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. II > Part 12
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If these in Plt.s fav'r 3. How far Plt.s loss & Estate in Defts. hands are ascertained.
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1. Point a strange one - common form of Deeds - words of course or at most intended to supply only little mistakes
In construction of Deeds Intention to govern What was con- tract & intent here
Grantor in cons. of 6.120 St. conveys two parcels of Land containing by Estim. 2520 a's be the same more or less Coven'ts to Warrant premes & every part thereof - that he is seised in fee & has good right to convey - that Grantee shall quietly enjoy and that he will make further Assurance of all & singular before granted prem'es
This usual form & Cov'ts of purchase for va. cons. No instance that (more or less) must oblige purchasor to be satisfied with half he bought.
Here is a val. cons. equivalent to Land sold at time
Reasonable to suppose so much was agreed for
Manner of penning Cov'ts Shew intent, further
If Cov'ts not intended to extend to quantity Would have been exception.
Pannel's Deed to Chew Shews what Chew intended to purchase & the same he intended to sell
These Circumstances prove contract & intent More or less words of course added currento calamo can't controul plain Agreement
If words were unusual something might be inferred
Notion new. No Authority.
116] Universal concern to purchasors -- If but 100 a's we must have been contented according to Doctrine of Deft.
Introductory of fraud
2. point. Whether the Estate given Defts. liable being before eviction 2 of Defts. J. C. & Johnston pretend to something of a cons. viz marriage It will be therefore proper to consider 1. as voluntary Then the pretended cons.
As voluntary fraudulent & void ag'st. Cred'rs.
By Common Law & old Stat. fraudulent Gifts to deceive Cred'rs void 13. Eliz 5 useful Stat. made [sic].
For this point see Prec. Ch. 521. Case of Parslow & Weedon cited It should seem by that case that a voluntary disposition of lands even to a stranger is good ' ag't a bond Cred'r Sed. 2. And Note it is sayed not to be within Stat. ag't fraudu- lent devises w'ch is true. But still may be within Stat's ag't fraudulent com's ce also. Eg. Ab. 149. 7. S. C.
Preamble to this effect For avoiding & abolishing of feigned covinous & fraudulent Feoffm'ts Gifts &c. devised to delay
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hinder or defraud Cred'rs & others of their just & lawful Actions Suits Debts Acco'ts Damages Penalties &c.
Enacts that every Feoffm't Gift &c. by writing or otherwise made to or for any intent or purpose before declared or ex- pressed shall (ag'st the person whose Action &c. are shall or might be any wise disturbed hind'red delaied or defrauded) be void &c. Any pretence colour or feigned cons. notwithstand- ing
Proviso not to extend to Gifts upon good cons. & bona fide Act penned with Care & caution
Every voluntary Gift by Person in debt fraudulent within this Stat.
Law supposes so tho' perhaps not done with direct intent to defraud
Cases Holcraft Di. 294. b. Marg. Fletcher & Lady Sedley 2. Vern. 490. Sr. Anth'o Bateman 1. Mod. 76.
Obj. Here is a Gift made before Plt. damnified
Q. then is whether this differs the Case I conceive not
Plain. 13. El. had in view Cases of this sort Words are to defraud Cred'rs & others of their Actions Suits Debts Damages &c.
In Pauncefort & Blunt cited in Twine 3. Co. 82. resolved it extends not only to Cred'rs but to all others who have cause of Action or Suit Penalty or Forfeiture
Sed Vide. Talbot.
Here we had cause of Action immediately upon Cov't that he had a good title Such Actions not new here Washington & Wyat But if that was not the Case We are within the provision of the Act Words are " Ag'st P.sons whose Actions &c. are shall or might be anyways delaied hind'red or defrauded
Now that we have cause of Action can't be denied & our Action is hind'red & defrauded by these Conveiances
Suppose a Bond for paiment of Money at a future Day Act always construed liberally
Pauncefort & Blunt before cited One Indicted of recusancy [117] Doctrine on the other side encouragem't to fraud Men will not be afraid to dispose of bad titles
General concern to purchasors
Law implies a Trust in Cases of this sort Twine 81
Consider now Case of J. C. & Johnston
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Johnstons says upon a treaty of Marr. with the Grantors Dau'ter in 1723 he promised him as a portion 1000 a's of Land & a Negro boy worth £.150. That he rec'ed some things which he mentions but not near the value
No proof of this promise but seems contradicted by two Wit- nesses Nich'o & Eliz. Hawkins
Defts. Oath no Evidence Would not be so ag'st Grantor nor cons. a Cred'rs Impossible to prove negative viz. No such prom- ise Circumstances alone are all that can be expected If Defts. Oath to prevail singly Act easily evaded Dangerous
Less reason here because Answ'r contradicted in other points.
