The decision of this Court in
Massie v.
Watts, 6 Cranch 148, revised and confirmed.
Who are necessary parties in equity.
No one need be made a party complainant in whom there exists no
interest, and no one party defendant from whom nothing is
demanded.
The rule applied in equity to the relief of
bona fide
purchasers without notice is not applicable to the case of
purchasers of military land warrants under the laws of
Virginia.
Such purchasers are considered as affected with notice by the
record of the entry and also of the survey, and subsequent
purchasers are considered as acquiring the interest of the person
making the entry, so that purchasers under conflicting entries are
considered as purchasing under distinct rights, in which case the
rule, as to innocent purchasers does not apply.
The principle that only parties or privies or purchasers
pendente lite are bound by a decree in equity, how applied
to this case.
The surveys actually made on the military land warrants of
Virginia have not the force of judicial acts or of acts done by the
deputations of officers as general agents of the continental
officers.
Ferdinando O'Neal was owner of a Virginia military warrant for
4,000 acres of land, dated 17 July, 1783, and employed Nathaniel
Massie, a deputy surveyor, to locate it and to survey and return
the plats.
John Watts purchased the right of O'Neal, and on 7 January,
1801, paid Massie 50 pounds in full satisfaction for locating and
surveying the warrant.
On 3 August, 1787, Massie made an entry on part of O'Neal's
warrant for 1,000 acres. On
Page 19 U. S. 551
the same day, an entry had been made for 1,000 acres for Robert
Powell, which was purchased by Massie.
On 27 January, 1795, Massie made an entry in his own name for
2,366 acres, and the bill, filed in the court below by the
respondent, Watts, against the appellants, Kerr and others, charges
that on 26 April, 1796, Massie fraudulently made a survey for
O'Neal, for 530 acres, purporting to be made upon his said entry of
1,000 acres, but in fact on different land, having fraudulently
appropriated to himself the land covered by O'Neal's entry by
surveys made on Powell's and his own entries, having purchased
Powell's warrant and entry before the surveys were made.
The bill further states that Massie had obtained grants upon his
survey.
Watts commenced a suit in chancery against Massie in the state
court of Kentucky, claiming a conveyance of the legal title, and
proceeded to a final hearing upon the merits in the Circuit Court
of Kentucky, to which it had been removed, which last court, in the
November term, 1807, made an interlocutory decree in favor of Watts
and directed the proper surveyor to lay off the several entries in
the manner pointed out in that decree and to report to the court in
order to a final decree in the premises.
The cause was finally decided by a decree directing Massie to
convey the 1,000 acres to Watts according to certain metes and
bounds reported, and to deliver possession, &c., and upon
performance of
Page 19 U. S. 552
the decree by Massie, Watts was directed to transfer to him
1,000 acres of O'Neal's warrant.
Massie appealed to this Court, where the decree of the circuit
court was affirmed at February term, 1810.
Massie refused to convey or deliver possession when demanded,
and in the meantime part of the property recovered had been laid
out into lots of the town of Chilicothe, and the bill charges the
appellants and others, who were made defendants in the present
suit, with having in possession, respectively, part of the
complainant's property and claiming to hold the same by titles
derived under Massie.
The record of the proceedings in Kentucky and in the Supreme
Court were referred to and made part of the bill in this case.
The entries before mentioned are as follows:
"No. 503. Captain Robert Powell enters 1,000 acres of land,
&c., beginning at the upper corner on the Scioto of Major
Thomas Massie's entry, No. 480, running up the river 520 poles,
when reduced to a straight line, thence from the beginning with
Massie's line, so far that a line parallel to the general course of
the river shall include the quantity."
"No. 509. Captain Ferdinand O'Neal enters 1,000 acres, &c.,
beginning at the upper corner on the Scioto of Robert Powell's
entry, 503, running up the river 500 poles, when reduced to a
straight line, and from the beginning with Powell's line, so far
that a line parallel with the general course of the river will
include the quantity. "
Page 19 U. S. 553
"No. 2462. Nathaniel Massie enters 2,366 acres, &c., on the
bank of Scioto, corner to Robert Powell's survey, No. 503, thence
with his line south 43 east 293 poles; south 80 east to the upper
back corner of Thomas Massie's survey, No. 480, thence with his
line south 10 west, to Paint Creek, thence up the creek to the
corner of Thomas Lawes' survey, thence with his line, and from the
beginning up the Scioto to the lower corner of Daniel Stull's
survey, thence with his line so far that a line south 10 west, will
include the quantity."
But these entries depended on one which preceded them on the
entry book, made by Thomas Massie, as follows:
"No. 480. 1787, August 3. Thomas Massie enters 1,400 acres,
&c., beginning at the junction of Paint Creek with the Scioto,
running up the Scioto 520 poles when reduced to a straight line,
thence off at right angles, with the general course of the river so
far that a line parallel thereto will include the quantity."
