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 26
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31
Infant, that Infant may enter and bring an Ejectm't. And if such an Interpretation shou'd prevail it may happen that 100 Years will be no Security.
But it is not possible I think to Interpret the Act in that manner without doing the greatest violence to the words. Yet since the Gentlemen of the other side must labour such a Con- struction if they say anything I will deliver my Sense of this saving Clause as fully as I can.
The Clause consists of two parts one respects Titles accruing before the Act, the other Titles accruing after the first part only Concerns our Case [164] As to the other, the words are, that if any Person that shall have any Title of Entrey shall at the time of such right or Title first descended be an Infant. Feme Covert &c. such Person and his or her Heirs may not withstand- ing the 20 years are expired bring an Action or make an Entrey, so it be done within 10 years after coming of full age discoverture &c. or Death.
Now the words (first descended) do necessarily imply these follow'g points. 1. That if a Title shou'd descend to a Person under none of these Disabilities and he dies within 20 Years leaving an heir under age or under Coverture Such Heir cannot be within the Saving Clause &c but will be barred when the 20 years are expired
2d. If a Title first descend to an Infant and he dies before 31. or to a Feme Covert and she dies before discoverture and the next Heir be an Infant or Feme Covert, they must bring Action within 10 Years after the death of the Person to whom the Title first descended
3d. If a Title descend to a Feme Sole under 21. Years of age and she afterwards marries she shall not have ten years after her Discoverture to bring Action but must bring it within ten Years after her coming of age and so it was Adjudged in one Carys Case of Lincolns Inn A'o 1710. upon the Statute of King Ja. 1. as Mr. Booth told me, Because when one disability has attached, the Party or her heirs can have no Benefit of another Vide. Bro. Reading upon the Statute of Limitation 110 So at the Common Law no disability is regarded but what subsisted at the time of the first descent As we shall see in the 2d. Case following
If an Infant hath a right to enter upon another who dieth Seized & the Land descends to the Issue during the time that
R54
VIRGINIA COLONIAL DECISIONS
the Infant is within age such Descent shall take away the Entrey of the Infant Litt. Sect. 402.
But if a Man seized of Lands in fee die his Wife priviment ensient with a Son and a Stranger abate & die Seized and after the Son is born he shall be bound by the Descent, because he at the time of the Descent have no right to enter Co. Lit. 241. b.
And tho if a Feme Sole of age takes Husband and a Descent is cast, that shall not take away the wife sentrey after discovert'e Because no folly can be imputed to an Infant Co. Lit. 246. b.
Yet in that Case the Feme can only take Advantage of her Coverture in respect to her Infancy But that is a Case at Common Law & the words in the Saving Clause of this Act cannot be so Construed.
[165] But the Court gave Judgm't that the Lessor Dewberry was not barred for the moiety But that the Lessor Roberts was barred for the moiety of his Mother. Which depends upon a distinction that has no foundation. And is, I think clearly against the words of the Law
However the Court, upon the Precedent of Burwell & Meekins Case (antea) Dismist the Plts. Action because one of the Lessors had no Title and so the Lease not good.
HARRISON US BLAIR Indebitat. Assum't. Fr Plt.
The Plt. brought an Action ag't the Deft. as Ex'or of one Hollinghurst upon an Indebitatus Assumpsit of the Testor. To which the Deft. with leave of the Court Pleaded 3. Pleas
1. That the Testor, did not Assume
2. That he did not Assume within 5 Years
And upon these two Pleas Issues were joined and found against the Defendant
The third Plea was that the cause of Action did not accrue within 3 years And at the time of this Plea pleaded there was an Act of Assembly, whereby Actions upon Account are Limitted to 3 Years
But in the meantime that Act was repealed by Proclamation and then we Demurred. And the Question is Whether a Re- pealed Act shall be a Barr, being in force when the Plea was Pleaded
If a Repealed Act had never been held in this Court to be a bar I think this point wou'd not bear an Argument
1
SIR JOHN RANDOLPH'S REPORTS R55
Three Years was a bar only because this Act made it so. When the Act is made null it can be no longer a bar, This is common Sense A Law is always Repealed for taking away some Mischief which that Law Introduced, And to subject us to this Act, it is void, is unreasonable and a Contempt of the Authority that repealed it
The Lord Chief Justice Vaughan in his Reports 325. Hill vs Good Says, that an Act Repealed is of no more effect than if it never had been made.
