St. Johns, New Brunswick. Charter-party was dated at Liverpool on the 9th day of September, 1861, and the principal stipulation as to the voy age was that the ship should proceed off the Port of Savannah, and if the blockade was raised, then to proceed into port and deliver the cargo as per bill of lading; but if the blockade was not raised, then the ship was to proceed to St. Johns, New Brunswick, and there to deliver the same with the usual dispatch of the port. Stipulated freight was thirty shillings per ton if the cargo should be landed at Savannah, and fifteen shillings per ton if landed at St. Johns, for which latter port the vessel was cleared, as represented in the clearance certificate. Charterers furnished the cargo, but the owners were to have an absolute lien on the same for all freight, dead freight, primage and demurrage. Vessel sailed for the Port of Savannah, and there is not a fact or circumstance in the case tending to show that her primary destination was such, or was ever intended to be such, as is described in the clearance. On the contrary, the owners, in their letter of instructions to the master, admit that the charterers, being anxious to procure a particular cargo from Savannah, made it a condition in taking the ship that she should proceed off that port, so that if the port was open they might secure the very first shipment. When the ship sailed the mate supposed that she was bound for St. Johns, but he soon found, as he states, that she was going too far to the southward for such a voyage, and he at once began to suspect that the master intended to go into a southern port. Master's instructions evidently contemplated that the ship might speak other vessels as she approached the coast of the United States, and that the master would be enabled through those means to ascertain the exact state of affairs; but the master was not directed in any event to abandon the voyage and return.

and the owners had full knowledge of the existence of the blockade at the inception of the voyage, and there can be no doubt that it was the knowledge of that fact which induced the parties to commence the voyage under a clearance which misrepresented the primary destination of the vessel.

3. Settled rule as established by a majority of this court is, that a vessel which has a full knowledge of the existence of a blockade is liable to capture if she attempts to enter the blockaded port in violation of the blockade regulations; and that it is no defense against an arrest made under such circumstances that the vessel arrested had not been previously warned of the blockade, nor that such previous warning had not been indorsed on her register. The Hiaratha, 2 Black, 677 [67 U. S., XVII., 479]. 4. Unlike what is usual in cases of this description it is conceded in this case that the primary destination of the vessel was to the blockaded port; but it is insisted that the mere act of sailing to a port which is blockaded at the time the voyage is commenced is not an offense against the law of nations where there is no premeditated intention of breaking the blockade. Take the proposition as stated, and it is undoubtedly correct; but it is equally well estab lished that it is illegal for a ship having knowledge of the existence of a blockade to attempt to enter a blockaded port in violation of the blockade, and this court decided at the last term that after notification of a blockade the act of sailing for a blockaded port with the intention of violating the blockade is in itself illegal. The Circassian, 2 Wall., 135 [69 U. S., XVII., 796]: The Neptunus, 2 C. Rob., 110; Medeiros v. Hill, 8 Bing., 234; The Panaghia Rhomba, 12 Moore, P. Č., 168.

5. But it is unnecessary even to consider any extreme rule in this case, as every pretense of innocence is negatived by the circumstances. Substance of the directions in that event was Fraud is stamped upon the adventure from the that he was to be guided by any information he commencement of the voyage to the moment of might thus obtain, so as not to infringe the block- capture. Such a misrepresentation as that exade regulations, but the clear inference from pressed in the clearance might be used to adthe document is that the ship was nevertheless vantage by the master, if his vessel was met by to proceed off the blockaded port, and then if a cruiser in mid ocean, as a means to allay susmet by a blockading vessel to get the officer in picion, and it was doubtless intended for some command to indorse on the register that the such purpose. While sailing for the blockaded ship had been warned off. Specific directions port such a document might be very effectual to the master are that he is to run no risk with to enable the master before he had passed the the ship, but he is to proceed on the voyage and port of pretended destination to deceive belligrather endeavor to satisfy himself as to the block- erents and elude the vigilance of their cruisers. ade, and then find the blockading vessel and get Successful use of that means of deception, howhis register indorsed. Cautious as these instruc- ever, could not be made at the time of the capttions are, still there is enough in them to show ure, because the vessel was then off Tybee Islthe criminal motives of their authors, especially and, more than a thousand miles from the propwhen it is considered that the ship, under the er course to the port specified in the clearance. eye of the owners, sailed from the port of de- Seeing that such a pretense would not be likely parture under a clearance expressing a false des- to avail, the master did not present the certifitination. Shippers doubtless expected consid-cate of clearance, but resorted to the terms of erable profits from the sale of the outward cargo; but their controlling motives in chartering the ship were the anticipated profits of the return voyage from the blockaded port. Shipowners were also deeply interested in the success of the adventure, as they were to receive double the amount for freight if the outward cargo was landed at the port of primary destination. Full proof of these facts is exhibited in the record, and it is shown beyond the possibility of doubt that the master, the charterers