This Court, in the case referred to, decided, that Thomas
Massie's survey ought to commence at the mouth of Paint Creek and
that the upper corner on the river should be placed at the
termination of a right line at the distance of 520 poles, and the
survey extended out at right angles with the general course of a
right line supposed from the beginning to the upper corner, and
that from the upper corner of Thomas Massie's survey, a point on
the river, at the distance of 520 poles on a right line should
be
Page 19 U. S. 554
ascertained for the upper corner of Powell's, and that the real
course of a right line from Thomas Massie's corner to Powell's
upper corner should be considered as a base from which Powell's
survey should be extended by lines at right angles therewith,
except only so far as the lower line might interfere with Thomas
Massie's property.
The survey of O'Neal to depend upon the same principles in
relation to the survey of Powell.
The object of the present suit was to carry into execution
against the defendants, who have acquired Massie's title, the
decree against him in Kentucky, affirmed in this Court.
The court below, by its decree, gave relief against each for the
specific property claimed by the answer of each, construing the
entries according to the principles of the former decision, except
in varying the complainant's survey, by a decision that a piece of
land called an island in the river, was part of the main shore when
the entries were made, and included as a part of the bank.
The defendants all submitted to the decree, except Kerr,
Doolittle, Joseph Kirkpatrick, Sr. Joseph Kirkpatrick, Jr., and the
heirs of James Johnston, who appealed to this Court.
Page 19 U. S. 557
MR. JUSTICE JOHNSON delivered the opinion of the Court.
This cause has its origin in the case decided in this Court
between Watts and Massie in the year 1810.
Page 19 U. S. 558
That suit came up from the Kentucky District, and was prosecuted
there because Massie, the defendant, then resided in that state and
either was or was supposed to be actually seized of the land in
question.
Since that decision, it has been ascertained that the present
defendants are in possession of the land or the greater part of it,
and Massie also having changed his residence to Ohio, this suit has
become necessary both to enforce the former decree against him and
to obtain relief against the actual possessors of the land.
In the course of discussion, the Court has been called on to
review its decision in
Watts v. Massie, and it has
patiently heard and deliberately considered, the able and well
conducted argument on this subject. But after the maturest
reflection, it adheres to the opinion that whether the case be
viewed with reference to the time, intent, and meaning of the
calls, to analogy to decided cases, or convenience in the voluntary
adoption of a principle of the most general application, that laid
down in the case of
Watts v. Massie, for running the lines
of the land called for, cannot be deviated from. So far, therefore,
as Massie himself and his privies in estate are concerned, Watts is
now entitled to the full benefit of that decision.
But there are various other defendants, and several grounds of
defense assumed in this case, which are unaffected by the decision
referred to.
It is contended in the first place that there is a radical
defect of parties. That the representatives
Page 19 U. S. 559
of O'Neal and Scott, through whom the complainant claims, and
those of Powell and Thomas Massie, supposed to be hostile to his
interests, ought to have been made parties.
On this point there may be given one general answer. No one need
be made a party complainant in whom there exists no interest, and
no one party defendant from whom nothing is demanded. Watts rests
his case upon the averment that all the interests once vested in
O'Neal and the Scots now center in himself, and, provided he can
recover the land now in possession of those actually made
defendants, he is contented afterwards to meet the just claims of
any others who are not made defendants. No rights will be affected
by his recovery but those of the actual defendants and those
claiming through them. As to the supposed interference of the lines
ordered to be surveyed with those of Thomas Massie or Powell, the
former is merely hypothetical by way of reference or imaginary, and
the latter is only asserted on the ground that Massie had acquired
all the interest in Powell's survey that Powell ever had. There was
therefore nothing to demand of Powell as the case is exhibited by
the record. It must be subject to these modifications, that the
obiter dictum of the Court in the case of
Simms v.
Guthrie is to be understood.
It is next contended in behalf of Kerr and several other
defendants that they claim through purchasers who were
bona
fide purchasers without notice, for a valuable consideration.
And at first view it would seem that the principles so often
applied to the relief
Page 19 U. S. 560
of innocent purchasers are applicable to the case of these
defendants wherever the facts sustain the defense. But it will not
do at this day to apply this principle to the case of purchasers of
military land warrants derived under the laws of Virginia. In all
the courts in which such cases have come under review, the
purchasers have been considered as affected by the record notice of
the entry, and also of the survey, such as it legally ought to be
made, as incident to, or bound up in the entry. It is altogether a
system
sui generis, and subsequent purchasers are
considered as acquiring the interest of the enteror, and not
necessarily that of the state. So that purchasers under conflicting
entries are considered as purchasing under distinct rights, in
which case the principle here contended for does not apply, since
the ignorance of a purchaser of a defective title cannot make that
title good as against an independent and better right. These
principles may safely be laid hold of to support a doctrine which,
however severe occasionally in its operation, was perhaps
indispensable to the protection of the interests acquired under
military land warrants when we take into consideration the facility
with which such interests might otherwise in all cases have been
defeated by early transfers.
It is further contended that the defendants are not bound by the
decree in the case of
Watts v. Massie, because neither
parties nor privies nor
pendente lite purchasers.
That those who come not into this Court in any one of those
characters are not subject to the direct
Page 19 U. S. 561
and binding efficacy of an adjudication is unquestionable. But
it is not very material as to the principal question in this case
whether the parties are to be affected by the former adjudication
directly, or by the declared adherence of this Court to the
doctrines established in that case. The consequence to the parties
on the merits of the case is the same.
