Melville Fuller

“ The claim of right of any person under the Rutter and Etting patent was denied, and it was averred that any title which might have once existed under that grant was long since forfeited, and it was further averred that complainant was advised to this effect in the certificate of opinion; and it was denied that the fact that there were persons who claimed under the Rutter and Etting title constituted any cloud on the title to the land purchased by complainant from defendant, or furnished any excuse for complainant's neglecting to carry out his contract. ”

“ At that time Reeder ascertained that there were a number of persons actually living upon portions of the land embraced in the Dillon survey, who claimed title to the land in their possession adverse to Reeder's title; the number of acres claimed by each being comparatively small. C. C. Watts, of West Virginia, had been acting as attorney and agent for Reeder in matters connected with the land for some years, when, on January 23, 1884, he obtained from Reeder an option to purchase it at the rate of $2 per acre at any time before July 1, 1884. ”

“ In entering into the contract, Watts assumed to act not only for himself, but for Reeder, and we accept the ruling of the circuit court that in approving the contract Reeder assented to Watts' agency, and in taking the benefit of the contract would be bound by any conduct on his agent's part which might entitle Clark to a rescission.
In Farrar v. Churchill, 135 U.S. 609, 615, 10 Sup. Ct. 771, we said: 'The general principles applicable to cases of fraudulent representations are well settled. Fraud is never presumed, and where it is alleged the facts sustaining it must be clearly made out. ”

“ That before the agreement was reduced to writing the whole matter was fully discussed, and it was the distinct understanding of Bell and Ferguson and of Watts, as they understood him, that the Dillon patent was the oldest patent covering all embraced within it, and that there would not be any adverse claim set up to any of the land except some junior grantee of some parts of the land, which holdings would not exceed 5,000 acres, and probably not be more than 2,500, the quantity when ascertained to be deducted from the 50,096 acres ”

“ The contract price in the contract of February 29th was fixed at $1.70 per acre, and the contract provided that $10,000-that is, 20 cents an acre on the basis of 50,000 acres-of the purchase money should be paid to Watts, and, if the contract was approved by Reeder, the time for the payment of the $25,000, as provided by the option of February 4th, would be extended. The contract of February 29, 1884, was taken to Baltimore by Watts and Bell, and on March 4, 1884, Reeder indorsed his approval thereon. ”

“ The contract was that Reeder agreed to sell and convey with covenants of special warranty a tract of land containing 50,096 acres, more or less, which tract was granted by Virginia to Edward Dillon by patent dated April 16, 1796, and claimed and owned by Reeder by regular chain of title, the first being a tax deed to Ward and Lawson, dated December 22, 1857; the sale to be a sale by the acre and not in gross ”

“ In the year 1881, and since, said tract of land was charged with taxes in the counties of Boone, Raleigh, and Wyoming as follows: 9,000 acres in Boone, 5,000 acres in Raleigh, and 41,096 acres in Wyoming, making in all 55,096; and said Reeder has paid the taxes so charged on that number of acres from that time to the present. ”

“ In respect to such an action it has been laid down by many authorities that, where the means of knowledge respecting the matters falsely represented are equally open to purchaser and vendor, the former is charged with knowledge of all that by the use of such means he could have ascertained. ”

“ I also find that quite a number of other persons have held and occupied said land as tenants of Ward and Lawson and of said Reeder for more than ten consecutive years, some of them going back to 1864, thereof to the present time, and has proper same as the tenants of said Reeder. ”

“ Reeder that he had showed Judge Ward the sketch and plats Reeder had sent, and Judge Ward told him the Dillon survey was perfect, the best in West Virginia, and that the Duval had never been run; and Watts added that he was satisfied that this was true, and that the Duval was only gotten up for a speculation. We think it does not admit of reasonable doubt that Mr. ”