the charter party and the letter of instructions, and insisted that those showed that the vessel did not intend to violate the blockade regulations. Arrested, as the ship was, when near the blockaded port, and when heading for the land, and when in point of fact she was in the act of entering the port, the master then, instead of presenting the clearance for the port which he had passed, set up the pretense that his purpose was to inquire whether the block. ade had been raised, and claimed that he must

be first notified of a fact, which he knew when |
the ship sailed, before the capture could law
fully be made. Such a defense is without mer-
it, and finds no support in any decided case, or
in any acknowledged principle applicable to
prize adjudications.

Inculpatory force of the evidence is much increased by the fact that the inception of the voyage is marked by a full knowledge of the existence of the blockade; and that the vessel, instead of touching at the port for which she was properly cleared, where inquiry might have been made, proceeded directly for the prohibited destination. Conduct of the master, also, in withholding from the mate all knowledge of the real destination of the vessel, shows that the clearance certificate was evidently obtained in the form referred to as the means, if it became necessary to use it for that purpose, of deceiving belligerents and of eluding the vigilance of national cruisers. None of these circumstances can be successfully controverted; and the claimants admit that the course of the vessel was directly for the blockaded port, and that she was heading for the land at the moment of capture. Every pretense that the vessel intended to desist from her unlawful purpose, if she found that the port was blockaded, is negatived by the circumstances. Those in charge of her knew before she sailed that the port was blockaded; and they also knew that they had no reason to suppose that it was to be raised before her ar rival; consequently they made no inquiry and did not wish to make any until it became necessary to do so as a defense or excuse for an illegal act.

Decree, affirmed.

Affig.-S. P., 3 Wali., Jr., 361.

Cited 16 Wall., 342; 99 U. S., 35; 101 U. S., 458.

THE UNITED STATES, Appts.,

v.

JOSEFA DE HARO ET AL.,

AND

D. MAHONEY, Intervenor (in the case
JOSEFA DE HARO ET AL.), Appt.,

v.

THE UNITED STATES.

heirs of De Haro. The boundaries as described in the diseño annexed to the grant, would include a much larger quantity; all of which was claimed by the heirs. The district court, affirming the decision of the Board of Commissioners, confirmed their title to the extent only of "Half a square league, being one league from north to south, and half a league from east to west, to be located according to and within the calls of the original grant, etc., regard being had to the occupation of the original grantee and the ancestor of the present claimant."

While the case was pending before the Board, a preliminary survey was made, at the sugges tion of the heirs, by the Surveyor-General. This survey exhibited a plat not only of the outside boundary of the diseño, but also those of the half league selected out of the whole, in case they could get no more. In 1853 the surveyor caused the sobrante or overplus land outside of the half league to be surveyed into sections as public lands. These sections have been settled and improved by parties claiming under the government. On the 18th June, 1862, the district court, after a full hearing of the parties, ordered a survey to be made in accordance with the election of the claimants made in 1853, "As evidenced by the plat of a survey of said lands by Leander Ransom, United States Deputy-Surveyor," etc. The question, whether such an election had been made, was disputed and fully examined by the court, as is shown by the opinion of the learned judge on the record. His reasons for the conclusions he arrived at need not be repeated. Suffice it to say, they fully demonstrate the correctness of the order made by the court.

