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 2
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VIRGINIA COLONIAL DECISIONS
out the 2200 Acres before any Grant of the Same signifyed nothing but an Intencon. at that Time to make a Division but could have no Effect they having no Estate to divide till the Patent passed for the whole 5200 Acres together And after the Patent there is nothing done that shews any Intention to make a Division or destroy the Jointenancy and then the whole came to Pannil and his Heirs by Survivorship & nothing passed by Prosser's Will. So that to find out the Title We must look into Pannil's Will.
It is not Stated in the Case Whether the Testator Pannil had any other Lands than those he had Jointly with Prosser. But yet in my Opinion that Matter will make an Alteration in the Case; for all Parts of a Will must take Effect if possible.
Now if he had other Lands The first Devise in the Will may have Effect by passing these other Lands to his Wife & Children and their Heirs as Ten'ts in Com'on. Each of them and their Heirs being intituled to a fifth part of such other Lands And then all the Lands at Matapony will pass to Prosser and the Children as Ten'ts in Com'on in Fee Simple. That is to say To each of them & their Heirs a fifth part."But if Pannil had no other Lands but those at Matapony I am of Opinion that both Clauses of the Will must be construed as if Joyned And then the Wife - Children and Anthony Prosser will All be Ten'ts in Com'on in Fee Simple and Each of them and their Heirs intitled to one Sixth Part.
So that if there were other Lands, Isabella is entitled to one fifth of these other Lands by the first Devise and to one fifth of the Lands at Metapony by the latter Devise & Prosser to one fifth of Metapony. But if Pannil had no other Lands but those at Metapony Then I am of Opinion that they are only intituled Each to a Sixth Part of those Lands.
The Death of Anthony Prosser before Division makes no difference It being by the Will a plain Tenancy in Com'on & his Share did not survive but descended to his Heir The Difficulty in construing the Will lying in the determining what land or propocon land passeth by the Will to Each P'son, not in deter- mining w't Estate Each Devisce hath in the Land w'ch passeth to them by the Will. Ri : Duncan Dee
Jan. 14th 1719
[Note by W. G.] (The foregoing opinion is published in North Carolina Repos. 27-30.)
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BARRADALL'S REPORTS
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CASE OF MR .... GREEN OF GLOUCESTER W'TH SEVERAL OPINIONS THEREON
King Charles the Second by Letters Patent bearing date y'e 10th day of Feb'ry 1662 Granted 1100 Acres of Land Scituate in the County of Glouc'r in Virginia to Ralph Green and his Heirs forever. This Ralph Green had two Sons Ralph & Robert; Ralph the Eldest had one Son Thomas; Robert the Second had one Son, Ralph, who dyed in the life Time of his Father and two Daughters Eliz'a and Mary.
Ralph Green the Patentee in his life time made a Deed in these Words "Bee it known unto all Men by these Presents, " That I Ralph Green Gent. of the County of Glouc'r with Con- "sent of my Wife Elizabeth Do hereby freely give dispose and "alienate from me, my Heirs, Ex'tors adm'ors or Assigns unto " Robert Green my Son the Neck of Land whereon he now " liveth com'only called by the Name of my New Quarter con- "sisting of about 1150 Acres to him the said Robert Green his " Heirs Ex'tors Adm'ors or Assigns And I do further Warr't "and affirm this my Deed of Gift to be of as much Force and "authentick as the Law can make it or as any Deed or Deeds "of Gift are usually made, it being always provided that the "said Robert shall not without Consent of his aforesaid Father " solely nor to his own proper Use enjoy Possession of the said "Land till after his Father's Death In Witness whereof I have "hereunto set my Hand & Seal this 8th day of Feb'ry 1678 " in Presence of us Ralph Green Test James Dunbar Leonard " Chamberlayne.
In the Year 1689 after the Death of the said Ralph Green this Deed was proved by one of the Witnesses in a Court of Record and according to the Custom in that Country.
But Ralph Green the Patentee after the Date of this Deed made his last Will and Testament in Writing w'ch bears Date - the 5th day of March in the Year 1686 And thereby did devise the same Lands in these Words, " Item I give to my Son Robert Green, my Land, he now lives on during his Life and after his Mortality, then to his Son Ralph Green and his Heirs forever, And in Case of their Mortality Then to my Son, Ralph Green and his Heirs for Ever.
