David Josiah Brewer

“ The first plea of the land company recited the fact that three several certificates had been issued by governors of the state of Oregon, to the effect that the road had been completed as required by the act of congress, and added 'that each of said several certificates was made honestly and in good faith, and without any fraudulent intent or procurement or false representation by any person whomsoever.' But upon application to the circuit court this clause in the plea was stricken out, leaving it to contain simply an averment of the certificates of the governors ”

“ But it is not such a fraud as prevents the passing of the legal title by the patents. It follows that to a bill in equity to cancel the patents upon these grounds alone the defense of a bona fide purchaser for value without notice is perfect.'
The land company, therefore, had a right to set up a special plea, and the plea which it did set up-that of a bona fide purchaser-was sufficient, if true. And this brings us to an inquiry as to whether this plea was sustained by the testimony. ”

“ But as it is, wherever enforced, a merely technical and arbitrary rule, justice requires that it should not be carried beyond its express terms, nor used to disprove the good faith, which, in this case, all the other testimony shows in fact existed in the purchasers. And in this respect it is well to consider the obvious reason for the unwillingness of the road company to itself execute a warranty deed. The original act of 1864 said nothing about patents. ”

“ Strong as a plaintiff's 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, or adverse claim to it.' See, also, Lea v. Copper Co., 21 How. 497, 498; Croxall v. Shererd, 5 Wall. 268.
In U.S. v. Burlington & M. R. R. Co., 98 U.S. 334, 342, it was said: 'It [the United States] certainly could not insist upon a cancellation of the patents so as to affect innocent purchasers under the patentees.' And again, in Colorado Coal & Iron Co. ”

“ Having earned the grant by constructing the road, it may well be that the road company took no further interest in it, and an ordinary wagon road, uncared for during 15 years, particularly that part of it which runs through mountainous country, would be almost completely destroyed by the action of the elements ”

“ Before closing this opinion, we think it proper to notice one matter, which, though of no significance in determining the legal rights of the parties, may throw light upon the transaction, and perhaps relieve the original donee of the grant by the state-the road company-from the imputation of wrong cast upon it by the filing of this bill. The grant was made in 1864, and the last certificate of the governor of Oregon was dated the 12th of January, 1870. ”

“ Rep. 892, it was held, in a case coming from Arkansas, and in harmony with the rulings of the supreme court of that state, that while ordinarily a person holding under a quitclaim deed may be presumed to have had knowledge of imperfections in his vendor's title, yet that the rule was not universal, and that one might become a bona fide purchaser for value although holding under a deed of that kind ”

“ It simply granted the lands to the state, and authorized their sale; and only after the arrangement had been made for the purchase of one half of these lands, and the conveyances made therefor, was the act of 1874 passed, providing in terms for patents. ”