This cause has its origin in the case decided in this Court between Watts and Massie, in the year 1810.
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 seised 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 and 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 and 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 defence 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 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 in rest, 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 centre 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 and 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 of innocent purchasers, are applicable to the case of these defendants, wherever the facts sustain the defence. 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 entror, 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 and Massie, because neither parties, nor privies, nor pendente lite purchasers.