Boone v. Chiles,
35 U.S. 177 (1835)

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U.S. Supreme Court

Boone v. Chiles, 35 U.S. 10 Pet. 177 177 (1835)

Boone v. Chiles

35 U.S. (10 Pet.) 177


The complainants filed a bill in the Circuit Court of Kentucky, claiming a conveyance of the legal title and an account of rents and profits of a tract of land the legal title to which was derived in virtue of the law of Virginia, under a settlement and a preemption right held by Reuben Searcy. Searcy gave his bond to Hoy to make a deed of one-half of the land to which he was thus entitled, the other half having been given by him to one Martin to obtain the location and patenting. He afterwards gave the plats and surveys to Hoy, who in 1785 obtained a patent for the land, which he was to have a deed for. Hoy, in 1781, assigned the bond of Searcy to George Boone, and made himself surety for its performance, and George Boone assigned the bond to Thomas Boone, the ancestor of the complainants. Thomas Boone lived in the State of Pennsylvania, and was in Kentucky in 1802, 1810, and 1319, in the neighborhood of the land; but while there he took no measures, personally, to obtain the title or possession of it. In 1787, he gave to George Boone a power of attorney to obtain a conveyance of the land, and in 1802 he made a conditional sale of it to Hezekiah Boone, but the condition was not performed by Hezekiah Boone, so that under the agreement he obtained no right to the land. Possession was taken of parts of the land, and improvements made as early as or before, 1806, and the persons in possession are among the defendants. George Boone exceeded his powers and made agreements to sell the land, and also agreed to give up to one of the heirs of Hoy Searcy's bond, and some of the heirs sold parts of the land to the persons in possession, asserting a right to the legal title, and another of the heirs sold by a quitclaim deed all her rights, as one of the heirs of Hoy, to Green Clay. Afterwards William Chiles, alleging that he had obtained from George Boone and from Hezekiah Boone, the conditional purchaser, the equitable right of Thomas Boone, under Searcy's bond, filed in the name of Thomas George, and Hezekiah Boone and in his own name in the County Court oft Bourbon County a bill against the heirs of Hoy, the persons in possession, and

against Green lay, alleging him to be a purchaser with notice of Thomas Boone's equitable title, under Searcy and Hoy, and obtained from that court a decree for a conveyance to him of the legal title, and afterwards a deed for the

same from a commissioner appointed to execute the same. This decree was afterwards, on appeal, reversed for informality, but before the same was reversed, the complainants filed this bill, asking for a conveyance from Chiles of all the title he held in the land, either under the decree or in any other manner. Chiles, after the bill was filed, purchased from Green Clay the rights he held, and in his answer alleges him to have been an innocent purchaser without notice. The persons in possession, who purchased from Chiles after the decree of the Bourbon court, answered asserting their possession and that they were protected by the statute of limitation, and submit to such rules and regulations, according to law and equity, as the case may require. In 1822, Thomas Boone made an agreement with Boone Engles by which the latter took upon him the institution and conducting of this suit for a portion of the benefit to be derived from it, and this the persons in possession

Page 35 U. S. 178

allege to be champerty. The court decreed a conveyance by Chiles and by others who held the legal title to be made to the complainants of all the lands unsold and not in the possession of others, and that those who are in possession, who had purchased from Chiles should pay to the complainants the sums which they had agreed to pay respectively, with interest, according to their respective contracts.

A court of equity must be regardless of all its rules before it can recognize Chiles as a purchaser or as having any right whatever in the land; it must also forfeit its character if it sanctions such a course of iniquitous fraud. We deem it wholly useless to contrast the relative equities of the plaintiffs and Chiles in order to affirm their right for a decree for the conveyance of the legal title, obtained in violation of every principle which governs courts of equity, unless he has made out some objections to the relief prayed on grounds unconnected with the justice of the case.

