USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. I > Part 25
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For if the Testor. meant that Harwar shou'd have an Estate for Life whenever the Issue of Ann Sharp shou'd fail which per- haps may not happen these 100 years, Then the Devise to Harwar in all probability is vain and fruitless, for an Estate for Life after failure of Issue in another must be looked upon as nothing.
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But admit that the words (if she die without Issue) shall be Construed generally yet taking both parts of the Clause together Ann must have a Fee.
For then the Testors meaning must be taken to be thus That Ann shou'd have a Fee simple determinable upon failure of Issue in her. And it is the same thing as if he had say'd I give my Land to Ann Sharp and her Heirs so long as she has Issue, this is a Fee Simple determinable upon the Contingency of her dying with't Issue. If Land be given to one and his Heirs so long as I. S. has Heirs of his Body, or so long as he shall pay so much money, Or so long as the Church of Saint Paul shall continue These are Fee Simples determinable. so is Plowd. 557. 10 Co. 976. Seymors Case.
Indeed my Lord Coke says a Rem'r cannot be Limitted upon a fee Sim. But the Lord Chief Justice Vaughan in the Case of Gardener & Sheldon 269. Questions that Opinion as grounded upon no Authority.
So upon the whole matter, taking the words of the will either one way or the other Ann had a fee Simple and under her there is a good Title derived to the Defend't And I pray Judgm't for him.
And it was Adjudged for the Deft. that it was an Estate in fee in Ann Sharp.
October 1736 [Note the date 1736 .- W. W. S.] 1Ross EXTOR BAG US COOKE & al. Post. 248 S. C. [152]
The Defend'ts having Pleaded that they were under age and prayed that the Parol might Demur Upon Demurrer Judgm't was given quod Respondeant Ouster. After which they pleaded in Abatem't of the Writ, to w'ch the Plt. replied an Imparl. the former Plea & Judgm't. And thereupon Demurrer & it was Argued for the Plt.
That this Plea being in Abatem't cou'd not be Pleaded after
imparl. which was a known & Settled point. 1 Vent. 76. 137. Sty. 187. 2. Lutu. 22. 24. 8. Mod 43.381. Itis true matter of Abatem't may be Pleaded after a Spl. Imparl. & it is also true that the Deft. here in the Office had a Spl. Imparl. granted,
IS. C. in W. G.'s Barradall 160. [Note by W. G.]
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but the Plea, is pleaded with't any Notice of it and therefore they have waved & lost the benefit of it
The nature of an Imparl is nothing else but the Continuance of the Cause to a further Day for the Deft. to advise what to Plead Terms of the Law 289. and when the Deft. has any thing to Plead in Abatement with a Pulvis sibi omnibus advantagijo &c. and this is called a Spl. Imparl. after which matter of Abate- m't may be pleaded as I say'd
In England these spl. Imparlances are granted by the Secun- darys in B. R. and the Prothonotaries in C. B. as they are by the Clerk here out of Court and there are various sorts of them, as with a saving Exception to the Writ, to the Writ & Decl., or with a saving of all Exceptions whatsoever Hard. 365. 1. Salk. 1. and when the Deft. comes to plead he shews the nature of his Spl. Imparl. in his Plea, and this of necessity for two Reasons 1. That the Court may judge whether the matter he pleads is proper after such Imparl. because if it be not the Plea will be judged nought, for Instance If the Imparl. be only with a saving to the Writ or Bill he shall not plead to the juris- diction or any matters in Abatem't of the Count or Decl. 1. Sal. 1. 1. Hard 365. 2. That the Imparl. may be made a part of the Record & so are all the preced'ts that I have seen of Spl. Imparl. 1. Lutu. 6. 44. the Clerk in making up this Record can take no notice of this Imparl. not being in the Plea. So if the Record was made up here as it is in England before tryal it cou'd not appear there had been such Imparl. Nor will it appear to Posterity And then if Judgm't is given upon this Record for the Deft. it will not appear but that this Courts opinion was that matter of Abatem't may be Pleaded after a Gen'l Imparl. which I presume it is not. From hence I argue the necessity of shewing the Imparl. in the Plea & that where the Deft. does not do it, tis in effect a waver of it at least this Plea is defective in form the Preced'ts being all ag't it And in Pleas of Abatem't which are generally for delay the greatest strictness & nicety of pleading is required, the Reason is because they are not to be Encouraged or favoured. But if this Objection will not hold this Plea, being after another dilatory Plea & a Judgm't thereupon quod Re- spondeat Ouster can never be good. Tis as known and settled a Rule as any in Practice that two delatory Pleas shall never be Allowed.
