If this was a controversy between the appellants and the original grantees, the Bra-dens, I should be strongly inclined to think that the appellants would not be entitled to relief. Donnell was a resident of New Jersey, and Freston the surveyor of Washington county was his agent. It is not perhaps clearly ascertained how far that agency extended; but from the evidence of one of the witnesses, and from a question which Preston put to him, it ma.y bo fairly inferred, that Donnell either lodged his warrants with Preston to make locations for him, or at least, that Donnell having made the locations, he made Preston his agent for making surveys on the entries, and carrying *396the surveys into grant. . The entry made by or for Don- < neM f°r the 600 acre tract, bears date the 29th April 1783 ; no survey was made on it till 1798, and no grant issued thereon till 1800. Meanwhile, the Bradens caused their survey for 330 acres to be made in March 1790; thisn survey was. made by an assistant of Preston, and was placed iri the book of surveys; and Preston must be presumed to have had full notice of this survey, thus recorded on his own book. If it interfered with the land which Donnell had located seven years before, why did he not, as the agent of Donnell, cause a caveat to be entered against the emanation of a grant ? The plaintiffs allege no reason in their bill, why a caveat was not entered, nor do they allege or prove any actual fraud practised by the Bradens in obtaining their patent of 1793. According to the authority of Noland v. Cromwell, 4 Munf. 155. and the subsequent cases, I apprehend they shew no ground for relief from a court of equity. Again, more than twenty-five years elapsed from the date of Braden’s survey to the exhibition of the bill, whose object is to repeal the grant founded on that survey. If the plaintiffs had had the legal title to the land, they could not have maintained ejectment for it against the tenants in possession, after such a length of time; and on analogous principles, they ought not, I think, to be allowed to set up an equitable right ac-, quired thirty-two years before the suit brought, against the legal title of the grantees.

■ Such are my strong impressions. But whether they are correct or not, I am of opinion that King, the purchaser from the grantees, without notice of the latent equity of Donnell, ought to be protected in his purchase; and that that defence may be made by answer as well as by plea. The heirs of King do rely on that defence, in their answers.

I am for affirming the decree.

Upon a careful examination of this record, the plaintiffs’ cause wore an unfavourable aspect to my mind; and I doubted very much whether they ought to succeed in setting aside the older grant to the Bradens. The circumstances which produced this impression, were—1. The long lapse of time between Donnell's entry and his survey, the first in 1783, the last in 1798— fifteen years; and then two years more before he obtained his grant. 2. The suspicion raised by the proofs, that the surveyor of the county was interested in the entry and survey. 3. The bill is filed by two plaintiffs, Donnell and Preston, as joint owners of the 600 acres, when the deed produced to support the claim is a deed by which Donnell conveys the whole land to Preston. 4. The facts that in 1790 the plaintiff Preston, as surveyor of the county, surveyed 330 acres of the tract before entered with him by Donnell, for the Bradens, without any entry made by them (as he now asserts); which survey was carried into grant in 1793, and the land sold by the Bradens to King in 1794, and the deed put on record immediately; 'and in 1814 (twenty years after), this 600 acres, including the 330 sold to King, is bought by Preston of Donnell. These facts, I sa,y, produced an unfavourable impression on my mind against the plaintiffs’ claim : but still I doubted strongly, whether the ground taken by the chancellor could be supported. In this state of suspense, a remark of my brother Tucker turned my attention to another consideration : it was this, that if the representatives of King had pleaded that they were purchasers without notice, he should have thought them protected, unless actual notice was proved, because a purchaser from an elder grantee ought not to be affected with constructive notice of priority of entry. Returning to the examination of the record 1 found, not indeed a plea, but an allegation in the answer, that the 330 acres of land granted to the Bradens was sold and conveyed by them to King, *398he havins; no notice of the claim of the plaintiffs. Here is a positive allegation oí a purchase and conveyance lor a valuable consideration without notice, twenty years prior to the acquisition of title by the plaintiff Preston. And I find by examination of the authorities, that this is a defence which may be made by answer, as well as plea; indeed, a plea is an answer in another form, putting the defence upon a particular point, to save expense and delay. Thus, in Mitf. Plead. 177. it is said—“When an objection to a bill is not apparent on the bill itself, if the defendant means to taire advantage of it, he ought to shew to the court the matter which creates the objection, either by answer or by plea, which has been defined a special answer shewing and relying upon one or more things, as a cause why the suit should be either dismissed, delayed or barredfor which Pract. Reg. 273. is cited. In Roche v. Morgell, 2 Scho. & Lef. 721. lord Redesdale remarked that a plea was a special answer to a bill, differing in this from an answer in the common form, as it demanded the judgment of the court, in the first instance, whether the special matter urged by it did not debar the plaintiff from his title to that answer which the bill required. So, Beames in his Pleas in Equity, p. 253. after treating at large on the plea of purchaser without notice, and pointing out the niceties of the plea, says—“ It would seem that the difficulties of the plea of purchaser for valuable consideration without notice, as a mode of defence, may be avoided by adopting the more common mode of defence by way of answer; the proposition, that if a defendant answer he must answer fully, having for one of its excepted cases, that of a purchaser for valuable consideration without noticeciting Stephens v. Gaule, 2 Vern. 701. Jerrard v. Saunders, 2 Ves. jun. 454. Rowe v. Teed, 15 Ves. 372. 378. 1 Ball & Beatt. 325. 2 Id. 303. I have examined the three first of these cases, and find them full to the point; making the defence of purcha*399ser without notice in the answer, and the defence in that form expressly held good by the court. The same has been our course too; 2 Rob. Pract. 807. and in addition to the cases there cited, Doswell v. Buchanan, 3 Leigh 365. Here, then, is not only a good but a highly favoured defence, well made; and in the whole record there is not a scintilla of evidence to fix even a suspicion of actual notice on King. Nor is it a case for constructive notice, as no one can suppose it the duty of a purchaser, who sees his vendor with the grant of the commonwealth in his hands, to search the surveyor’s office, to ascertain whether there may not be in existence an inchoate equitable title to the same land. Upon this ground, I am clearly of opinion that the decree should be affirmed.