He says he had only two Negros We prove by 3. Witn's N. Hawkins Franklin & Graves that he had 3. & by Trible & Frank- lin that he had 220 a
J. C. says his fa'r being indebted to one Cary told him if he would help to pay that debt he would give him 335 a of Land & 4 Negro's That he paid £25. his fa'r in 1724 put him in pos'sion & in 1728 in cons. of H. B.s consenting to Defts. marr. his Dau'ter by Deed made same over & 2 Slaves more
No proof of this Money being paid which might easily be had
Discourse betw. Chew & H. B. proves Estate was given before marr. & before that discourse So could not be to induce H. B.s consent We have Deed. cons. only £8. & natural Affection Defts. Oath not to prevail ag'st this
But let us consider this in the strongest light for Defts. In one case fa'r gives his dau'ter a portion but no Settlem't made In the other he gives his Son an Estate to procure a good match but no Settlem't neither
It is Settlem't only can make a val. cons, for then they are in nature of Purchasors Settlem't after marr. not good ag'st Cred'rs Upton & Bassett Cro. El. 445. Cro. Ja. 158.
2 Bac. Abr. 608.
If this allowed easy for a man to cheat his Cred'rs
Marr. only val. cons. where Settl'mt
But there being no Settl'mt the marr. makes no difference but the Gifts are equally voluntary as if there was no marr. in the case
As to Johnston I say he has not proved any such promise on his marr. as he pretends Or if there was As he made no Settl'mt he is not to be considered as a Purchasor
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As to J. C. he proves nothing of the money he pretends to have paid. Or if he did he could only be a Purchasor pro tanto. As to his marr. it is a meer farce to insist upon it But there is no proof the Est. [118] was given in Cons. of that Marr. The Deed of Conv'e proves it was upon another cons. viz. natural love & £8. & that ought to prevail before Defts. Oath If there was proof of the £.8. being paid he might be a Purchasor for so much But as the Deed contradicts his Ans'r as to the quantum paid & there is no proof of either in such an incertainty the Court must reject both as I hope they will
The rule laid down in Twine's Case is that a Gift which defeats others sho'd be made on as high & val. cons. as the things which are thereby defeated are according to this rule nothing but money can be a val. cons. to defeat a debt And then the marriages are nothing to the purpose
If the Court is of Opinion that the Estate in the Deft.s hands ought to be subjected to the Plts demand It will be proper in the next place to see what the loss & damage of the Plt. is.
Upon the proofs by moderate computation it was estimated at two hundred & forty pounds
If the Court are not satisfied with the computation they must direct a trial at Law on a quantum damnificatus
The next thing to be considered is in what manner the Estate in the Defts. hands is to be made liable And I take it the course of Equity is to decree the Estate to be delivered up & sold to satisfie for the Grantees are considered meerly as Trustees as has been already observed
But if this shall be thought severe as the Defts. have settled upon the Lands we hope they shall be accountable for the full value now for if the Estate was in the hands of the Heir or Adm'or we sho'd recover according to that value
The first point was only spoke to by the Defts. Upon which A great majority of the Court were of Opinion that the Plt. ought not to be relieved as the Conveiance was of so much more or less unless the Plt. had been evicted out of the whole Which I think was a strange determination
KNIGHT VS. TRIPLETT In Canc.
The Deft. made a purchase of certain Lands Of part whereof Plt. had a Lease for Years which was not recorded The Deft.
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had notice of this Lease before his purchase Yet brought an Ejectment & had Judgm't at Law And this Bill was brought to be relieved ag'st this Judgm't And to establish the Lease ag'st the Deft. in regard he had notice of it [119] and so he was not deceived but with respect to him it was the same as if it had been recorded.
To this Bill the Deft. Demurred And to support the Demurrer it was argued that by the Act of Assembly of the S. Geo. 2. c. 6 this Lease not being recorded was void ag'st a Purchasor.