[Here follows a whole page [153] wholly illegible .-- W. W. S.]
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April 1730 [154]
MARKS US DUNN Ejec. Fr Deft.
Matthew Marks was seized in fee of the Lands in Question and by his last Will and Testament devised several Parcels of Land. One to the Lessor of the Plt. and several other Parcels of Land to others but makes no disposition of any of his personal Estate except 3 feather Beds and in the last Clause of his Will he says, That his Will is that his Lands not disposed of (which are the Lands in Question) be sold by my Executors left in Trust to pay my Debts and Appoints Robert, Norbon and John Avery his Executors (dated 15 Aug't 1719).
The Executors the 13 June 1721. Exhibits their Account to the County Court by which it appears that the Personal Estate exceeded the Debts and Legacies £7.15 one of the Ex'ors died and the other John Avery by Indenture dated 8 Jan'ry 1727. for the Consideration of 20.5. Conveyed the Lands in Question to Robert Glover who Sold to the Deft.
There are two Questions arising upon this Case 1. Whether * by the Surviving Ex'or be good or not. 2. Whether if the* as Debts were paid out of the Personal Estate* of the Purchasor
1. Some Books make a difference where Lands are Devised to Executors to sell, and where the Devise is that his Land shall be Sold by his Ex'ors. for in the first Case an Interest passes and if one Ex'or dies the other may sell. But in the other Case they have only an Authority and in that Case if one dies the other cannot sell* 113. a. b. Gold. 1-2. Dyer 219. Moor 61. Keil. 107. b .*
But the latter Authorities are otherwise, For my Lord Chief Justice Nayles says it hath been held That if a Man Devise Lands to be sold by his Ex'ors, that that will give an Interest - well as if the Land be devised to the Ex'ors to be sold Hard. 4 Barrington vs the Att. general
And the payment of Debts is a good Consideration and when the Land is sold the money is assets in the Ex'ors Hands at Common Law Hardres 405. 1. Lev. 224.
Therefore in this Case the Exors had an Interest as well as an Authority.
*Worn out, or torn, in the manuscript .- W. W. S.
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But here the Exors are made Trustees and a Trust shall Survive
[155] As where a Man Devised that his Land should be sold by two Trustees, and appointed others Executors. One of the Trustees died, and the Survivor and Heir were Decreed to sell, because the Lands were tied with a Trust which shall Survive in Equity Hardres 204.
As to the Second point The purchasor is in by the Devisor, for if a Man Devise that his Wife shall sell his Land and died, and she take another Husband she might sell the Land to her Husband. Co. Lit. 112. And I take it to be a settled point, that in this Case the Purchasor is not concerned whether there be a sufficiency of the Personal Estate or not. But if he buy and pay, tho' there be sufficient to pay the Debts out of the Personal Estate yet he shall hold the Lands ag't the Heir and the Heir must take his Remedy against the Trustee. 2. Cha. Cases 115.
But where Land is devised to pay Debts particularly men- tioned it is otherwise 1. Vern. 301.
There is in this Will no Disposition of the Personal Estate, but it is left to the Ex'ors to take it as Ex'ors or otherwise it must be distributed amonst the Children And the truth is that the Ex'or sold the Land that the Children might have something
Now there is a difference where Land is Devised to be sold for payment of Debts and where Lands are chargeable with the payment of Debts In the last Case the Personal Estate shall Exonerate the Real And if there be Personal Assets the Land ought not to be Sold, But in the other Case where the Personal Estate is disposed of (which indeed is not in this Case) the Personal Estate shall only come in aid of the Land if that be deficient 2. Vern. 7. 18. Wainwright vs Brudlows
Yet the Sale in this Case shall bind in respect to the Purchasor And it was Adjudged for the Deft. But the Heir has his remedy against his Ex'ors to reimburse him the value of the Land if there were personal Assets to pay the Debts.
GRAVES US BOYD Can. Fr Deft.
The Case
The Plt. was seized of 125 Acres of Land with the Appurten's in King and Queen County and Boyd agreed to purchase it of him at 90£. price. The Agreem't was reduced to writing and Each party bound to the other in the Penalty of 506. Boyd
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entred and was in possession some time and Graves offered to Convey the Land when ever Boyd shou'd tender the Deeds, But Boyd finding himself very much imposed upon in the Bar- gain and the Land not being Conveyed quitted the possession and refused to go on with the Purchase And Graves Exhibits his Bill to Compel him to a Specific Execution [156] of the Agreement. There are several matters charged in the Bill a's that Deft. had left the Houses in a ruineous Condition and impoverish'd the Land by working several Slaves upon it But this is denied and the Witnesses sworn in the Cause prove the Answer to be true And that the Bargain is a very hard and unreasonable Bargain
Two Witnesses swear that it is not worth above 30£ and another that he wou'd not give 156 for it and another not above 10%.
