Kerr Et Al. v. Watts

February 15th. The Attorney-General and Mr. Scott, for the appellants, argued, (1.) that the survey made for Powell ought to be established, because made under the superintendance of officers to whom the State of Virginia had deputed the sovereign and exclusive authority to regulate such surveys, similar to the powers of commissioners to adjust pre-emption rights: and that their determination was conclusive, being an inseparable condition annexed to the grant from the State. 2 Vent. 365; 3 Ch. Cas. 135. The existence and power of these agents has been recognised by the Court. Wallace v. Anderson, 5 Wheat. 291. (2.) The appellant, Kerr, is an innocent purchaser without notice, who holds the legal estate with superior equity, and therefore cannot be disturbed by the alleged equity of Watts. The cause having been set down for hearing on the bill and answers, his answer is conclusive evidence as to every fact which it states (Wheat. Dig. tit. Chancery, pl. 142; Leeds v. Marine Ins. Co., 2 Wheat. 380), and it does state that at the filing of the bill he had the legal title; and that before either party purchased, the entries had been surveyed, and become matters of record. A survey returned and recorded is notice. 3 Binn. 118. He is not affected by the supposed fraud of Massie, in making Powell's survey. Massie was only one of several mesne purchasers of Powell's rights; and if Powell, the original holder, was innocent, a subsequent purchaser under him has a right to the shield of his innocence, even though such purchaser had notice. 2 Atk. 242; 11 Ves. 478; Sugd. on Vend. 438. Nor is the appellant a lite pendente purchaser, because the former suit was brought in Kentucky, out of the jurisdiction where the land lies. 2 P. Wms. 482. The rule is borrowed from the common law; and its analogies must, therefore, be pursued. A verdict and judgment at law, or a decree in equity, affecting the title to land, are local in their nature. The lis pendens must be on the question of title directly, and not incidentally. The principle is confined to those who attempt to originate a title pendente lite; and is never extended to those who had acquired a title previously, and who ought, therefore, to have been made parties to the lis pendens. Its policy is to prevent the parties from alienating, and thus evading the justice of the Court. Even if the appellant had no legal title, but had only the better right to call for it, he could not be affected in equity by the pendency of the former suit. 2 Vern. 599. Nor is he bound as privy to the former decree. No person can be bound as such, who ought to have been made a party: as to all who ought to have been parties, such a decree is considered as a fraud. 1 Binn. 217; 2 Ibid. 40, 455; 3 Ibid. 114. Those only are privies, who acquire this interest subsequent to the institution of the suit, by the decree in which they are sought to be affected. Besides, the question here is substantially different from that which arose in the former case. There it was as to the responsibility of an agent to his principal, for an alleged fraud. Here it is as to the dispossession of a bona fide purchaser.