate depends. Ibid. If another had disseised the patentee, the possession of the disseisor would have been adverse, both to the patentees and the representatives of D. Duncan. But, the patentees having obtained the legal title, to which those representatives were in equity entitled, were trustees for them, and they might make a valid transfer of their equitable right.
The decree should, therefore, be reversed, and the holders of the legal title of the lands in question, declared to be trustees for the plaintiff, and decreed to convey to him, upon his paying to them respectively, such sums as they have expended in taking out the patents, and in the payment of taxes on the lands.
[Opinion by] JUDGE COALTER.
On the merits of this case, I think the decree is erroneous and must be reversed.
At the time the appellees made their purchase, the legal title of the lands was in the Commonwealth; and the equitable right, under the entries and surveys, was in the heirs of Duncan, who procured those entries and surveys to be made. And, although the appellees, or those under whom they claim, have since acquired the legal title from the Commonwealth, by virtue of the fraudulent or forged assignment, (relied upon and exhibited with the answer, and procured by Welch, under whom they claim,) they never had any transfer from Duncan, the true owner, of his equitable rights, binding on him and his heirs. A legal title, acquired under such circumstances, can be no bar to the equity of Duncan, or those claiming under him, any more than such title, if acquired by Welch himself, would be a bar to that equity. They can only stand in his shoes. They have no right to stand in the situation of a subsequent purchaser of an equity, who unites with that equity the legal title, before notice of a prior purchase. In that case, both parties acquire the rights of the owner, and each has a remedy against him. But, the parties in this case, presuming them to know the law, had notice that all was not regular on the part of Welch, and ought, therefore, to have enquired. The assignment made to Welch by the pretended David Duncan, was of the entries, not of the surveys. This assignment was made after the surveys, at which time, as I understand the law, no one was entitled to copies of the surveys, except the true owner; and, as they are made assignable by law, this was doubtless intended, amongst other things, to prevent fraudulent assignments. But, every person is entitled to a copy of the entry. 2 Rev. Code, (new edit.) p. 368. Welch perpetrated the fraud, by procuring these, and an assignment of them, after they had been reduced to surveys, when the surveys themselves ought to have been assigned, in order to entitle the assignee to a patent. By this means, he probably practised a fraud on the surveyor, who, perhaps, supposing him the owner, gave him copies of the plats. He also practised one on his assignees, and finally on the Register, who issued grants, although there was no actual assignment on the surveys, as the law requires. So, that if there was any doubt about my first position, I think the appellees, or those under whom some of them claim, were bound to notice this irregularity, and to take the consequences.
Warrants and surveys are made assignable by law, and where a patent issues to the assignee of a plat, the assignment is to be stated in the patent. 2 Rev. Code, p. 371 and 372. There is no law, that I can find, authorising an assignment of an entry. Such assignments, however, I believe, have been common, and held a good transfer of the equitable title, so as to enable the assignee to make a survey in his own name. But, after the entry has been reduced to a survey, then the regular course is, for the party to get a copy of his survey, and to assign it, the entry being now functus officio. 2 Rev. Code, 369. In regard to the survey, the act provides, that within three months after making the survey, the surveyor shall deliver to his employer or his order, a true plat and certificate of survey, who shall, within 12 months, return the same to the Register's office, Ibid. p. 370; and that no surveyor shall, at any time within 12 months after the survey made, issue or deliver any certificate, copy or plat of land by him surveyed, except only to the person or persons for whom the same was surveyed, or to his, her or their order, unless a caveat shall have been entered, &c., to be proved by an authentic certificate of such caveat, &c. Ibid. p. 372.
It might seem, from this, that after 12 months, any person might get a copy of the survey; but, as various acts of Assembly, passed from time to time, extended the time of making returns of surveys to the Register's office, I believe the sound construction of the act, and the practice of the surveyor under it, was, not to deliver copies of plats to any but the owners, so long as they had time to return the same, unless in case of caveat, as aforesaid. Be this, however, as it may, an assignment of the plat was necessary, in order to entitle the assignee to a patent, which must recite the assignment as aforesaid.
As to the other points in this case, whether the appellant has sufficiently deduced his title from David Duncan, and the ground stated in the decree for dismissing the bill, I am of opinion, for the reasons stated by the Judge who has preceded me, that the decree cannot be supported on either of those grounds. It must, therefore, be reversed, and the decree entered which has been prepared.
[Opinion by] JUDGE BROOKE, concurred; and the following decree was entered:
The Court is of opinion, that the assignments under which James Welch claimed title to the surveys in the proceedings mentioned, made for David Duncan and David Duncan & Co., of Pittsburg, being made by one having no title thereto, neither the said Welch, nor his assignees, nor the assignees of his assignees, acquired by their respective purchases thereof, any equity which a Court of Equity ought to respect, when opposed to the rights of David Duncan, or of those claiming under him; and that the subsequent acquisition of the legal title, without further consideration paid by the said assignees, could not better their case; that, therefore, those to whom the patents issued, were, thereupon, in equity, trustees for those claiming under the said David Duncan, and cannot avail themselves of the omission of the rightful owner of the land, to assert his claim at an earlier period; and, that the objection, that the appellant was a purchaser of a pretensed title, is also unavailable to the appellees claiming under Welch; that the appellees, respectively, in whom the legal title to any of the lands in the proceedings mentioned is vested, should be decreed to convey the same, with special warranty to the appellant, upon his paying to them, respectively, any sums of money which they may respectively have paid, for the costs of taking out the patents for those lands, or may have paid for taxes upon the same; the amount of which should be ascertained under the direction of the Court of Chancery; and that the said decree is erroneous, &c.
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