US SUPREME COURT DECISIONS

An agent who had been employed to perfect the title to a tract of land for his principal, in the course of his agency became acquainted with its deficiency, and having concealed this from the principal, obtained a legal title to the same land for himself. An application was made to the Legislature of Kentucky by the holders of the imperfect title to supply its defects, which was done by a law specially enacted for that purpose. Of this proceeding the agent was informed, and when it was stated to him that his conduct, to the injury of his principal, might be attended with unpleasant consequences to himself, he declared in writing, under his hand, in the presence of two witnesses, that he disavowed an intention to interfere with the title of his principal, and assigned the title he had acquired to him, that the same might be carried into grant. At the same time be was paid $100 for his expenses, &c. In violation of this transfer, he took out a patent for the same land in his name, and a bill was filed in the Circuit Court of Kentucky to compel him to convey the legal title thus acquired to those who held the equitable title, under the act of the legislature of that state.

By the Court:

"The complainants' entry and survey were raised by the legislature into a right to the exclusion of every right, and any patent afterwards issued is"

a nullity. The legal title of the complainants does not rest upon the statute for granting lands, but upon an act of the legislature directing an unregistered survey, inoperative by the lapse of time, to be registered; and a patent to be issued upon it. When this act was passed in favor of the complainants, the land covered by the survey became excepted from the mass of ungranted vacant land, and the complainants acquired rights in it which could not be defeated by a patent to any other person.

If an agent discovers a defect in the title of his principal to land, he cannot misuse it to acquire a title for himself, and if he does, he will be held as a trustee holding for his principal.

The tenants in possession of land of which the complainants claimed a conveyance of the legal title were made parties to the proceeding by an amended bill, the original bill having charged that the land had been occupied by them for ten or twelve years as the tenants of the holders of the legal title. They were not charged with fraud, nor were they placed in any such relation to the land. No case exists as to the tenants for the interference of a court of equity, whether they occupied the lands as the tenants of the holder of the legal title, as declared in the original bill, or as tenants in possession under another; the complainants are to be supposed to have their remedy at law for the recovery of the land until they shall charge and show that the tenants obtained and retain possession in contravention of some equity subsisting between them and the complainants chanrobles.com-red

Page 35 U. S. 270

The facts, as stated in the opinion of the Court, were the following:

The object of this appeal is to reverse the decree of the circuit court by which the appellants were ordered to convey to the appellees, by deeds of release, with covenants of warranty against themselves and their heirs, and those claiming under them, all the right, title, interest and claim which they respectively have to lands embraced by a patent of two thousand acres to Charles Binns, Jr., and the heirs of Timothy Hixon, and their heirs, dated 16 October, 1824.

It appears by the proofs in the cause that a survey of two thousand acres was made on Indian Creek, alias Fox's Run or Mason Run, Henry County, Kentucky, on 20 November, 1797, for John Alexander Binns and Charles Binns by virtue of an entry made 5 August, 1783. The original survey, by accident or from the negligence of an agent of the Binns', to whom it had been sent for such purpose, had never been registered and was lost, but a copy of it was preserved which determined with exactness the locality of the land. It was known as Binns' land in the neighborhood and by those owning the contiguous lands. John Alexander Binns transferred his interest in the survey to Husly Bagges, by whom it was sold to Timothy Hixon, the ancestor of Hixon the appellee. Charles Binns, in August, 1819, appointed John Littlejohn his agent and attorney, with a power of substitution, to attend to this land and his other land in Kentucky, and Littlejohn associated with himself in such agency Burtis Ringo. Ringo, during the agency and particularly whilst acting in concert with Littlejohn and William P. Rogers, to procure a division of the land between the appellees, called upon Rogers to ascertain when a division of the land could be decreed. Rogers told him there was a difficulty in the way, as the survey had not been returned to the register's office, and that no patent had ever been issued for the land. He received the information in May or June, 1822. On 10 July following, he wrote to Littlejohn, and after acknowledging that he had been requested to assist in dividing "Binns' land," he states that he had been at Frankfort; had made search for Binns' patent, but found the return of the survey had not been made, and that no grant had been issued.