The 28. H. 8. s. 7. makes all Marriages within the Levitical Degrees void The 28. H. 8. 6. 16. makes void all Dispensations of the See of Rome
The 1. & 2d W. & M. C. E. Repeals these Statutes or some of them The 1. Eliz. Repeals that and revives the other If a Marriage had happened while the Stat. of W. & M. was in force after the 1. of Eliz. it becomes void. So much may be inferred from that Case But there is a Case in the Year Book 4. H. 7. 10. & 10. H. 7. 22. which was thus A man Seized of Lands was attainted of High Treason by Parliament
[166] The King granted his Lands: Afterwards the Act of Attainder was Repealed and the Party restored, But in the meantime the Person Attainted Committed Trespass upon the Patentee for which he brought his Action And it was Adjudged by all the Justices that the Action did lie And Brian say'd the Deft. might have Trespass against the Patentee And the Reason is that repeal of an Act of Parliament puts everything in the same Condition as if no Act had never been made
The other side Admitted the Law to be so
And the Court gave Judgment for the Plt. una voce
1POWELL US FARREL Appeal from Essex Fr Respond't
The Respondent in Essex Court brought Ejectm't ag't the Appell't and a Special Verd't was found but no Damages assessed The Court upon the Verd't gave Judgm't for the Plt. releasing his Damages Judgm't was entered for the Land and Costs. And the Court here upon the Argum't were of Opinion with the County Court as to the Title
But Mr. Holloway moved to set aside the Judgment because the Damages being released the Costs were gone and Cited 3.
1S. C. in MSS. Virg. Rep. in Congr. Libry. [Note by W. G.]
-
R56
VIRGINIA COLONIAL DECISIONS
Leon'd Wood and Payn the Saying of Kemp Secondary, to that purpose
I insisted upon the Stat. of Glo'ster by which Costs are to be recov'd in those Actions where Damages may be recovered And the Court Affirmed the Judgm't for the whole Vid Roll & Danv. Abr. Titt. Error.
And the true difference According to the Book called Trials pr pais last Edition 243, is this, where nothing but Damages are to be recov'd and the Jury Assess no Damages the Plt. looses all the Benefit of the Verd't But where any thing else is to be recovered besides Damages As in Debt, Ejectm't &c. he may release his Damages and have Judgm't upon the Verd't for the rest Vid. 2. Keb. 545.
FREEMAN & al. ads HURST Adm'r of Hurst Debt. Fr Deft.
Debt upon a Bond Conditioned for the performance of Cove- nants in an Indre. The Deft. pleads Covenants performed. The Plt. assigns these Breaches. 1. That the Grantors were not Seized in fee and had not Power to Convey the Premises. 2. That the Land was Evicted by an older Title in Ejectm't brought &c.
