Opinion of the Court. This partner informed him that he had a cousin, one Colonel Wood, living near Oakland, Maryland, who had lands for sale. A few weeks after receiving this information Duffner called on Colonel Wood, and was shown by him a map of this land, located within a few miles of Buckhannon, in Upshur County, West Virginia. By arrangement the three Duffners met Colonel Wood at Clarksburg, and went with him to Buckhannon with a view of examining the land. Soon after their arrival Colonel Wood became intoxicated and took no further part in the transaction. While there they met the two appellants and Jackman Cooper (and this was the first interview or communication between the parties) and entered into the contract of April 24, 1883, with them as a committee on behalf of all the owners. Prior, however, to this they had gone on to the land in company with Watson Westfall, who was, or had been for years, the surveyor of the county, spending the time from Saturday morning until Tuesday night in going to, examining, and returning therefrom. After executing this contract the Duffners returned to Cleveland. Having been advised that the deed was executed and ready for delivery, and in July following, this plaintiff, with a lawyer from Cleveland - Mr. Fish, a gentleman who had been acting as his counsel for fifteen or twenty years, a lawyer of experience, sixty-four years of age went to Buckhannon. He took Mr. Fish with him for the purpose of having him examine the title and the deed. On arriving at Buckhannon, Mr. Fish proceeded to make such investigation as he deemed sufficient; and after three days passed in an examination of the records and a study of the statutes of the State, he advised Mr. Duffner to take the deed; and on the giving of such advice Mr. Duffner received the deed and paid the balance due on the contract. After this, having missed the train, Mr. Fish remained another day in Buckhannon, and continued his examination of the records; and on his way home stopped at the State capital to see if proper returns had been made to the State auditor's office. The result of all his investigations was satisfactory; and, as both plaintiff and Mr. Fish testify (and their testimony is corroborated by many witnesses, and contradicted by none), it VOL. CXLII-4 Opinion of the Court. was after Mr. Fish advised him to take the deed that he took it and paid his money. But one conclusion can be deduced from these facts-and that is, that the plaintiff did not rely upon any representations made to him by the defendants, but through his own counsel -made investigation of the title, and purchased on the strength of that counsel's opinion thereof. Within settled rules, he is, therefore, now precluded from rescinding this contract on the ground of such representations. But the case does not rest on this alone. Thus far we have considered only such facts as are disclosed by the testimony of the plaintiff, his son, and his counsel. Let us look at some of the testimony produced by the other side. Frederick Brinkman, an apparently disinterested witness, testifies that he met plaintiff on his several visits to West Virginia; and, hearing from him that he was coming there to buy land, cautioned him against West Virginia land titles, calling them "polecat" titles, and advised him before purchasing to consult some of the local' lawyers, naming three or four of them. To which plaintiff replied that he would be careful, and that before purchasing he would bring his own counsel from Cleveland; and added that he was a good lawyer, and one in whom he had confidence. Again, while Mr. Fish was making his examination of the records in the county office, three or four of the defendants were present; and some one or more of them said to him, in the presence of the plaintiff, that some people called their title a wildcat title; and they wanted him to make a full examination, and be satisfied that it was good, "for they wanted no after-claps or further trouble about the land thereafter." So we have not only equal means of knowledge, but also an actual examination by the purchaser through his counsel; a completion of the contract when, and only when, his counsel advises him that the title is satisfactory; a prior caution to the purchaser that land titles in West Virginia were doubtful, and his reply that he proposed to rely upon the advice of his own counsel; and the further declaration of the defendants to such counsel, in the presence of the purchaser, before the completion of the contract, that they de Opinion of the Court. sired a full examination, in order that there might be no after trouble. Surely, if there ever was a case in which the doctrine of caveat emptor applies, this is one. It may be well now to notice the three matters which are alleged in the bill as invalidating the title: First, that there was no note or record of any kind in the office of the clerk of the county court of Upshur County of the sheriff's report of his sale, until the 10th day of January, 1878, which was more than ten days after the sale; which omission, counsel says, has been decided by the Supreme Court of West Virginia to invalidate a tax deed. But this was a defect apparent on the records, the very records which Mr. Fish was examining. Second, that William H. Morton, in whose name the land was returned delinquent for the non-payment of the taxes of 1876, never had any valid title; his only claim of title resting in a series of fraudulent papers, admitted to record in the county of Upshur on the 16th day of February, 1876. Then follows a statement of the instruments in that chain of title, to which the bill adds "From this it will be seen that all of these papers except the last were admitted