Opinion
June Term, 1806.
The principle that notice to an agent is notice to his principal, does not apply to the case of surveys of entries of land made by public surveyors in the discharge of their public duties. The rule applies only to cases where there is a special trust or confidence reposed in the agent at the time of the transaction, or after, by the acceptance of the purchase by the principal. Entry-taker's books no notice of an entry having been made.
THIS was a bill in equity, brought by complainant Merril against defendant Sloan, for the purpose of having a tract of land conveyed to the complainant, upon the ground that the defendant had fraudulently procured a grant from the State for the said land. The bill charged that one Thomas White, under whom complainant claimed, had made the first entry of the land, and the defendant, having notice of this entry, entered the land and obtained the grant. The question referred to this Court was whether defendant had notice of Thomas White's entry at any time before he obtained his grant. To show that defendant had notice, three grounds were relied on by complainant: 1. That the surveyor, at the time he surveyed the land for the defendant, had express notice of White's entry; for White went upon the land and told him of the entry and forbade him to return the warrant and certificate of survey to the Secretary of State. That the surveyor in this respect is to be considered the agent of Sloan, the principal, and that notice to the agent is notice to the principal. 2. That the entry of Sloan expressly described (122) the improvement of one Gadbury, which was in truth the improvement of White, who permitted Gadbury to live thereon in consideration of his clearing some of the land and planting some fruit trees; and that this improvement was notice. 3. That the entry-taker's book, containing a description of the land entered, was also notice, for by examining them Sloan could easily have discovered the entry of White.
From Salisbury.
The cases cited by complainant's counsel proving that notice to an agent is deemed in law notice to the principal are not to be controverted; but whilst the Court admit the correctness of the decision in these cases, they think them inapplicable to the case now before the Court, and cannot consider the surveyor in the light of an agent of the defendant. In all cases of constructive notice, it is necessary there should be a special trust and confidence reposed in the agent, either at the time of the particular transaction or after, by the acceptance of the purchase by the principal. The cases cited from Equity Cases Abridged embrace two principles. The first class of cases go to show that if a scrivener or attorney who draws a mortgage to secure the payment of money had notice of a prior mortgage, this shall be constructive notice to the last mortgagee. And why? Because the mortgagee selects the scrivener or attorney from his knowledge of his integrity and candor; and being one of his own choice, the law presumes that whatever is known to such attorney will be fairly and honestly communicated to his client, and that such attorney will not suffer the friend who places this confidence in his integrity, skill and honesty, to be defrauded. The second class of cases show that where the father or other person, having notice that lands were contracted to be sold, purchases the lands and takes a deed to his son and heirs. Here it is said there is no trust or confidence placed in the father by the son, and yet such notice shall affect the son. But it is observable that here the conveyance is merely voluntary, (123) nothing being paid by the son towards this land; and the case of Manull v. Manull, 2 Wills., 613, shows that if persons claiming under a breach of trust have notice of it, they are subject to the same trust. So if the conveyance be voluntary and without valuable consideration. 3 Eq. A. B., 685. Neither of these classes of cases, in the opinion of the Court, ought to govern this case. The first ought not, because the surveyor is a public officer, to whom the individual must resort to have his business transacted, and there is no particular trust or confidence existing between the surveyor and the man who employs him as a public officer to survey an entry of land. The second ought not, because here the defendant was a purchaser for a valuable consideration, and, as he states in his answer, without notice; and notice to the surveyor does not affect him, because not within the reason and grounds upon which notice to an agent is to be deemed notice to the principal.
As to the second ground taken to prove notice to defendant, to wit, that there was an improvement on the land and that Gadbury was residing thereon previous to the entry and survey made by defendant, the Court have looked into the evidence upon this point and find that it was satisfactorily proved that Gadbury contracted with White to live on the land for the consideration expressed in the statement of this case; it was also proved, and by the deposition of Gadbury himself, that he never considered himself the tenant of White, but that he resided on the land in his own right. The Court are of opinion that, although Gadbury made this contract with White, yet, as Gadbury afterwards claimed the land in question in his own right, and there being no evidence whatever to show that defendant ever knew this improvement to belong to White, it ought not to amount to notice to him. For on seeing the improvement and Gadbury residing thereon, his inquiries would naturally be directed to Gadbury respecting the right, (124) and as Gadbury swears that he did not consider the improvement to belong to White, the inference to be drawn would be that it was Gadbury's, and when he abandoned it, might well be entered by defendant without any notice of complainant's equitable title.
The Court are also of opinion that the books of the entry-taker ought not to amount to notice: first, because most entries are made in so loose and vague a manner that they do not furnish any sufficient evidence of the precise land entered; and, secondly, because all the acts of Assembly respecting titles to land, though they do not prescribe a precise and limited time for surveying and obtaining grants, yet hold out the idea of one or two years; or, at least, that the grants should issue within a reasonable time. Iredell's Revisal, 296, 293, 351, 368. It would therefore only direct the attention of the enterer to such entries as had been made within one, two or three years, at most, and ought not to operate in a case like the present, when a lapse of ten or eleven years intervened between the date of White's entry and the time of his obtaining a grant, and especially as White knew of defendant's survey and could have procured a suspension of his grant, and upon a caveat had his right fairly tried by a jury. As no notice is proved on defendant, the bill must be dismissed with costs.