The heirs of Searcy are not parties; they had no interest in the land; their father's bond was satisfied by the performance of the condition, when the patents were obtained by Hoy, who, by purchase from Martin and Searcy, held the legal title to the whole fourteen hundred acres, subject to be divested only by the equity of Boone, derived by this agreement to transfer the one-half. No act therefore remained to be performed by the heirs of Searcy. The title of Boone becomes complete by the union of his equitable with Hoy's legal title without any interposition of the heirs of Searcy, who have no interest to defend or title to convey.

The lapse of time and the staleness of the plaintiffs' equity is also set up as a bar to a decree in their favor, but whatever effect time may have in equity in favor of a possession long and peaceably held, it can have none in favor of Chiles, whose only claim is under the equity of Thomas Boone, and against whom the present suit was brought in six years after he first interfered with it. It cannot be permitted to him to acquire the legal title of Hoy in virtue of Boone's equity and to hold it to his own use on the ground that Boone's right had become extinct by the lapse of time before he acquired it. The means by which the legal title has been conveyed to Chiles have affected his conscience too deeply with fraud for a court of equity to suffer him to enjoy its fruits. As to him, the plaintiffs have established a right to a decree for the conveyance of whatever title he may have derived by any conveyance to himself directly of the legal right of Hoy's heirs.

By the rules of the appellate court, it can act on no evidence which was not before the court below, or receive any paper that was not used at the hearing.

A party is not allowed to state one case in a bill or answer and make out a different one by proof; the allegata and probata must agree, the latter must support the former.

A purchaser with notice may protect himself under a purchaser by deed without notice, but cannot do it by purchase from one who holds or claims by contract only. The cases are wholly distinct. In the former the purchaser with notice is protected; in the latter he has no standing in equity, for an obvious reason -- that the plaintiffs' elder equity shall prevail unless the defendant can shelter himself under the legal title acquired by one whose conscience was not affected with fraud or notice and who can impart his immunity to a guilty purchaser as the representative of his legal rights fairly acquired by deed in such a manner as exempts him from the jurisdiction of a court of equity. Such a purchase affixes no stain on the conscience, and equity cannot disturb the legal title. But as it does not pass by a contract of purchase without deed, the defendant can acquire only an equity, the transfer of which does not absolve him from the consequences of his first fraudulent purchase. His second purchase of an equity will not avail him more than the first,

Page 35 U. S. 179

for the original notice of the plaintiffs equity taints his conscience so as to make him a mere trustee if he holds the legal title from one who is not an innocent, bona fide purchaser. It is a general principle in courts of equity that where both parties claim by an equitable title, the one who is prior in time is deemed the better in right, and that where the equities are equal in point of merit, the law prevails.

Strong as a plaintiffs equity may be, it can in no case be stronger than that of a purchaser who has put himself in peril by purchasing a title and paying a valuable consideration without notice of any defect in it, and when in addition he shows a legal title from one seized and possessed of the property purchased, he has a right to demand protection and relief, which a court of equity imparts liberally. Such suitors are its most especial favorites. It will not inquire how he may have obtained a statute, mortgage, encumbrance, or even a satisfied legal term, by which he can defend himself at law, if outstanding; equity will not aid his adversary in taking from him the tabula in nonfragio if acquired before a decree. Relief will not be granted against him in favor of the widow or orphan, nor shall the heir see the title papers. It is a bar to a bill to perpetuate testimony, or for discovery, and goes to the jurisdiction of the court over him; his conscience being clear, any adversary must be left to his remedy at law.

But this will not be done on mere averment or allegation; the protection of such bona fide purchase is necessary only when the plaintiff has a prior equity which can be barred or avoided only by the union of the legal title with an equity arising from the payment of the money and receiving the conveyance without notice and a clear conscience.

In setting it up a bona fide purchase without notice by plea or answer, it must state the deed of purchase, the date, parties, and contents briefly; that the vender was seized in fee and in possession; the consideration must be stated with a distinct averment that it was bona fide and truly paid, independently of the recital in the deed. Notice must be denied previous to and down to the time of paying the money and the delivery of the deed, and if notice is specially charged, the denial must be of all circumstances referred to from which notice can be inferred, and the answer or plea must show how the grantor acquired title. The title purchased must be apparently perfect, good at law, a vested estate in fee simple. It must be a regular conveyance, for the purchaser of an equitable title holds it subject to the equities upon it in the hands of the vendor, and has no better standing in a court of equity. Such is the case which must be stated to give the defendant the benefit of an answer or plea of an innocent purchase without notice; the case stated must be made out; evidence will not be permitted to be given of any other matter not set out.