to record upon certificates purporting to have been made on the 24th day of February, 1867, which was Sunday, by one Frederick Bull, who only goes so far as to certify to the papers as copies of the papers which were then produced before him." But this chain of title, as the bill avers and, the testimony shows, was on the records, and was examined by Mr. Fish; and it also appears that Mr. Fish noticed that one of these instruments at least, thus placed on record, was not an original instrument, but only, a copy. So the defect was not only one which could have been noticed by Mr. Fish, but also, so far as the objection runs to the record being of a copy of an instrument, was in fact perceived by him. Thereafter he examined to see that this tract of land was listed for that year in the name of Morton only; and concluded that, as tax proceedings are proceedings in rem against the land, they were not vitiated by any defect in the chain of title to the party in whose name the land was listed. Third, it was alleged that the title under the tax deed was void, because the tract of land described therein was and is Opinion of the Court. owned by other persons claiming under and owning by supe rior patents. And then the bill sets out some eleven patents, issued between 1785 and 1793, for large tracts of land, which patents, the bill alleges, covered and included the tract in controversy. But these, too, were facts appearing on the public records. It is worthy of remark here, that in the latter part of the eighteenth century it was a common practice for the State of Virginia to make grants of large tracts of lands in the then unoccupied portions of the State now included in the State of West Virginia, the boundaries of which grants were often conflicting and overlapping. Hence arose, under authority of the statutes, a form of patent known as an "inclusive" grant. Grants of that nature were before this court, and considered in the cases of Scott v. Ratliffe, 5 Pet. 81; Armstrong v. Morrill, 14 Wall. 120; and Halsted v. Buster, 140 U. S. 273. So the exact tract of land which any of these patentees actually acquired could only be determined after surveys, and a comparison of the dates of the entries, surveys and patents. And as the descriptions in tax proceedings followed those in patents and other deeds, - lands being listed in the names of the owners according to the system then obtaining in that State, the same uncertainty of boundary existed as to lands held by tax titles. But with reference to all these matters, alleged as defects in the title, it is enough to say that they were apparent on the records, were open to the inspection of plaintiff and his counsel, and as to one of them at least, it was a defect first noticed by Mr. Fish, and deemed by him insufficient to destroy the tax title. So far as respects the matter of settlers on the land-settlers having occupied portions long enough to acquire title by occupancy both the contract and the deed give notice of that fact, and make provision therefor. It also appears that the Duffners made a general examination of the land before the contract was entered into, and spent three nights at the house of Isaac W. Simons, a settler claiming title by occupancy, who, as he testifies, notified them of his claim of title. As the plaintiff after his purchase never caused a survey to be made of the Opinion of the Court. land, and never sought to find out how much of the ground was occupied by these settlers, it is still an unsettled question how much of the forty thousand acres described in the tax deed was within the limits of prior grants, or in fact so occupied. We now pass to a notice of the particular matters of fraud alleged in the bill; and the first is, that the defendants knew that their title was worthless, and with this knowledge, deliberately represented it to be good for the sake of inducing the purchase. The matters in the testimony which are relied upon to substantiate this charge are, that the title was in fact worthless; that there was talk in the community to that effect, which had come to the knowledge of defendants; that such an opinion had been given by a prominent lawyer, at one time a judge of the Supreme Court of that State, as was known to them; the presumption from their long residence in the community that all would have known, and the fact that some did know, of the existence of these conflicting grants; and the testimony of Mr. Fleming, a lawyer in Buckhannon, that these appellants stated to him he might be called upon to advise as to the title, and intimated that an opinion in its favor was desired, and that they would pay him for his services. But, as against these matters, it appears that these defendants were not lawyers, but farmers and business men, not possessing or pretending to possess that knowledge of the law which would enable them to determine as to the validity of the title; that they advanced not only the money for the purchase in the first instance, but continued during the succeeding years and until this sale to pay the taxes, the amount of taxes thus paid being, as stated by the county clerk, $2983.82, and the total amount paid by these defendants in one way and another, towards perfecting their title, according to the testimony of one of the defendants, being $3150.67; that they did not pretend that the title they were selling was other than a tax deed; and that they indicated in the papers the tax deed on which their title was based, and referred the purchaser to the records by which the validity of their title could be determined. While they may have known, as is generally known, that there is an uncertainty about a tax title, yet they had confidence enough in it to invest |