The words of the Act are to this purpose All Deeds &c. whether for passing Freehold or term of years not recorded - shall be void as to all Cred'rs & subsequent purchasors
It is a rule that Equity never decrees ag'st an Act of Parl't which indeed would be transferring the Legislative power . 2. & vide 1 W'ms 620.
It is true this Act was made to prevent Purchasors being de- ceived & here the Purchasor had notice & so could not be de- ceived
But I answ'r the Act has made all Deeds not recorded void & there is no exception where the Purchasor has notice. And as the Act makes no exception neither can a Court of Equity
This notice can never make that good which the Act has declared void Besides Deft. might think he might safely pur- chase notwithstanding the Lease as the Act had declared it void & that is the truth
In this view it must bring a strange hardship upon the pur- chsor He is informed of an Incumbrance Takes advice of a Lawyer who tells him the Incumbrance can't affect him because an Act of Parl. had declared it void And yet afterw'ds this Incumbrance shall be set up under pretence of notice
There is no instance of this in the Law but there are Cases exactly parrallel ag'st it.
2: & vide Blades vs. Blades Abr. Ca. Eq. 358.
By the Stat. 27. El. 4. ag'st fraudulent Conveiances it is Enacted that all Deeds made to defrau'd or deceive Purchasors shall be void This is very like our Act - All Deeds not recorded shall be void
A man makes a purchase & has Notice before of a Deed that was fraudulent within this Stat. And it was adj'd that he should avoid the fraudulent Deed notwithstanding the notice for this
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reason Because the Act had by express words made it void & his notice could not make that good which the Act had declared void. Slandens Case cited in Goochs 5. Co. 60. b.
The Case of Porter & Jones was much harder than this for there was a purchasor for val. cons. without any kind of remedy whereas the Plt. may have remedy for Damages ag'st Thompson But there the Court would not relieve because this very Act had declared the Deed was not binding
Ante page 88.
The hardship can never induce the Court to decree ag'st a positive Law Besides the hardship is not so great as there is a remedy ag'st Thompson And the hardship may be greater upon the purchasor [120] who has paid the full value of the Land upon a supposition the Plts. Lease was void & who purchased under the sanction of the Act
The Demurrer was allowed & the Bill dismissed with Costs. Sed 2.
APRIL COURT MDCCXLI. SENIOR VS. MORRIS
Error to reverse a Judgm't of the County Court of Caroline in an Action of Debt brought there by the Deft. ag'st the Plt. Senior
The Plt. below declared on a Bond in the Penaly of £40. The condition of which was to stand to the Award of Fleming & Baber arbitrators provided they shall agree & if they disagree then to the award of an Umpire to be chosen by them
The Deft. craved Oyer & pleaded no Award The Plt. replied that the Arbitrators took upon them the burthen of the Award but disagreeing in several matters they chose one Scott an Umpire And that they & Scott having taken upon them the burthen of the Award they made an Award which is set forth
It is a Masterpiece of Nonsense
The Deft. Demurred Judgm't for the Plt. & a Writ of Enquiry The Jury gave £5.12.8. Dam's
Judgm't entered for the Dam's & not for the penalty of the Bond
On Demurrer Judgm't ought to have been given for Deft.
Obj. 1. The Award being made by the Arbitrators & Umpire is not according to the Submission or the power given them
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The power given to the Arbitrators is to determine if they can agree If not they are to chuse an Umpire ,.
The Award recites that the Arbitrators could not agree Yet they join in making the Award
Upon their disagreement their power was determined & the Umpire was solely to determine
The Arbitrators & Umpire are different Judges & cannot have a concurrent jurisdiction 1 Sid. 455. Coppin & Hurnard 1 Dam. 540. 2.
There never was an instance of such an award
Arbitrators can't determine part & Umpire other part unless expressly so provided 1. Ro. A. 262. 7. 8. Danv. 542.
[121] Umpire in the common signification denotes a person that is to make an end if others cannot
It is true if a submission be to four & to the Umpirage of J. S. they may all join but it is otherwise if their power is divided 1. Bul. 184. which is in point
Obj. 2. The Award is uncertain
An Award is in the nature of a Judgment & ought to be certain Danv. 543. 1. & Notes .. . & ought to be wholly decisive.
Can there be say'd to be certainty in Nonsence
Here is nothing actually awarded It is say'd they agree the Gaming to be intirely false Gaming and not anything to be re- . covered that was supposed to be won by gaming & that the said Senior pay all Costs &c.