Robert Green the 2d Son as seems by. this Will "was
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VIRGINIA COLONIAL DECISIONS
in Pos'sion of the Land in his Father's Life time, and died possessed. After whose Death, his Dau'rs & Coheirs Mary & Eliz'a ent'red.
Ralph Green the Eldest Son in the Year 1693 brought his Action of Ejectment against the said Mary and Eliz'a who pleaded in Barr "That Ralph Green their Grandfather long " before the Time when &c. was thereof lawfully Seized in his " Demesne as of Fee and being so Seized he the said Ralph for " the natural Affection w'ch he bore to his Son Robert & to " advance him [13] in a Marriage then intended & afterwards " Solemnized betwixt the said Robert & one Mary Pricket did " freely alienate and give the Land wherein &c. to his said Son " Robert & his Heirs forever by Deed under his Hand & Seal "dated the 8th of Feb'ry 1678 - That the said Robert " entred and was thereof Seized & dyed so seized leaving the "said Mary and Elizabeth his Dau'rs & Coheirs - After whose " Death the said Mary & Eliz'a entred peaceably &c. Without " that &c. - The Plt. replyed "That the said Ralph " Green was a Layman and not lettered and that the " Deed was never read to him, but was declared to him "as a Deed to take Effect only in Case he should dye " without making any Will, and so the said Deed or Writing " was not the Deed of the said Ralph-And Thereupon " Issue was joyned and the Jury found for the Defts. That " it was the Deed of the said Ralph Green.
About the Time of this Tryal, Sev'al Depositions were taken in P'petuam rei memoriam, relating to this Deed, and it was proved by one Witness Mrs. Vicaris That Ralph Green came to the House of Mrs. Vicaris Mother to the said Mary Pricket and called for the said Mary and said to her when are my Son and You to be married, I have given him a firm Deed of Gift for the Land he lives on - Then Mrs. Vicaris asked him If he had acknowledged the Deed to him in Court. He answered No but that he would do it at any time; And she asked him this because " Mr. Pritchet in his life time had refused his Consent to the Match unless Mr. Green would Settle some Land upon his Son - And after the Marriage Mr. Green took the said Mary (she then being upon this Land) and said Here is a House & Land for thee, thou shalt never be turned. off, for I have given this Seat to my Son Robert & his Heirs for Ever.
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Leonard Chamberlayne one of the Witnesses to the Deed Swore That he was by when there was some discourse between Mr. Green and his Wife concerning this Land and She desired him to make a Deed of Gift to his Son Robert of it w'ch he then refused being in Drink, but the next Morning Mrs. Green told him She had brought the Old Man (her husband) into a good humour, And sometime after Mr. Dunbar wrote this Deed and Mr. Green after it was read, Signed, Sealed & delivered it as his Act and Deed and gave it to his Wife to Keep for his Son Robert.
But another P'son swore That Mr. Green Some time in the Year 1685 offered to Sell him Part of his Land Upon which the Dep't told him he thought he had no Right to the Land since he had given it by Deed to his son Robert. He made Answer, That Deed signifyed Nothing, for he had never acknowledged it in Court And besides it was such a Deed that could not take Effect unless he dyed without a Will, but he had power to give it to whom [14] he pleased by Will - The Dep't replyed there was no such Condition in the Deed for he had seen it, and it was an absolute Deed of Gift - Mr. Green then bid this Dep't go to his Son Robert and fetch the Deed which he did and when it was read he said he never intended any such Deed and seemed in a great Passion with his Son, Upon w'ch his Son told him he knew nothing of it, the thing being transacted without his knowledge
Thomas Green the Son of Ralph the Eldest Son brought Suit about 14 Years agoe
Q. 1. Whether this Deed he sufficient to pass those Lands & how it shall operate, Or Whether by the Proviso, Robert's Estate doth not comence in futuro And if so Whether in that respect the Deed be void?
I conceive that this Deed may well operate as a Cov't to stand Seized to the Use of the Father for life, and after his decease to the Use of Robert his Son and his Heirs. And since it can have no effectual Operation any other Way than by way of Use, The Judges (where there is a good Consideration as here of a Younger Son) have strained to give the Deed an useful Opera- tion and not to make void as a Comon Law Conveyance for want of a requisite Execution &c.
Q. 2. What Estate Robert had by the Will of his Father?
I think the Use (as is above observed) may be to the Father
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VIRGINIA COLONIAL DECISIONS
for Life, After to the Use of the Son in Fee or to the Son in Fee, cloathed with a Trust for the Father for Life, in point of Benefit and Enjoym't in case he required it
Q. 3 Whether Thomas Green the Grandson and Heir of the first Ralph be barred by the long Pos'sion of those who hold the Land, And if not, What Ac'con he hath to recover?