The objections to the plaintiffs recovery on the ground of the contract between Thomas Boone and Boon Engles being within the statutes of champerty and maintenance cannot be sustained for two reasons. 1. The English statutes on this subject, which were adopted in Kentucky, punished the offense and declared the contract for maintenance void between the parties, but did not direct or authorize the dismissal of the suit instituted between other parties in furtherance of such contract. Boon Engles is no party to this suit, and it does not concern the defendants whether it was commenced and is conducted by his agency or by the plaintiffs themselves; the right of plaintiffs is not forfeited by such an agreement, and it may be asserted against the defendants whether the

contract with Boon Engles is valid or void. 2. By the act of Kentucky of 1798, which was in force when this contract was made and suit brought, no person

could be prevented from prosecuting or defending any claim

Page 35 U. S. 180

to land held under the land laws of Virginia; nor was any suit brought to make

good such claim considered as coming within the provisions of the common law or any statute against champerty or maintenance. These statutes were not revived till 1824.

The time does not bar a direct trust as between trustees and cestui que trust till it is disavowed; yet where a constructive trust is made out in equity, time protects the trustee, though his conduct was originally fraudulent and his purchase would have been repudiated for fraud. So where a party takes possession in his own right and was prima facie owner, and is turned into a trustee by matter of evidence merely. And where one intending to purchase the entire interest in the land, took a conveyance without words of limitation to his heirs passing only an estate for life, the lapse of fourteen years after the expiration of the life estate was a protection to the heirs of the purchaser.

What that reasonable time is within which a constructive trust can be enforced depends on the circumstances of the case, but there can be few cases where it can be done after twenty years' peaceable possession by the person who claims in his own right, but whose acts have made him a trustee by implication. His possession entitles him to at least the same protection as that of a direct trustee who, to the plaintiffs knowledge, disavows the trust and holds adversely, as to whom the time runs from the disavowal because his possession is thence forth adverse. The possession of land is notice of a claim to it by the possessor; if not taken and held by contract or purchase, it is from its inception, adverse to all the world, and in twenty years bars the owner in law and in equity. A purchaser in possession by a contract to sell is in law a trespasser, but in equity, he is the owner of the estate, having taken possession under the contract, and the vendor is in the situation of an equitable mortgagor. If the entry was by purchase, and the purchaser claims the land in fee, he is not a trustee; his title, though derivative from and consistent with the original title of the plaintiffs, is a present claim in exclusion of and adverse to it. A vendee in fee derives his title from the vendor, but his title, though derivative, is adverse to that of the

vendor; he enters and holds for himself. Such was the doctrine of this Court in Blights lessee v. Rochester, 4 Pet. 506-507. In that case, the Court said "The vendee acquires the property for himself, and his faith is not pledged to maintain the title of the vendor."

Equity makes the vendor without deed a trustee to the vendee for the conveyance of the title; the vendee is a trustee for the payment of the purchase money and the performance of the terms of the purchase. But a vendee is in no case a trustee of the vendor as to the possession of the property sold; the vendee claims and holds it in his own right, for his own benefit, subject to no right of the vendor save the terms which the contract imposes; his possession is therefore adverse as to the property but friendly as to the performance of the conditions of the purchase.