The Defts. rejoin That Hurst the Grantee died before the Eviction To which the Plts. have Demurred and the sole ques- tion is Whether the Adm'r can maintain an Action for the breach of Covent
I think he cannot, but that the Heir ought to have the Action. [167] There are some Covent's of which none shall have the Advantage but the Party or his Heirs 42. Ed. 3. 4. Fitzg. Cove- nant 17. And those Covenants are such as are knit to the Estate Palmer 558. 2. Lev. 13. 92. 1 Vent. 148. 161. Raym'd 213. 2. Saund. 367. All Covenants for the Security of a Title are knit to the Estate, and the Heir shall have the Advantage of the Breach of them unless the breach of them be Committed in the lifetime of the Ancestor. There the Exor may maintain an Action. So it is ruled in the Case of Lucy and Lovingston 1. Vent. 175. 176. 2. Lev. 26. But it is Admitted that if the Breach be after the death of the Ancestor the Heir must bring the Action, And the reason is plain, Because the Heir Sustains the Loss In the Case of Bull and Trankaster Winch 19. the Plt. as Ex'or brought Action and Declared, that the Deft. En-
R57
SIR JOHN RANDOLPH'S REPORTS
feoffed his Testor in certain Lands and Covenanted that he was Seized of a good Estate in fee And assigns a breach, and after a Verd't upon a Motion in Arrest of Judgm't it was held by Hobart and Winch, that this Coven't was annexed to the Land, And the Exor cou'd not maintain his Action
So it is Clear that the Adm'r in this Case cou'd not have maintain'd an Action of Covenant. But this is an Action of Debt upon the Bond for the performance of y'e Covenants And the Heir cou'd not have an Action upon the Bond. Which must be agreed
Ans'r. The Bond and the Covenants cant be seperated. But the Bond depends upon the Covenants, where the Covenants are void, the Bond for performance of them is void also
Soprani and Barnardi vs. Skarro. Yelv. 19. and the same point is admitted Yelv. 13. If an Obligation be given for the paym't of Rent. and a Stranger enters whereby the Rent is discharged, the Oblig'n is discharged also. Brook. Title. Obl. pl. 6.
Therefore if there be a Connexion between the Bond and the Coven't one that has no right to an Action upon the Cove- nant cannot have an Action upon the Bond. Besides the Right and the Remedy must be Inseperable. And it is a Contradiction to say, that one Man has a Right to a Thing, and that another shall have a remedy to recover it. Whatever an Ex'or or Adm'r recovers is Assets. But if the Plt. in this Case shou'd recover he must Account to the Heir. So that to give them a Judgment will Occasion a Circuity of Action, which is against the Wisdom and Policy of the Law.
This I think is clear reasoning, and I pray Judgm't for the Deft. (tamen[?]).
But the Cause was ended by Compromise without Argument.
[168]
April 1731
BERRYMAN & Ux'R US. COOPER & UX'R In Chanc'y Fr Plt.
Mrs. Cooper was the Wife of John Bushrod and by him had two younger Children, the Plt. Sarah, and another Daughter. After the death of Bushrod upon a Treaty of Marriage between her and Willoughby Allerton she insisted that Allerton should give his Bond for the payment of £.100 apiece to the two Daugh- ters, who were not so well provided for as the other Children
R58
VIRGINIA COLONIAL DECISIONS
of Bushrod, Accordingly Allerton entered into two Bonds for the payment of these several Sums to the Plt. Sarah and the other Daughter and this was upon good Consideration for Mrs. Bushrods part of her former Husbands Estate was to vest in Allerton upon the Marriage and so she put it out of her Power to make any farther provision for these younger Children
The Marriage took effect and some time afterwards Allerton made his Will and gives considerable Legacies to his Wife upon Cond'n that she shou'd discharge these two Bonds, and died. She Accepts the Legacies and marries the Deft. Cooper and now they refuse to pay the Several Sums pursuant to the Bonds
The Plts. have Exhibited their Bill to Compel the Deft. to a Discovery and to pay the 100£. to them
The Deft. Mrs. Cooper in her Answer pretends that she only Intended that these two Sums shou'd be paid by Allerton in Case Allerton Survived her, not doubting but if she shou'd Survive him she shou'd have it in her Power to provide sufficiently for her Children as she shou'd think proper And she says that she does not know that her Husband Allerton gave her more on Acco't of these Bonds than he wou'd have done if they had not been in the Case
But it is observable that she says nothing of any Provision being Stipulated upon the last Marriage for any other Children And she has as much put it out of her power to do anything for them as she did upon her Marriage with Allerton And that she was Contented with Allertons Wills and therefore it must be supposed that his charging the paym't of 2006. upon what he gave her was no great hardship upon her
However our Case in short it this
Mrs. Bushrod Mother of the Compl't Mrs. Berryman upon her Marriage with Mr. Allerton upon the Consideration of her Fortune which was by the Marriage to vest in him Obtained a Bond for the paym't of 1006. to her Daughter the Compl't Berryman. Allerton by his Will gives her a part of his Estate and charges it with the paym't of this 100% [169] She gets the Bond into her possession, and now refuses to pay the Money.