The survey of Ransom conformed to all the calls of the decree, except that it did not include an abandoned improvement and building once made by Galindo, the original grantee. De Haro, who purchased from him, made his settlement and possession on another portion of the tract described in the diseño. He certainly had a right to do so; and his heirs, in selecting the best land for their half league, had a right to exclude the abandoned possession of Galindo. The land described by them included the "actof ual occupation of their ancestor," and was in the form prescribed by the decree of the court. To include the abandoned occupation of Galindo, it would not conform to the other calls of the decree.

Survey not set aside, where rights of other parties intervened.

Where a survey is made of a half league from a larger quantity, as selected by the claimant, it will not be set aside upon the application of his grantee, because it did not conform to one of the calls of the grant, where the overplus has been surveyed into lots and settled and improved by parties claiming under the government.

[Nos. 81 and 146.]
Argued Dec. 28, 1865. Decided Jan. 15, 1866.
PPEALS from the District Court of the
United States for the Northern District of
California.

AF

The case is stated by the court.

Mr. Justice Grier delivered the opinion of the court:

The only question on these cases is, as to the location of the half league confirmed to the

A survey, made according to this order or decree, ought to have satisfied all parties, as it did justice to all concerned. But, as nine years had elapsed since the Ransom survey was made, the state of the country in this region was much changed, and a new party intervened. Mahoney had purchased the title of the heirs of De Haro, and the claimant under the United States had made valuable improvements. If this new under whom he claimed, and make a new party could set aside the election made by those selection covering the improvements made by those claimants, it is not doubted he could have made a selection more satisfactory to himself, at the expense of the other claimants.

Soon after the date of this order or decree, of the court, David Mahoney intervenes and petitions the court for a rehearing. In this petition he impugns the decision of the court as to the Ransom survey, denies that it was sanc

tioned by the heirs, and alleges fraud in the sectionizing" the lands by the public officers. The court on this petition, reconsidered their decree, and made another on the 27th of June, 1863, according to another survey made on the 15th of June preceding. This survey is objected to by all the parties interested; by the United States, because it covers land claimed by settlers and purchasers from the government; and by Mahoney, because it does not include more of the land so occupied and improved.

This change of location is made, not because the selection made in 1853 was not made by consent of the heirs, or because the fraud charged upon the public officers was proved or ought to affect the title for those claiming under the government, but because the land selected by them did not include the abandoned settlement made by Galindo.

Now, if the heirs had a right to select within the boundaries of the original diseño; if their selection conformed to all the other calls of the decree, as to the length and breadth of the half league, and included the portion occupied by De Haro, their ancestor, no one had a right to complain if they rejected the abandoned occupation of Galindo. north to south and half a league from east to A tract, one league from west, including the land occupied by De Haro, cannot be made to include the other calls of the decree.

We are of opinion, therefore, that the decree or order made on the 27th of June, 1863, should be set aside, and that made on the 18th day of June, 1862, be confirmed, and that the appeal of Mahoney be dismissed.

GEORGE SMITH, Appt.,

v.

JOHN J. ORTON.

Lands conveyed as security-transfer of equitable title-assignee of bond takes, subject to equities between the parties-what necessary to protect bona fide purchaser-sale of lands by parol promissory notes evidence that payee is not indebted to maker-judgments only conclu. sive as between parties or privies.

Where lands have been conveyed as security, when the terms of the security have been fulfilled, the title to the lands belongs in equity to the grantor, for whom the grantee holds the same in

trust.

A transfer of such equitable title carries good

title to the lands as against one who is not a bona fide purchaser without notice.

An assignee of a bond takes it subject to all the equities of the original debtor or obligor. To bring a case within the rule which affords protection to a bona fide purchaser without notice, the conveyance must be by deed, and the vendor must be seised of the legal title, and the purchase money must in fact have been paid before notice. Where a sale of an interest in lands was by parol, and nothing in fact was paid, such sale is ineffectual.

Promissory notes given, are prima facie evidence that at the making of the notes the payee was not

indebted to the maker.

Judgments or decrees are not conclusive except as to the parties to them or their privies. [No. 80.] Decided Jan. 15, 1866.

Argued Dec. 26, 1865.