The principal facts of this case were the following:

Reuben Searcy, being entitled to a settlement of four hundred acres of land and a preemption of one thousand acres in Bourbon County, Kentucky, under the laws of Virginia, obtained a certificate

Page 35 U. S. 181

thereof from the commissioners, and he employed one John Martin to perfect the title to the lands and gave him one-half of the same for so doing. On 24 September, 1781, Searcy sold seven hundred acres, supposed to be one-half of the land, to William Hoy, and executed a bond to Hoy. The bond was in the following words:

"Know all men by these presents that I, Reuben Searcy, of the County of Fayette, am held and firmly bound unto William Hoy, of the County of Lincoln and State of Virginia, in the penal sum of fifty thousand pounds, current money of Virginia, to which payment well and truly to be made I bind myself, my heirs, executors, and administrators unto the said William Hoy, he, his heirs, or assigns, this 24 September, 1781. The condition of the above is such that if the above-bound Reuben Searcy shall well and truly make or cause to be made, as soon as deeds are made to lands in this county in general, a good and sufficient deed for seven hundred acres of first-rate land lying in Fayette County, on Licking Creek, between John Martin's Station and Ruddle's Station, it being part of a settlement and preemption that John Martin cleared out on the halves for said Reuben Searcy, and the said Hoy takes his first choice of the land, then the above obligation to be void, otherwise to remain and be in full force and virtue."

On 15 December, 1781 William Hoy made the following assignment to George Boone of this bond by an endorsement thereon:

"I, William Hoy, assign over the within bond unto George Boone, his heirs, or assigns, and said Hoy obliges himself, his heirs, executors, and administrators, as surety to within bond, and if the within lands cannot be obtained by reason of a prior claim, then and in that case seven hundred acres equal in quality and convenience shall discharge the within bond."

Searcy also assigned the plats and certificates of survey to Hoy, who was thus enabled, in July, 1785, to complete the title by obtaining patents for the land in his own name. On 30 April, 1785, George Boone made the following assignment of the bond to Thomas Boone, the ancestor of the appellants, who are his heirs:

Page 35 U. S. 182

"I do hereby assign over all my right, title, and claim of the within bond unto Thomas Boone, heirs, or assigns, without recourse to the same; that is to say that I, the said George Boone, am no way obligated if the said William Hoy or his heirs sufficient to make good the within bond; but if the said William Hoy or his heirs should not be good, then I, George Boone, do bind myself, my heirs, to make good the same unto the said Thomas Boone or his heirs or assigns."

On 25 January, 1823, Thomas Boone filed a bill in the Circuit Court of the United States for the District of Kentucky stating his equitable right, thus derived, to seven hundred acres of land, part of the settlement and preemption of Searcy, alleging that he had never parted with the same, but admitting that he made a conditional contract with Hezekiah Boone for it which was never complied with by said Hezekiah, and was afterwards expressly abandoned by him.

On 1 October, 1787, Thomas Boone, who resided in the State of Pennsylvania, gave to George Boone a power of attorney in the following terms:

"Know all men by these presents, that I, Thomas Boone, of Oly Township in the County of Berks and Commonwealth of Pennsylvania, blacksmith, for divers good causes me hereunto moving, hath constituted and appointed and by these presents do constitute and appoint my trusty friend, George Boone, of Madison County in the settlement of Kentucky and Commonwealth of Virginia, yeoman, my true and lawful attorney, for me and in my name and to my use, to ask, demand, sue for and recover of and from Major William Hoy, of Kentucky settlement, a deed or other lawful conveyance, valid in law, for seven hundred acres of land in or near the waters of Hinkson and Stoner, branches of Licking River, it being one-half or moiety of a settlement and preemption right belonging to a certain Reuben Searcy, and which I purchased from squire Boone, who purchased the same from said George Boone, who purchased the same from said William Hoy, hereby giving and granting my sole power and authority to my said attorney concerning the premises, to do or cause to be done therein as amply as I myself might or could do were I personally present, and on the obtaining said title and

Page 35 U. S. 183

conveyance for me and in my name, sufficient discharges to sign, seal, and deliver, and one or more attorney or attorneys under him, to substitute and appoint, and at pleasure to revoke, hereby ratifying and confirming whatsoever my said attorney shall lawfully do concerning the premises. In witness whereof I have hereunto set my hand and seal this 1 October, 1787."