And the question is Whether we have not Equity sufficient against her and her present Husband to Compell her to it
It is true that her insisting upon this Bond was a voluntary Act, But it was a very prudent and Laudable Action to make some Provision for her Children when she was about to transfer
R59
SIR JOHN RANDOLPH'S REPORTS
the property of all she had to ano'r Husband. It was her duty to do so Because Children have a sort of natural Right to a share of the possession of their Parents
When she had got that Bond there was a Right vested in the Compl't to demand the money when it became payable and no Subsequent Act of hers cou'd Controul or alter this right
Her keeping the Bond in her Hands and now endeavouring to Suppress it has only destroyed the Merit of what she did in obtaining it but can have no effect upon our right
A Voluntary Deed is for ever binding upon the Party that makes it his Heirs or Ex'ors-and cannot be revoked with't an Express power of Revocation reserved in the Deed.
So that if instead of this Bond from Allerton she had given her own Bond before her Marriage to pay each of her Daughters 100£. She and her Husband, during the Coverture, and after his death she alone wou'd have been liable to pay the money and no Act of hers cou'd have acquitted her of the Duty
Then if she cou'd have no Power to defeat the Bond in that Case, she must have as little in this
Where we have a right vested by the Act of another, first by the Bond and afterwards by the Will of Allerton who charged the payment of this Money upon the Legacies given to her
And tho' she says she does not know that he gave her more upon the Account of this charge than he wou'd have done with- out it, yet his Intent is clearly expressed in the Will, that some part of the Legacies were given to Enable her to pay this Money. And her Acquiescing under the Will & Submitt'g to the Charge by Accepting the Legacies, has with't Question made her liable
If she had not a good Bargain she might have renounced the Will: And in so Considerable an Estate as Allerton had the Law wou'd have intitled her to an Ample Provision And we must then have taken our remedy upon the Bond But as she has Got the Bond and the Estate out of which it is to be satisfyed in her Hands we can only resort to her
As to Precedents, the Chancery Reports abound in Cases of this nature Villers and Branock 1. Vern. 100. The Lord Chan- cellor declared if a Man will Improvidently bind himself up by a voluntary Deed and not reserve a liberty to himself by a Power of Revocation, the Court of Chancery will not loose the Fetters he hath put upon himself, but he must lie down under his own folly. For if you wou'd relieve in such a Case you must conse-
: R60
VIRGINIA COLONIAL DECISIONS
quently Establish this Proposition That a Man can make no voluntary disposition of his Estate but by his Will only, which would be absurd Reeve and Reeve 1. Vern. 219. A charges Land in D with a [170] Portion for a Daughter by a first venter and then marries and settles part of the Lands for the Jointure of a second Wife, who has no notice of the Charge A believing the Portion wou'd take place of the Jointure gives other Lands in Lieu thereof, The wife by Combination with the Heir refuses to accept the Devise, But it was Decreed that the Daughter shou'd hold the Devised Lands till her Portion was paid Allen and Arme 1. Vern. 365. Where a Man in his Sickness made a voluntary Surrender of Copyhold Lands to the use of his Wife's Nephew, and afterwards married a Second Wife and had Children and made another Surrender to their use And sought Relief against the first Surrender to set it aside But the Lord Chanc'or declared he saw no Equity in the Case
Bale vs Newman. 1. Vern. 464 - fr Cur. a Voluntary Settle- m't is not revokeable and the same cannot be Devised by the Will tho' for the payment of Debts.