There was at the time of Executing the Articles a Parol Agreem't that the Plt. shou'd make a good Title to the Deft. in another small parcel of Land of 25 Acres which he had pur- chased of one Griffin But had no Conveyance for it And this was to be thrown into the Bargain And the Plt. had forbid Boyd to occupy that, and refused to Convey it to him
Upon this Case it will be a question whether a Court of Equity will carry this Agreem't into a Specifick Execution altho the Deft. was in possession of the Land some time
I hope not for the following Reasons, first because the Plt. had not tender'd a Conveyance to the Deft. as by the Articles he ought to have done, And has refused to make the Deft. a Title to the 25 Acres Purchased of Griffin, But did forbid him to occupy it, Tho' it was part of the Agreem't as it is Sworn in the Answer Cro. Eliz. 517. For if the Plt. has made the first breach of the Articles he can have no pretence in Equity to Compel the Deft. to perform them on his part By reason of the unrighteousness and inequity of the Bargain The Agreem't is to pay 906. which appears at most, to be worth no more than half that Sum And two Witnesses swear they wou'd not give above 10 or 15£. for it which is extreamly hard and unreasonable
It is a Rule in Equity I agree to Compel the specifick Execu- tion of Agreem'ts But there is no Rule which a Court of Equity will not depart from rather than do the least Injustice Or to do any thing that may be Severe and Oppressive on the one side, and unreasonable on the other to insist upon And that is
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the difference between Law and Equity For a Court of Law adheres to it's own established Rules But a Court of Equity as it suspends the Rules of Law, so it will Supersede its own rules also
Therefore the Court will not only in some Cases refuse to carry Agreem'ts into a Specifick Execution, but they will give relief ag't unreasonable and unconscionable Bargains As where a young Man in the Lifetime of his Father buys Goods of a Tradesman And agrees to pay him five times the value at his Fathers death [157] Or where he sells the Reversion Ex- pectant on the death of his Father at an under value in such Cases the Court of Chancery will set aside the agreem't To which purpose there are multitude of Preced'ts but they will not be allowed to come up to the present Case, yet they prove that the Court of Chancery will Regard the Reasonableness of Bargains, and it may be justly inferred that if in the Case of a young Man, whose Extravagancies lead him to do a great many Impudent Things and to make foolish Bargains will set aside his Agreem't They will not Compel a Man of riper Judgm't to perform an Agreement to give three times the worth of a Thing whether he be overreached by the other Party & outdone by his Superior Cunning, Or whether without any Art of the Seller, he thro' his own Indiscretion and folly makes such a Bargain
And altho' those who are Conversant in buying and Selling perswade themselves that there can be no wrong in insisting upon any Thing that is agreed be it ever so unjust or unreasonable
They must understand this is one of the great vices of Trade which cannot be justified in foro Conscientice however it may be Countenanced by Example and practice of great numbers of People It is not only a fraud and Deceit to disguise and Conceal the faults of anything we Sell but it is likewise a fraud to over rate a Comod. and to sell any thing at an unreasonable price either by taking Advantage of the Buyer's Ignorance or necessity (the Divines tell us) it's a Sin which nothing but restitution can attone for
Now if it be a Sin and a Man in Conscience ought not to Insist on an unreasonable Bargain; no Court of Conscience will Decree such a Bargain to be Executed.
But there are Preced'ts where the Court of Chancery have refused to Decree the Specifick Exon. of such Agreements as this As where the Father being in Debt agreed to give his Daugh-
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ter in marriage more than he, her Mother and two other Daugh- ters unpreferred wou'd have left, The Court Would not Decree the Agreem't but left the Plt. to Law. 2 Cha. Ca. 17. So in a late Case since the year 1720. a Bill was brought in the Ex- chequer for the Specifick performance of Articles for a Pur- chase made in that year whereby it was agreed that 40 years Purchase shou'd be paid for the Lands There was a Decree in the Exchequer for the performance, but it was reversed in the House of Lords
Obj. 1. Cha. Cases 42. An agreement in nature of Wager Decreed in Specie 1. Cha. Cas. 171. Agreem't by ten't in Tail shall bind the Issue in Tail if he Accepts it
But the Court were of Opinion it was no hard Bargain because there were several Houses upon the Land So they Decreed the Agreem't to be performed in Specie Yet the Houses were of no value [Missing .- W. W. S.] be good for nothing.