I concur. It is unnecessary to inquire what might be the result of this controversy, if the only parties to it were the original conflicting grantees of the land or their legal representatives. There are other parties. King was a purchaser from the elder grantees, for valuable consideration, without notice of any objection to their title ; and that fact is sufficiently stated and relied upon in the answer. I think it manifest, that such a purchaser is not bound to go behind the patent, and to assure himself that there is no irregularity or objection in or to the patent. The exhibition of the commonwealth’s grant is a warrant for his purchase, unless he has notice of some objection to the patent, or of the equitable claim of some other person.

I concur with the chancellor, that under the statute for the regulation of the scire facias to repeal a patent, an equitable title must be shewn in the party prosecuting the petition, where it is sued out by a private individual, and not ex officio by the officers of the commonwealth. The language of the statute puts *400this beyond doubt, and its purpose is commendable and * judicious. If, therefore, the appellants have not an equitable title against the appellees, the scire facias must fail.

• -ft cann°t be denied, that the want of an entry on the part of the grantees under whom King’s heirs clairb, would have been fatal to their title, had it been contested by a caveat. The entry of Donnell, which has not been successfully assailed, must have prevailed over the irregular and unauthorized survey of the Bra-dens. Nor" do I think a failure to caveat would have debarred the appellants from asserting their equity in a court of chancery, as against the grantees, as the want of an entry was, in my opinion, an ample excuse for that failure. The adventurer who has made his entry has indeed always been held to be affected by constructive notice of the entries appearing upon the book of entries. Until he has completed his own works, and perfected his title by a grant, it is his business to look to that book, to see who interferes with his pretensions, and to arrest by caveat the surveying and patenting of a junior interfering location. And when the book of entries exhibits no such interference, when upon examination- there appears to be no adversary claim, he is justified in presuming that there is no junior locator to contend with. The attempt to procure a survey and patent without a previous entry, thus operates a fraud upon the prior adventurer, who is lulled into security by-this gross violation of the provisiqns of the land law, and filés no caveat to the proceeding, because he is ignorant of its existence. This constitutes such a fraud as to give jurisdiction to a court of equity, and to take the case out of tlie operation of the doctrine of that class of cases of which Noland v. Cromwell is at the head; and as against the grantees, and all persons claiming under them with actual notice of the junior grantee’s equitable title, that title would prevail. But *401not so as to purchasers without actual notice. Purchasers from patentees are not bound to look behind their own or antagonizing patents, to sec what might have been the state of equities between them. The book of entries is presumptive notice to aLl adventurers in their progress to a patent, but it would be greatly mischievous if purchasers under a patent were held to be affected by constructive notice of a prior entry. If the first purchaser would be so affected, every successive purchaser would be affected also, until the benign influence of the equitable limitation should conclude the assertion of such stale and obscure demands. In the case of French v. Loyal Company, 5 Leigh 627. I have presented the reasons which suggested themselves in support of this doctrine, and to them I refer.

In the present case, the defendants allege that King’s purchase and acquisition of title were without notice of the plaintiffs’ claim. The allegation is indeed set forth in the answer, and not by way of plea; but the industry of my brother Carr has presented a train of authorities, which shew that the defence may well be insisted on by way of answer. There is not, in the record, the slightest attempt to prove notice, so that the defence stands uncontradicted and unimpugned. The consequence is, that the decree is right and must be affirmed.

Decree affirmed.