Nothing certainly awarded. Not that Suits shall be dismiss'd Nor is it say'd what Costs Senior shall pay It does not put an end to the Controversie No Rel. . to be executed. Ex parte.
An Award to pay Costs of such a Suit generally not good 1. Sal. 75. Otherwise if such as Master shall tax [sic]
But here it is not sayed the Costs of what Suits
Obj. 3. Judgm't wrong should have been for the penalty &c. Judgm't reversed
SMITHER US. SMITHERS. Lessee App. from Glo'ster
Ejectm't for the moiety of 864a of Land A special Verdict is found Upon which the case is " John Smither seised of the said 864a in fee & having issue 8 Sons devises as follows " I give · " to my Wife all my full & whole Estate moveables & immove- " ables so long as she lives the wife of John Smither And at her
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"death All to be equally divided among their Children only " Moses Smither I give & bequeath besides one young Cow & " more I give & bequeath to my Son Ambrose one feather bed & " furniture & one young Mare & then the full & whole Estate 'to be equally divided amongst them under before as the Land " & all " [sic]
The Sons entered & were seised & 3 of the younger Robert Richard & Ambrose sold & conveied their right to their Bro'r Moses who is dead & the Lessor is his Heir The Deft. John is the eldest Son of Testor.
The question in point of Law is Whether the Sons by the devise to them have an Estate in fee or for life only
But the Verd't is very imperfect It is not found that the testor's wife is dead And by the words of the Will the Sons can have nothing till after her death The Lessor cannot therefore have Judgm't on this Verd't.
[122] Then the County Court have given Judgm't for a Moiety of the 864a whereas if the Sons take an Estate in fee it is plain the Lessor is not intitled to so much for Moses her fa'r is ex- pressly excluded by the Will She has only the right of 3 of the other Sons There were 7 besides Moses She cannot then be intitled to more than 3 sevenths The County Court have there- fore certainly erred in giving Judgm't for a Moiety And the Judgm't must be reversed
But I conceive the question in point of Law is ag'st the Lessor And that the Sons have only an Estate for life by the devise above & that the Reversion descended to the heir at Law the Deft.
The testor devises his full & whole Estate moveables & im- moveables to his wife for life if she continued his Widow for so it must be understood And at her death All to be equally divided among their Children Then gives some particular Legacies & concludes thus Then the full and whole Estate to be equally divided amongst them under before as the Land & all.
These are all the words of the Will that concern the present question By the first words " his full & whole Estate moveable & immoveable " there is no doubt but his Lands will pass And so in consequence they will by the word all in the devise to the Children but then there are no words to shew what Estate or interest in this All the Children are to take It is only to them
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to be equally divided No mention of heirs or any other word to shew the testor intended an Estate of Inheritance or any more than an Estate for life As to the words " equally to be divided " they import no more than that the Children shall hold separately but do not shew how long they shall hold Nor is there anything in the latter part of the Will that shews any intention to give an Estate of Inheritance to the Children or more than an Estate for life the words import no more than what was sayed before " My full & whole Estate is to be equally " divided between them under before as the Land & all." The words (under before as) are insensible but the whole clause can import no more than this My full & whole Estate to be equally divided as before the Land & all So that it is only repeating what was sufficiently expressed before with this difference only that the Land was not expressly mentioned before tho' it was sufficiently implied by the word immoveable There is nothing here any more than in the former part of the Will to shew what interest or Estate in the Land the Children shall have
It is a common doctrine & not to be denied that the intention of the Tes'tor is the rule for expounding provided this intention be sufficiently expressed in the Will & is not contrary to the rules of Law but where the intent is not plain the same construction is made of Wills as of Deeds Wilds Case.
Upon this account the Law dispenses with all form in Wills Nor are the same words necessary to create an Estate of Inherit- ance upon a Will as upon a Deed. Yet there must be some word or expression in the Will to shew a tes'tor intends such an Estate Or else it will no more [123] pass by a Devise than it will by a Conveiance
And I take it to be a settled rule in the construction of Wills that if a man devises his Lands or all his Lands to another with- out more or without adding some word whereby it may appear he intended more than an Estate for life that only an Estate for life passes by such a Devise 1. Sal. 235.