Clavering and Clavering 2. Vern. 473. Old S'r Jas. Clavering 1684 makes a Settlement of an Estate subject to some Annuities in Trust for his Grandson and Heir and his Heirs & afterwards in 1690 makes another voluntary Settlement of the same Estate to the use of his Second Son for Life, and to his first and other Sons in Tail and by Will gives a considerable Estate to his Grand Son Altho' it was prov'd that James always kept the first settle- m't in his Custody & never published it And it was after his death found among his wast Papers And the Deed of 1690 was often ment'd by him and told the Tenants his Second Son was to be their Landlord after his death Yet he cou'd not be Relieved ag't the first Settlement, by the Decree of the Lord Keeper and Affirmed in the House of Lords
And it was Decreed for the Plts.
The Defts. Counsel insisted that the Bonds given upon what was disclosed in the Answer previous to the Executing of them might be Construed to be only in Trust for the benefit of the Wife in Case she shou'd Survive her Husband. Cited two Cases 2. Cha. Ca. 26. & 232. And two of the Court were of that Opinion. But neither of the Cases proved anything to the purpose but rather against such a Construction.
4 .
R61
SIR JOHN RANDOLPH'S REPORTS
October 1731.
.1WADDY and Ux'r vs STURMAN & al. in Chan. Fr Plt.
The Case
John Jordan being possessed of a very Considerable p'sonal Estate sufficient to pay all his Debts with an overplus by his last Will and Testament in writing bearing date the 6th Day of Februery in the [171] Year 1693. gives several Legacies to his Sons in Law John Spence and Thomas Spence (who were Bothers) in this manner " I give to my Son John Spence 25£ Steg. to be laid out in Negroes to be delivered to him upon the " Day of his Marriage also 4 Cows &c. Item I give to my Son " Thomas Spence two Negroes Mingo and Pegy to be delivered " at the Day of Marriage and ten Head of Cattle &c. But my " Will is, that if the s'd John or Thomas shou'd die without · " Issue, that then whatsoever is Bequeathed to them the Sur- " vivor shall have to him and his Heirs and Assigns." The two Negroes were delivered to Thomas by Dorcas Jordan the Testors Wife and Exec'x, and he possessed them during his Life & died with't Issue in the Life time of John who had the Negroes in possession and died leaving only one Child (the Compl't Waddys Wife) After John Spences death Dorcas Jordan brought an Action of Trespass in the General Court ag't Laurence Pope and his Wife, who was the Widow of John Spence, for recovering Mingo and Pegy and a Child that was born of her And obtained a Judgm't Accordingly the 23. October 1700, ag't the Defts. The Compl't Jane being at that time ab't 2 Years old.
After the Judgm't the Negroes were taken by Execution & Sold or disposed of by Dorcas Jordan and are now with their Increase in the Possession of a Person in Maryland
And the Compl'ts have exhibited their Bill ag't the Defts. Exors of the last Will & Testam't of John Spence & the Surviving Ex'or of Dorcas Jordan, And the End of the Bill is to recover the value of these Negroes with Interest out of the Estate of Dorcas which came to the Hands of the Defts. Testor. They severally pleaded the Act of Parliament made in the 4th Year of the Reign of H. 4. And the Act of Limitation made in Virg'a Anno 1705, in bar to the Bill. And have Answered that John 1S.C. in MSS. Virg. Rep. in Congr. Libry. and printed in Jeff. Rep. [Note by W. G.]
2
R62
VIRGINIA COLONIAL DECISIONS
Sturman Acted jointly with other Ex'ors, that they paid all the Debts & Legacies, That they don't know that any part of the Estate came to his Hands seperately from the other Ex'ors. but they believe no part of it remained in his Hands at the time of his death The residue of the Estate being divided & distributed According to the Will & as to the Judgment they believe there was no fraud or Covin in the obtaining it. But that it was fairly given upon the Justice and Merits of the Cause
And that several of the Increase of these Negroes which were Recovered by the Judgement were disposed of by the Will of Dorcas & delivered Accordingly Vid. the Answer as to this
The first Question is Whether the Compl't - (Waddys Wife) hath any right to demand these Negroes or the value of them by the words of Jordons Will, And if she has, then whether the Judgm't by the Stat. [172] H. 4. or the Act of Limitation shall bar that right
As to the Compl'ts right to the Legacy given in Rem'r to her - after the death of Thomas. I think it is clear & the Rem'r good. For tho' the Law doth not allow the Rem'r of a Chattle (as Negroes were then) to be Limitted after dying without Issue generally, Yet in a Will if a Man gives a Chattle to one and if he die with't Issue to another, that Rem'r is good. It is true in the Legal Construction of the words (dying with't Issue) a Man is say'd to die with't Issue when his posterity fails, if it be 100 Years after his death. But in Common Parlance, or Accord- ing to the Vulgar Acceptation, a Man is said to die without Issue when he have no Issue at his death.