He further says he supposed it would be unnecessary to be at any further trouble about it until Mr. Binns had been heard from, as he had written to him if he had a patent, to send it on as soon a possible chanrobles.com-red

Page 35 U. S. 271

to Littlejohn or himself, and he requested Littlejohn to send it to him if Littlejohn should receive it. On the same day he wrote a letter of Binns in which he said, having been requested by Littlejohn to assist him in dividing your lands between you and Mr. Hixon's heirs, he had been in the register's office, and finding that the release of the survey had not been made and that a grant had not been issued, he advised Binns to be at no further expense about it, as it appeared no grant could have issued, and that Binns would be wrong if he thought there was no better right on the land. On 8 July, two days before he had written to Littlejohn and Binns, Ringo had taken from the register's office warrants for five hundred acres and one hundred acres of land and caused entries and surveys to be made upon six hundred acres of the original two thousand acre survey, which had been made for John Alexander Binns and Charles Binns. The surveys were made on 20 July and returned to the register's office in his own name on 24 August. When charged by Littlejohn with the fraudulent attempt upon the rights of those principals and told that application had been made to the Legislature of Kentucky to authorize a patent to be issued upon the original survey on behalf of the Binns's, and that his conduct was known to a committee of the legislature, and might be attended with unpleasant consequences to himself, Ringo, to avoid them and to prevent a most notorious disclosure of his fraud, expressed in writing his willingness that such an act should be passed by the legislature as the complainant had applied for, and gave to Littlejohn, under his hand and seal, a paper, of which the following is a copy:

"Whereas, it has been represented that I, Burtis Ringo, of Fleming County, State of Kentucky, had made two entries and surveys of six hundred acres of land said to belong to John Alexander Binns and Charles, of Virginia, and that the said John A. Binns had sold to Timothy Hixon, now deceased, and that I had extended the surveys for my own benefit, though an agent under John Littlejohn for said Binns, I hereby disavow such intention, and do by these presents assign over all my right, title and interest in the said extends and surveys to Charles Binns and the said heirs of Timothy Hixon, to be carried into a grant at their proper expense, hereby renouncing all claim by virtue of said extends and surveys, and assigning them to the said Binns and Hixon's heirs. As witness my hand and seal this 4 November, 1822."

"BURTIS RINGO [L.S.]"

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"Signed and acknowledged in the presence of us, Daniel Fechlen, John Littlejohn."

Before this instrument was executed by Ringo, Littlejohn agreed to give him one hundred dollars to reimburse the amount he had expended in procuring the warrants and making the surveys of the six hundred acres, paid him fifty dollars in Commonwealth paper, and gave him a note of hand for fifty dollars.

The Legislature of Kentucky acted upon the petition of the complainants, passed an act on 10 December, 1822, recognizing the survey of 20 November, 1797, made on the entries of 5 August, 1783, and the same was carried into a grant in favor of Charles Binns, Jr., and the heirs of Timothy Hixon and their heirs on 16 October, 1824. In the meantime, Ringo, in violation of his transfer of the entries and survey for six hundred acres to Binns and the heirs of Hixon, took out a patent in his own name. The aforegoing facts were charged in the bill of the complainants, were denied by Ringo in his answers, but were established by proof at the hearing. In the original bill, Ringo was the only defendant, but the complainants charge in it that the land had been occupied for ten or twelve years by tenants of Binns. By an amended bill, the tenants, James Elliott, John Collins, John Elliott, James Lawrence, Thomas Watson, Athey Rowe, George Muse, Sr., and George Muse, Jr., were made parties, and stated to be tenants in possession of the land claimed by the defendant, and the complainants make the same prayer against the tenants, as they had against Ringo in the original bill.

The circuit court made the following decree:

"The court being now sufficiently advised of and concerning the premises, doth order and decree that the defendants, Burtis Ringo, James Elliott, John Collins, John Elliott, James Lawrence, Thomas Watson, Athey Rowe, George Muse, Sr., and George Muse, Jr., do, on or before the sixth day of the next term, convey to the complainants, by deeds of release, with covenants of warranty against themselves and their heirs, and those claiming under them, all the right, title, interest, and claim which they respectively have to the lands embraced by the two thousand acre patent to Charles Binns Jr., dated 16 October, 1824, and the writ of habere facias possessionem is awarded the complainants against the said defendants. And it is further ordered and decreed that the defendants pay to the complainants their costs herein expended."

The defendants appealed to this Court. chanrobles.com-red

Page 35 U. S. 279