The bill charges that William Chiles instituted a suit in the Bourbon Circuit Court of Kentucky, without the knowledge or consent of Thomas Boone, in the name of Thomas Boone, William Chiles, Hezekiah and George Boone, against the heirs of William Hoy and against others in possession of the land to compel the execution of a conveyance of the seven hundred acres of land: that in the suit, Chiles, alleging the execution of the bond by Searcy and the assignments before stated, pretended that under the conditional contract between Thomas and Hezekiah Boone, the latter had become entitled to the land, and that he had purchased it from said Hezekiah. In the suit a decree was pronounced for a conveyance to be made to Chiles, and on 7 January 1822, a commissioner appointed by the court according to the laws of Kentucky executed a conveyance to Chiles for seven hundred acres of the land in conformity with the decree.

In the proceedings in the Bourbon court, William Chiles made Green Clay a defendant, alleging him to be a purchaser from Newland and wife of two-eighths of the land, he having notice of Thomas Boone's rights. The wife of Newland was one of Hoy's heirs. After the decree, he purchased from Green Clay all he held under Newland and wife, and in this case he relies on the title obtained under that purchase.

Hezekiah Boone, by his answer, asserts a right to the land under the conditional contract, but no proof of a compliance with the same was given in the cause, and it was in evidence that long after the contract, he acknowledged he had no right to the land and that it belonged to Thomas Boone.

Some of the defendants in the circuit court allege that George Boone, as attorney in fact for Thomas Boone, in August. 1792, assigned Searcy's bond to a certain John South and delivered the bond to him. John South was the executor of William Hoy,

Page 35 U. S. 184

and had married one of his daughters, and South sold to some of the defendants parts of the land, under a pretense that he held Hoy's claim, and they insist that the assignment of Searcy's bond shall enure to their benefit.

It was in evidence that William Chiles, after the death of John South, applied to Benjamin South, who had the custody of Searcy's bond, and by an arrangement with him the assignment to John South was erased and cancelled and the bond was transferred to Chiles. This was prior to the institution of the suit in the Bourbon County Court, and the bond was filed among the proceedings in the cause.

The defendants also set up by way of defense that an agreement in writing, of which a copy is filed, was made between Thomas Boone and Boon Engles in December, 1822, by which Engles undertook at his own expense to prosecute a suit for the 700 acres of land in dispute, and, as a consideration for his trouble, &c., was to have one-half of the land. This suit, they allege, is prosecuted under that agreement, and they charge that it is therefore a case of champerty and maintenance forbidden by law, and in which the court can give no relief. The complainants reply that at the time of the agreement, the law of champerty and maintenance was not in force in Kentucky, and that if it was, this case does not fall within its scope.

During the pendency of this suit in the Circuit Court of Kentucky, the defendants in the suit in the Bourbon Circuit Court instituted as aforesaid in the name of Chiles and the Boones prosecuted a writ of error from the Court of Appeals of Kentucky to reverse the decree obtained in that suit. And the Court of Appeals accordingly did reverse the decree for want of proper parties, and remanded to cause to the Bourbon Circuit Court for further proceedings. The cause is still pending there, Chiles and the heirs of Thomas Boone respectively claiming a right to direct its future prosecution.

By amended pleadings, the complainants allege the reversal of the decree of the Bourbon County Court, and the heirs of George Boone were made defendants. They also allege that the heirs of George Boon assert no claim to the land and that Searcy is dead, having left no heirs known to the complainants.

Page 35 U. S. 185

During the proceedings in the circuit court and in this situation of the same, a question of jurisdiction arose, and the judges being divided in opinion, the cause was adjourned according to law to the Supreme Court with the following statement of the points respecting which the judges were divided in opinion:

"1. The court being then divided, and the judges opposed in opinion as to the jurisdiction over the case and unable therefore to render a decree on the merits, they resolve to adjourn that question to the Supreme Court, to-wit, under all circumstances appearing as above, can this Court entertain cognizance of the case?"

"2. The judges were also opposed in opinion on the point whether the complainants were entitled to a decree in the absence of any proof that the persons made defendants in the amended bill, as heirs of George Boone, were in fact his heirs."