But in one view it is material, and that is with regard to the
proof of the exhibits through which Watts the complainant, deduces
his title through the Scots from O'Neal. As Massie, in the former
case (the record of which is made a proof of this) acquiesced in
this deduction of Watts' title, we are of opinion that it is, as to
him and his privies in estate, a point conceded. As to parties and
privies, the principle cannot be contested, and as to
pendente
lite purchasers, it is not necessary to determine the
question, since the only defendants who have appealed from the
decision below, to-wit, Kerr, the Kirkpatricks, Doolittle, and the
Johnsons, claim under purchases made long anterior to this scrip in
Kentucky.
Those defendants certainly were entitled to a plenary defense,
and where they have by their answers put the complainant upon proof
of his allegations as to his deduction of title, the question
arises whether it appears from the record that the deduction of
title was legally proved.
There can be no doubt that this question passed
sub
silentio in the court below, but it does not appear from
anything on the record that the point was waived, and we are not at
liberty to look beyond
Page 19 U. S. 562
the record for the evidence on which the deduction of title was
sustained.
Although we entertain no doubt that exhibits may, on the trial,
be proved by parol testimony, yet a note on the minutes, or on the
exhibit, became indispensable to transmit the fact to this Court,
and as the case furnishes no such memorandum, we must consider the
assignments through which Watts derived his title from O'Neal as
not having been established by evidence. Such was the decision of
this Court in the case of
Drummond v. McGruder.
But Kerr is the only one of these appellants who has expressly
put the complainant on proof of his title. The rest of the
appellants having passed over this subject without any notice in
their answer, the question is whether they waived their right to
call for evidence to prove these exhibits. We are of opinion they
have not, and that the complainant is always bound to prove his
title unless it be admitted by the answer.
There are two principles of a more general nature of which all
the appellants claim the benefit and which, as the cause must go
back, will require consideration.
It is contended that Nathaniel Massie was the acknowledged agent
of both O'Neal and Watts, and that the complainant is precluded by
his acts done in that capacity. This argument is resorted to as
well to fasten on Watts the survey made in his behalf above the
Town of Chilicothe as a relinquishment of all claim to a location
at the place now contended for in his behalf. But in neither of
these views
Page 19 U. S. 563
can this Court apply this principle in favor of the defendants,
for it follows from the principles established for surveying
O'Neal's entry that the survey made by Massie on O'Neal's entry was
illegal and void, and certainly, when employed in locating the
entries made in favor of Powell and himself, Massie was not acting
as the agent of O'Neal or Watts, but as the agent of Powell, or in
fact in his own behalf. The survey on which this argument rests was
at best but partial, and it is conclusive against it to observe
that the powers of Massie as agent of Watts were limited to the
entry and mechanical acts of the survey. The recording of that
survey and all those solemn acts which give it legal validity it
does not appear that his powers extended to. Watts never recognized
that survey or assumed the obligatory effects of it by any act of
his own, and in fact in the event (though not a material
circumstance to the result we come to) it has since been
ascertained that it was not only made off Watts' entry, but on land
appropriated by another.
But it has been contended also that all these surveys actually
made on the military land warrants of Virginia derive the
authenticity and force of judicial acts, or of acts done by the
general agents of the continental officers respectively, from the
superintending and controlling powers vested in the deputations of
officers as the law denominates them, appointed by themselves to
superintend the appropriation of the military reserves set apart
for their use. It is to be presumed, it is contended, that every
survey made by their authorized surveyors was
Page 19 U. S. 564
made under their control and direction. This Court does not feel
itself authorized to raise any such presumption. The powers
actually exercised by those commissioners were limited to very few
objects. The surveying of entries at a very early period became a
judicial subject. And the commissioners, or rather deputations of
officers, never assumed a right to adjust the conflicting interests
of individuals upon the locating and surveying of such entries. To
appoint surveyors to superintend and direct the drawing of lots for
precedence among the locators, to direct the survey for officers
and soldiers not present or not represented, and to determine when
the good lands between the Cumberland and Tennessee should be
exhausted comprehended all the powers with which they were vested.
As individual agents capable of binding their principals, they
appear in one case, and only one, which was when the officer or
soldier was absent and unrepresented. And as to judicial powers,
there is no provision of the act that vests them with a semblance
of such a power, unless it be to judge of the right of priority as
determined by lot. But here also they appear more properly in the
character of ministerial officers discharging a duty without the
least latitude of judgment or discretion. Their powers in nothing
resemble that of the courts of commissioners established through
the back counties of Virginia. As to the subjects submitted to the
boards so constituted, of which military warrants were no part,
those boards were expressly vested with judicial power. But the
powers of the deputations of officers were purely ministerial.
Page 19 U. S. 565
And if it be admitted that they might have exercised the power
of defining the principles on which surveys should have been made,
yet it is certainly incumbent on him who would avail himself of
that power to show that it was exercised and to bring himself
within the rules prescribed by their authority.
Decree reversed as to these appellants and sent back for
further proceedings.