April 1730 [158]
ALLEN US STAFFORD Ejectm't Fr Plt.
The Case.
William Stafford was seized in fee of 300 Acres of Land with the Appurtenances which descended to Amy Beesly his dauter and Heir, She ent'd and died Seized and by her last Will dated 9th of Ap'1 1664. Devised the Lands in these Words " I give and Bequeath my Dividend of Land & Plantation to my Cousen Humphry Stafford and in Case he die without Issue then to my Son in Law in England
Humphry Stafford the Devisee ent'd and was seized and by Deed dated the 16 of April 1668. and by a'no Deed dated 19th Feb'y 1679. for valuable Considerations Conveyed 90 Acres (the Lands in Que'on) to Townsend in fee and died 11 Dec'r 1684. and left Issue Humph'y his Son and Heir who died in the year 1669. about 31. years of age and left Issue the Lessor of the Plt. his Son and Heir who was born in October 1699. The Deft. derives a Title under Townsend and the Lessor of the Plt. claims under the Will of Mary Beasly as Issue in Tail to Humphry Stafford his Grand Father.
The Lessor of the Plt. An'o 1721. brought an Ejectm't ag't the Deft. and the Court 29th October 1723. gave Judgment ag't the Plt. upon the Act made 1662 Intituled Lands, five years
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in possession, tho' that Act had been repealed from the year 1705.
But the Court very soon afterwards gave a contrary Judgement which was the Occasion of bringing this Action
That an Estate tail passed by the Will of Amy Beasly to Hum'y Stafford, the Grand-Father can be no Question, a Devise to one, and if he die with't Issue always Construed an Entail, King & Melling, 1. Vent. 214. 225. 9. Owen 29 Cozens Case And it is so Adjudged every Day in this Court Then the only Ques- tion that remains is Whether we are barred by any Act of Limitation
The Act of 5 years in possession cannot be a barr to us being Repealed, for an Act Repealed is of no more effect than if it had never been made So says my Lord Chief Justice Vaughan his Reports 325. & so it has been Adjudged in this Court upon this Act
Then there is no other Act of Limitation but that made in the y'r 1710 which Enacts that no Person which then had or thereafter might have any Right or Title of Entrey into any Lands &c. shou'd make any Entrey but within 20 years next after his right accru'd But there is a Saving that if any Persons that then had or thereafter shou'd or might have any right of Entrey was or shou'd be within age &c. he shou'd have 10 years after his coming of age to make his Entrey
[159] The Lessor of the Plt. at the time of making this Act was under age. He is now but 31. So this Action was brought within the 10 years which is Allowed expressly by the Saving Clause to all Persons who were under age at the time of making the Act, & I take it to be a clear Case for the Plt.
But it was insisted that the former Judgm't given upon the same Facts that are in this Case, and no different Title was shewed, that that Judgm't shou'd be a bar and two Cases in Salk. Fenwick and Gosvenor - and Withers and Harris - and the Stat. of 4. H. 4. were Cited
And five of the Court were of that Opinion
Which is a very strange Judgment, ag't a thousand Preced'ts and the nature of the Action.
[Page and a half wholly undecipherable .- W. W. S.]
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April 1731. [161]
DENN US SMITH Ejectm't Fr Deft.
Ejectment upon the Demise of Dewberry for Lands in the county of Elizabeth City
Powell was seized in fee of the Lands in Question and by his last Will and Testament Devised the same to Mary the Wife of Ephraim Thomas in fee Thomas and his wife entered and were Seized in right of the Wife and by their Deed dated the 9th of April 1675 Acknowledged by them both in Eliz'a City County Court the Land was Conveyed to Owen Davis in fee; But it does not appear that the Wife was privately Ex- amined - Davis's Estate is derived to the Deft. and the Deft. and all those whose Estate he hath Enjoyed these Lands peace- ably and Quietly ever since the Date of that Deed until the bringing of this Action being 54 years or thereabouts
Mary Thomas died upwards of 50 years ago leaving Issue two Daughters Elizabeth and Mary then very Young Her Husband lived 10 Years after and died An'o 1690. Elizabeth was two Years and Mary 6 Months old when their Mother died
Elizabeth married at the age of Eighteen Giles Dewberry & both of them died in December 1716 the same Day leaving Issue two Sons Giles and Thomas Giles accomplished his age of 21. and died without Issue some time in the year 1719. and Thomas the Surviving Son and Heir to his Mother is one of the Lessors of the Plaintif being about 22 years of Age
Mary the other Daughter married at 17 one Anthony Simons who died two Years after the Marriage she Surviving. After- wards she Married John Roberts in the Year 1703. He died A'o 1711. and she died 1719. leaving Issue John Roberts the other Lessor of the Plt.