The cause came on upon this adjournment of it before the Supreme Court at the January term, 1834, and this Court, in its mandate to the Kentucky Circuit Court, certifies its opinion on the questions submitted to it as follows:

"The Court is of opinion,"

"1. That under the circumstances stated in the certificate of the judges, the said circuit court could entertain cognizance of the case."

"2. That the want of proof that the persons made defendants in the amended bill as the heirs of George Boone were in fact his heirs is no obstruction to a decree on the merits of the cause."

It appears on the record that William Chiles, besides the conveyance executed to him by the commissioner appointed by the Bourbon Circuit Court of the interest of all the heirs of Hoy, obtained a special conveyance, prior to the institution of the Bourbon suit, from William Hoy the son, and his wife, and John Sappington and Parthenia, his wife, who were two of the heirs of William Hoy the obligor. And in Chiles' bill filed in the Circuit Court of Bourbon, he charges G. Clay to have obtained the interest of Newland and wife, as one of the heirs of W. Hoy, with full notice of his (Chiles') claim -- in other words, with full notice of the claim of Thomas Boone's heirs, and that he, G. Clay, upon receiving a conveyance from them, bound himself by special contract to make good all the contracts of their ancestor.

Green Clay filed his answer to the bill of Chiles and others

Page 35 U. S. 186

in the Bourbon Circuit Court, in which answer he does not allege that he has obtained the legal title from Newland and wife, he does not allege that he has obtained any title from them, but refers to a contract by which he acquired their interest and, without producing it, refers to it as being of record.

The heirs of John South, of George Boone, and of Hezekiah Boone were made defendants, and most of them answered, but the complainants allege they are only formal parties.

One object of the suit is to annul the contract between Hezekiah Boone and Thomas Boone, but the main purpose of it is to obtain the legal title to and possession of the 700 acres of land in contest, which is vested in W. Chiles and the heirs of W. Hoy and which Chiles, as is alleged, fraudulently acquired first, by possessing himself of the bond of R. Searcy, the property of Thomas Boone, and secondly by prosecuting the suit in chancery in the Bourbon Circuit Court in the name of Thomas Boone and others, and lastly by obtaining from two of the heirs of Hoy and from Green Clay conveyances.

Upon the return of the cause to the circuit court in May 1834, that court pronounced a final decree, by which the defendant, Chiles, was decreed, by deed of release with special warranty to convey to the complainant all his title and interest in the land in controversy except that which he held under a deed from Green Clay, who the court states was a purchaser for a valuable consideration from Newland and wife (she being one of the heirs or devisees of W. Hoy, in whom the legal title was), and who conveyed to Chiles the title which he (Clay) had so acquired. The court also decreed that Chiles should deliver to the clerk of the court, to be cancelled, the contract between him and Hezekiah Boone and George Boone, attorneys in fact for Thomas Boone, as it appeared to the court that the contract was made without authority and that its terms had never been complied with by Hezekiah Boone. The court further decreed (having previously caused an adjustment to be made of one-half of the rents and profits of the land and one-half of the value of the improvements) the tenants in possession to pay the several balances which appeared to be due from them. As to so much of the land as was claimed by John Evalt, one of the defendants, within the

Page 35 U. S. 187

bounds of Flournoy's patent and which is described in the decree, the court dismissed the bill, as Evalt, and those under whom he claims, had more than twenty years adverse possession. The court further decreed that the claim of the complainants is not to be prejudiced by the decree in this cause as to any of the heirs of Hoy who are not parties to the suit. The court likewise decreed that Jones Hoy and Fanny, by her guardian ad litem, do convey all their interest, &c., in the land, as heirs or devisees of William Hoy. And finally the court directed the clerk, as commissioner, to convey in default of conveyances being made by the defendants, according to the statute of Kentucky, and possession to be delivered by a fixed day.

From this decree both parties appealed and entered into the requisite bonds for the due prosecution of their respective appeals.

Page 35 U. S. 199

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