DEC. TERM,

59 U. S. (XV.), 393, and 62 U. S. (XVI.), 104.
The case is stated by the court. See, also,
Mr. James S. Brown, for appellant.
Mr. H. S. Orton, for appellee:

8, it was merely an implied and resulting trust
1. If Hubbard had any interest in lots 7 and
resting in parol, and cannot be set up to defeat
or prejudice the title of a purchaser, for a val-
uable consideration, and without notice of such
trust.

Rev. Stat. of Wis., for 1849, p. 318, sec. 10. Knab to Butler and assigned to Orton, declared 2. The bill prays to have the bond from fraudulent and void; and thus makes an affirmative allegation of fraud, which cannot be presumed, but must be strictly proved. 1 Story, Eq., sec. 190.

3. The most that can be claimed by the comlots 7 and 8, he was trustee for Hubbard. Then plainant is, that when Knab held the deed of if Knab, thus holding the legal title, gives a bond to convey to Butler, with or without the consent of his cestui que trust, he will be required to perform his agreement in specie.

Buller, 10 Ves., 314; Hyde v. Kelley, 10 Ohio, Hall v. Warren, 9 Ves., 605: Mortlock v. Murray v. Ballou, 1 Johns. Ch., 566; Edwards 215; Champion v. Brown, 6 Johns. Ch., 398; v. Van Bibber, 1 Leigh., 183; Hines v. Baine, 1 Smedes & M. Ch., 530.

others, and finally in the names of Knab and 4. If Hubbard kept his title in the names of Butler, and kept his interest in the property concealed by this means to defraud his creditors, he has no remedy, nor has his grantee, even against the party thus fraudulently holding the title.

Warburton v. Aken, 1 McLean, 460.

5. Much less has Hubbard or his grantee a remedy against an intervening purchaser, without notice of the legal title.

A bona fide purchaser without notice from a to defraud creditors, is entitled to hold the grantee to whom property has been conveyed same even against the creditors of the grantor. Bean v. Smith, 2 Mason, 252.

ment, that Butler obtained the bond from Knab 6. Conceding, for the purpose of the arguin fraud of Hubbard, and that he obtained it fraudulently of Knab, and thus became, ostenformance of the conditions of the Schram bond, sibly, the owner of the property upon the perthen, if Butler sold the property and assigned the bond of Orton for a valuable consideration, the parties, Orton will be protected in the enand Orton had no notice of the fraud between joyment of the title.

eration, without notice of any fraud in the
A bona fide purchaser for a valuable consid-
grantee to his vendor, shall hold the estate
against the original grantor and his heirs.

Peck, 6 Cranch, 133.
Dexter v. Harris, 2 Mason, 531; Fletcher v.

the paper title in the hands of another, stands
7. If Hubbard, holding an adverse title to
by silently and is apprised that a purchaser is
protected.
buying the paper title, the purchaser will be

1 Story, Eq., sec. 376; Bank of U. S. v.
Lee, 13 Pet., 107.

APPEAL from the District Court of the Unit-fraudulent purposes.
So, also, if Hubbard kept his title secret for
1 Story, Eq., 379.

ed States for the District of Wisconsin.

8. Suppose Butler, in this transaction, in | to secure a conveyance of the title to lots 5 and holding the bond, acted as the agent or trustee 6, were fulfilled by Hubbard. Schram, in his of Hubbard under secret instructions, and But examination, states: "I did receive from Otis ler should sell to a purchaser ignorant of this Hubbard a deed of the lots described in the fiduciary capacity and of these instructions; bond from Tertullus D. Butler and David then, query, would not the purchaser be pro- Knab to me. The lots were: twenty-five feet tected? in lot 5, and ten feet in lot 6, in block 43," &c. "The deed," he says, "was executed in part by Hubbard for himself, and in part by him as attorney for others." We may add, these deeds were all found on record, several of them from persons holding the outstanding legal title to Hubbard, and also the deed from Hubbard to Schram, the latter bearing date July 4, 1850.

Where the full legal title to land is lodged in the hands of an agent or trustee, and there is nothing in writing or parol apparent show ing the purpose for which the title is thus placed, and the agent sells the property to a third person without notice of the agency or the trust, such an agency would be the most general and unlimited that can be imagined, and such a trust would be accomplished by the most unlimited power, and the principal and cestui que trust would be bound by the acts of the agent or trustee.