Barry & Edgworth Eq. abr. 178. agr'd
The words here are " All to be equally divided among my Children ". Neither the word (All) nor the words (equally to be divided) shew any intent that the Children should have longer than for life The word (All) can only import All the particulars before specified that are given to the wife as I shall shew more
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fully presently And (equally to be divided) import only that they shall hold separately but not how long as has been adjudged in many instances
A man devised Lands to his Sons & Daughters to be equally divided And held They had only an Estate for life & not in fee for the equal division does not go to the continuance of the Estate but to the several occupations 1. Ro. Abr. 834. 13. By Coventry L'd Keeper upon advice with Justice Jones who cer- tified the Law to be so.
A man having three dauters devised his Land to his wife for life & after his death to his three daughters to be equally divided Adj'd that his dauters had only an Estate for life King vs. Rem- ball 1. Ro. Abr. 834. 1.
This is exactly the Case here
One devised all his Lands & Goods after his debts & Legacies paid to R. T. & M. his Children to be equally divided between them Adj'd only an Estate for life passed to the Children Dickens vs. Marshall Cro. El. 330. Mo. 594. pl. 804. S. C.
These Cases sufficiently prove that the words equally to be divided do not enlarge an Estate given but refer only to the several occupation But then here are the Words my full & whole Estate in the first part part of the Will in the Devise to the wife And also the same words with the addition of Lands & all in the latter part of the Will And these are the words if any that can possibly carry a fee But I conceive they cannot by any reasonable intendment or construction in this Case
I shall readily agree that if a man devises All his Estate or his full & whole Estate as here or all the residue of his Estate with- out more that a fee will pass by such Words And this is all that can be collected from the great Case betw. the Countess of Bridg- water & the D-ss of Bolton 1. Sal. 236. & 6. Mod. 106. Tho' in that Case It was not those words alone which influenced the Opinion of the Court There was a power given by the Will to the E. of Bridgwater the Devisee to give to his Children as he thought convenient which further evinced the tes'tor intended a fee
But I conceive a great difference betw. a Devise in that manner & this now before us
It is certain that the word Estate in a Will may sometimes [124] comprehend both the thing & the tes'tors interest in it but it is as certain that it sometimes signifies only the thing & not the interest of the tes'tor in that thing
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Where a man gives all his Estate without more it is reasonable to suppose he intends both the thing & the interest but where a man gives all his Estate for life There it is plain he can't intend all his whole interest & therefore Estate in that case can be intended only of the thing
In the Case of Hanchet & Thekwall 3. Mod. 104. the Devise was thus I give & bequeath to my Son Nich my Houses in West- m'r And if it please God to take away my Son Then I give my four dau'ters share & share alike Here the word Estate re- ferring to the Houses it was held & agreed that the tes'tor could not mean his interest but only the Houses & that therefore by those words the dau'ters took only an Estate for life
Now in this Case I apprehend it to be extreemly plain that the tes'tor by the word Estate meant only his Lands & Goods & not his interest in them He gives his full & whole Estate move- ables & immoveables to his wife for life I would ask what Idea it can be supposed the tes'tor annexed to the term Estate here Certainly he could not mean his interest in his Estate because he gives it to his wife for life only He must then understand by it the thing only which indeed he has further explained by adding the words moveable & immoveable And it is in effect no more than if he had sayed I give my Lands & Goods to my Wife for Life.
Then follows after my wife's decease all to be equally divided among my Children All what? Why all his Lands & Goods or his Estate moveable & immoveable for they are the same Not all his interest in the lands & goods The word All must neces- sarily refer to the things the particulars before specified
And it appears by the case of Dickens & Marshall before cited that where a man devised All his Lands & Goods after his debts & Legacies paid to be equally divided among his Children that they had only an Estate for life And the same point appears in Pettywood & Coke Cro. El. 53. post.
The latter words in the Will are the same in substance with those that go before. After giving some legacies he says Then the full & whole Estate to be equally divided among them (under before as) Land & all Now what can be the full & whole Estate meant here but that he had mentioned before & given to his wife When a man makes use of the same expression twice. in the same Will it is reasonable to suppose he means the same thing in both places It is I think beyond all question that by
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the words full & whole Estate in the devise to his wife he could mean only the thing that is his Lands & Goods & not his inter- est in them And must we not then suppose he meant the same thing in the latter part of his Will The insensible words " under before as " which I think must be understood as before plainly refer to the former devise If then the former Devise does not carry a fee Neither can this And here by the addition of the Words "Land & all" I think it is still further [125] evident that by Estate he meant his Land & not his interest in it And if so there are no words to give the Children more than an Estate for life
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