So Thomas Dewberry and John Roberts the Grand Sons of Mary Tho's under whose Deed we Claim entered and made the Lease to the Plt. the 1. Day of January 172S. The Deft. entered upon him & Ejected him
And the Question is Whether the entrey of the Lessors be Lawful or not Upon a Supposition that the Inheritance of the Lands in Que'on was not divested by the Deed Anno 1675. they have a Title as Heirs to their Grand Mother and we must not contend that point ag't so many Resolut'ns [162] of this Court That nothing can pass by the Deed of a Feme Covert unless she
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Acknowledge it in Court and be privately Examined and the Exam'n entered upon Record
But I think they are barred by the Act of Limitation passed in the year 1710
Before I enter upon the Construction of that Act it will be necessary to shew two Acts of Limitation precedent to that in Order to make my Interpretation the more Intelligible
In the year 1662. an Act passed whereby five years peaceable possession of Land shou'd Confirm a Title with a saving to Feme Coverts, Infants &c. So as they shou'd prosecute their actions within five years after their Incapacities shou'd be re- moved
This Act subsisted till the year 1705 and then a new Limita- tion was introduced conformable to the Statute in England 21. Ja. 1.
That Act provided against Rights or Titles of Entrey that had accrued before the making the Act as well as such as shou'd accrue afterwards with a Saving to such as were Infants, Feme Coverts &c. at that time & to titles that shou'd afterwards descend to Persons under those Incapacities
The Limitation in this Act was to 20 Years and the Saving for 10 Years after full age, Discoverture &c. But it happened to be Repeal'd by the late Queen on Account of other matters in it
Then comes the Act of 1710. which is in the same words as to the Limitation, with that of 1705
I do not intend to Argue that these Repealed Acts can have any Operation upon the Plts. Title, But it wou'd have been very hard if the Legislature in 1710 had left all the Antient possessions exposed to any Later Titles that might rise up ag't them, for many Titles were barr'd by the Act of 1662. which were revived by the repeal of the Act of 1705 particularly the Title of Mary the Mother of Roberts one of the Lessors of the Plt. for she was discovert before the Year 1703. and from that time the Act run ag't her and besides she must have been at least 31 Years of age at the time of making the Act
And the Mother of the other Lessor was likewise barred at that time because she cou'd not be less than 32 Years old Therefore it was highly reasonable in making the new Limita- tion to provide for such Titles as had been established under the old Law's Accordingly the Act of 1710. Provides " That
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no Person or Persons that then had a right or Title of Entrey into any Lands &c. shou'd make any Entrey but within 20 Years next after their right or Title had descended, and in default [163] thereof they and their Heirs shou'd be utterly excluded and disabled from any Entrey to be made after Provided that if any Person or Persons that at the time shou'd have any right or Title of Entrey were under age. Feme Covert &c. they and their Heirs notwithstanding the 20 Years are expired might bring their actions or make their Entrey as they might have done before the Act So as they or their Heirs shou'd within 10 years next after the coming of age Discoverture &c. or Death, take Benefit of and Sue for the same and at no time after ten Years
So that altho' Infants and Feme Coverts were before barred by a long possession under the old Limitation, yet such as had a Title at the time of this Act were saved for ten Years after their disabilities shou'd be removed. But after that time the Act is express they and their Heirs shall be forever barred.
Now the Persons who had a Title to this Land in October 1710 the time of making the Act, were Eliz'a Dewberry and Mary Roberts whose Heirs the two Lessors are. Their Title accrued to them upon the Death of their Father who died about the year 1690. 30 years before the Act. They were in 1710 under Cover- ture. Dewberry & his Wife died in December following, in the same Day, then from that time the 10 years run upon her Heir (which was her eldest Son and now the Lessor Dewberry her Second Son) for the words are from the discoverture or Death. Roberts the Husband of the other died in 1711, from that time the 10 years run upon the other Lessors Mother who died Anno 1719.
This Ejectm't was not brought till 1728. So one of the Lessors is Eight years and the other seven Years too late.
But on the other side it will be argued, that the saving Clause in this Act ought to receive a more liberal and Extensive Con- struction in favour of Infants and Feme Coverts That if there is not 20 Years Clear of these disabilities the Act shall be no bar So that if a Title Descends to an Infant, being a Woman, and before she attains her age of 21. she marries and continues under Coverture many Years and leaves an Heir under age and that Heir dies before 31. and the Title Descends to another
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