The case of Orton v. Knab, 3 Wis., 576, is decisive of this case.

If Smith has any equitable interest as claimed, he never having had any possession, he cannot set it up as against the legal title.

McMahon v. Allen, 34 Barb., 56.

This court has already virtually decided this

case.

Orton v. Smith, 18 How., 263 (59 U. S., XV., 393); Smith v. Orton, 21 How., 241 (62 U. S., XVI., 104); Crocker v. Bellangee, 6 Wis., 645; Prosser v. Edmonds, 1 Y. & C. Ex. Eq., 481; 20 Story, Eq., 400.

Mr. Justice Nelson delivered the opinion of

the court:

This is an appeal from a decree of the Circuit Court of the United States for the District of the State of Wisconsin, held by the district judge.

The bill was filed to secure the title in lots Nos. 7 and 8, section No. 9, situate in the City of Milwaukee, to Smith, the complainant, against the defendant Orton. The equitable interest in these lots belonged originally to Otis Hubbard, the legal title being in Cyrus D. Davis. The equitable interest in lots Nos. 5 and 6, in block 43, in said city, also belonged to Hubbard, the legal title being in persons in the States of New York and Massachusetts.

These lots Nos. 5 and 6 were sold by Hubbard, with the assistance of his friend T. D. Butler, to Joseph Schram; but as the legal title was not in him, it was agreed that the purchase money should not be paid until the title was obtained and conveyed to Schram, or satisfactory security given that it would be procured within a given time. Security was accordingly given by David Knab, a responsible person, in which Butler joined, and the purchase money paid. In order to indemnify Knab, Hubbard procured a conveyance of lots 7 and 8 by Davis to him. The security to Schram is in the form of a bond under seal, and bears date 22d July, 1848, and is conditioned to procure for him a conveyance of the title to the premises free from incumbrances within three months.

At this stage of the case, and upon the facts as stated, it is apparent that Hubbard, having satisfied the condition of the bond given by Knab and Butler to Schram, the title to lots 7 and 8 held by Knab, simply as a security against this bond, belonged in equity to him. Knab had no longer any interest in it, and must be regarded as holding in trust for Hubbard.

There is, however, another branch of this case that must be examined, and which calls in question this relation of Hubbard to the title, and asserts the title to be in Orton, the defend

ant.

On the 22d July, 1851, something more than a year after Hubbard had satisfied the bond to Schram, Butler sold and transferred the bond to him from Knab for the title to these lots 7 and 8 to Orton, for a consideration of $2,100, as is alleged to be paid by the latter; and accompanying the sale and transfer, is a power to Orton to "Pursue all legal means to recover the full enjoyment of the same."

The defense in this branch of the case is placed on two grounds:

1. That Orton, the defendant, is a bona fide purchaser of the title in Knab without notice, and,

2. That Butler owned the title, having purchased it from Hubbard.

As to the first ground; the answer sets up this defense, as follows: the defendant avers that he purchased said bond so executed by Knab to Butler, for the sum of $2,100, which he paid at or about the date of purchase, except a portion thereof which was expended in complying with the conditions of the bond to Schram; and that he caused said bond and assignment to be recorded; that at the time of the purchase, the title of record to said lots was in Knab; that this defendant did not know that said Hubbard had or claimed to have any right or interest therein; that after he purchased said bond, he satisfied some of the incumbrances upon said lots 5 and 6, and indemnified Schram against the remainder and procured from him an assignment of the bond of Butler and Knab, and tendered the same to Knab and demanded a conveyance, &c.

This averment in the answer, if admitted to be true, fails to bring the defense within the principle which affords protection to the title of a bona fide purchaser without notice; and this upon two grounds:

On the same 22d July, Knab gave a bond to First. An assignee of a chose in action, to Butler, conditioned for the conveyance of lots which class the bond in question belongs, takes 7 and 8, which had been conveyed to him by it subject to all the equities of the original Davis as his indemnity on his (Butler's) fulfill debtor or obligor. Now, Knab, who held a ing the condition of his obligation to Schram. title to these lots at the time of this purchase of The conditions of the bond given to Schram | his bond by the defendaut in trust for Hubbard,