And wherever by the words of a Will the Vulgar Acceptation can take place Law and Equity will construe them so as not to frustrate the Testors Intent. So in this Case the Testor plainly Intended that if Tho's died with't Issue in the lifetime of John, then & not otherwise his Legacy shou'd go to John, therefore the Rem'r was good and vested in John when he Survived Thomas So is the Case of Pinbury & Elkins 2. Vern. 788. 766. where Chattels were Devised to one and if she died without Issue, after her decease to another It was held by the Lord Chancellor, that the words (after her Decease) shewed the Testors. Intent to be, that if she left no Issue living at her death the Rem'r shou'd take place and therefore Decreed Accordingly.
-
:
R63
SIR JOHN RANDOLPH'S REPORTS
But if the Rem'r was not good the whole property vested in Thomas and then we claim as next of kin. Then consider the right Dorcas had to recover these Negroes It is admitted in the Case that she delivered them to Thomas and after that she had no right to demand them again, not even for the paym't of Debts, but the property absolutely vested in Tho's upon the Assent and Delivery.
So is the Case of Noel & Robinson. 1. Vern. 90. 2. Vent. 358.
Now as to the matter of the Pleas. The Stat. of H. 4. was never intended to take away the Jurisdiction of the Court of Chan'cy. As appears by the Case stated upon that Statute, and the Arguments upon it At the End of the first Cha. Rep. But if it did that Stat. cannot be carr'd farther in Equity than at Law and no Judgm't by that Statute can bar any but those who were Parties to the Judgm't.
So is the Case of Lock & Norborn 3. Mod. 143. As to the Stat. of Limitations that is likewise no bar in this Case, because it is a Suit for a Legacy And a Legacy is not within that Stat. Between Parker and Ash. 1. Vern. 256. By Lord Chancellor. [173] Now if we have a right and are not barred by either of these Statutes, we can by the Rules of Equity pursue the Estate of the Testor John Jordan or his Ex'or Dorcas into whose Hands soever it hath come.
So is the Case of Nicholson and Sherman Cha. Ca. 57. And if the Exors of the Surviving Exor of Dorcas have nothing in their Hands, and it be true that her Estate was deliv'd to several Legatees of her Will, we must make them Parties to the Bill and bring them to Answer.
And it was Decreed Accordingly by the Court.
1THRUSTONT US PRATT App'l Fr Deft.
Appeal from a Judgm't in Westmoreland Court in Ejectmt' Robert Howson was Seized in fee of 450 Acres of Land w'th the Appurt's and died leaving Issue three Daughters - Ann, married to Rice Hoe, Mary married to Charles Calvert, And Frances, who died unmarried.
8. Jan'ry 1699, these three Sisters make Partition of these Lands Descended from their Father, and soon after Frances died with-
1S. C. in MSS. Virg. Rep. in Congr. Libry. [Note by W. G.]
R64
VIRGINIA COLONIAL DECISIONS
out Issue And Calvert and his Wife entered and died leaving Issue two Daughters.
These two Daughters have Legally Conveyed their Estate in the Premises to the Defts. Father John Pratt by Deed dated Jan'ry 27th 1718.
The Lessor of the Plt. as Heir at Law of Ann Hoe entered into a Moiety of the part of Frances and Leased it to the Plt. The Plt. entered The Deft. ent'd upon him and Ousted him and he brought an Ejectm't in the County Court where Judgm't was given for the Deft. And now the Sole Question must be Whether the Entrey of the Lessor of the Plt. is not barred by the Stat. of Limitations
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.