Taylor v. Herndon

PARDEE, Circuit Judge. The case does not satisfactorily show that Dr. Taylor owned or claimed to own the certificate on which the patent for the land in controversy was issued to William H. Chambers, assignee, his heirs or assigns. Dr. Taylor’s letter of November 2d, 1874, to C. A. Nations, in reference to the certificate and survey, describes him as “agent and locator,” and this letter is neither contradicted nor explained. The court below, therefore, correctly found that the appellants had failed to prove such an equitable title in Dr. Taylor or his heirs as would warrant the presumption of a sale and transfer of the said certificate of William II. Chambers in 1836 or 1837 to Dr. Joseph Taylor. The evidence does not show that the appellee here, defendant below, is an innocent purchaser for value without notice of the title or claim of title asserted by the appellants. The finding to the contrary should he eliminated from the decree. All the judges agree that the complainants’ bill in the court below should be dismissed, but a majority are of opinion that the dismissal should be without prejudice. The decree of the Circuit Court is reversed, and the cause is remanded, with instructions to enter a decree dismissing the bill without prejudice. See Rogers v. Durant, 106 U. S. 644, 1 Sup. Ct. 623, 27 L. Ed. 303; Buzard v. Houston, 119 U. S. 347, 7 Sup. Ct. 249, 30 L. Ed. 451.