His Title is no better than his Fathers was and by the Young'r Son's death in Pos'sion and the descent cast and the Con- tinuance of Pos'sion ever Since in that right The Grandson is barred to bring any possessory Action, Ejectment or other & even any reall one (as I apprehend)
Jo: Chesshyre 2d Feb'r 17212
Mr. Reeve to the 1st Que.
I am of Opinion That the Deed will be sufficient to pass the lands from Ralph Green the Patentee to his Son Robert in Fee And that it will operate by way of Covenant to stand Seized. The Proviso that Robert should not have the Pos'sion to his own use during his Father's life without his Consent is a very Good one [15] but will not in my Opinion vitiate the Deed so as to make it void And it appears by the State of this Case that he had his Father's Consent & enjoyed the Estate during his Father's life.
To the 2d Que.
If Robert's Estate were to depend upon Construction of his Father's Will 1 conceive he would take only an Estate for life but the Remainder limited to his Son Ralph I take by Construc- tion of Law to be but an Estate Tail, the Estate being devised over for want of his Heirs to his Uncle Ralph who would be his Heir if he had no Children of his own.
To the 3d Que.
I think Thomas hath no Title to this Estate, but if he had, in Case no Entry hath been made within twenty Years he will be barred of his Ejectment by the Statute of Limitations, And I know of no other Action he could have unless it were a Writ of Right.
Tho. Reeve Feb'ry 1727
[Note by W. G.] (These opinions are published in North Carol. Law Repos. 309 314.)
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BARRADALL'S REPORTS
MR. PIGOT OF THE MIDDLE TEMPLE HIS OPINION
23 November Bence Dowsing & Martha his Wife having
1693 Surrend'red All their Messuages & Lands held of three Mannors in the County of Suffolk to the Use of Samuel Collet & His Heirs under Condition if they paid Collet 862 1b. 10. at the several daies of payment therein mention'd then the same to be void otherwise in full force, and the money not being paid Collet was admitted to him & his Heirs.
23 August At a Court then held Collet surrendered the 1694 premise into the hands of the Lord to the Use of himself & Hannah his Wife & their Heirs & Assigns for ever.
Collet & his Wife then surrenderd the Premises
13 January 1703 to Henry Hammond & Catherine his Wife for their lives & the life of the longest liver of them Remainder to the Issue Male of Henry & Catherine & for want of Issue Male Remainder to their Issue Female Re- mainder to the right Heirs of Henry forever. Hammond & his Wife have Issue a Son.
30 7ber 1714 Hammond & his Wife Surrenderd the premises to Anne Rivet for securing the Paym't of 315£ at the times therein mentioned.
April 5th 1715 A Recovery was suffered of the said Copy hold premises by Hammond & his Wife to the Use [16] of Hammond & his Wife & their Heirs.
18 May 1716 Hammond & his Wife were admited accordingly. 1 July 1716 Hammond & his Wife surrendered the premises to Thos. Possford & his Heirs for securing the paym't of 630£ at the days & times therein mentioned.
Dowsing the Heir at Law of the first Mortgagor comes & claims the Equity of Redemption & says his Father never Released his Equity of Redemption in his Lifetime which is believed to be true & Possford the last Mortgagee is willing to take in Dowsings Title to the Equity of Redemption in order to secure himself.
Q. If notwithstanding the length of Time since the first Mortgage, Dowsing has not a right to redeem the same upon the paym. of Principal & Interest Exclusive of Mrs. Rivets Mort- gage?
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VIRGINIA COLONIAL DECISIONS
1. There is not any fix'd time in Equity that forecloses a Mortgagor & the statutes of Limitations do not extend to Mort- gages because a Mortgage is in Natural reason only a Pledge or Security for the Money and the Conveyance does not convey any absolute right of property but subject to a Condition of Redemption. The Court of Chancery has often threatened after twenty years possession not to admit a Redemption, but in the Case of Pye & Gorges they admitted a Redemption after 50 years So that it is the equitable Circumstance that rules every Case in Equity: As if Dowsing was an Infant when the Title fell to him or the like.
Q. Whether it would be adviseable for Possford to [sic] of Mrs. Rivet's Mortgage and if he should whether he can any way or how get possession of the premises till Hammond is paid of or what he must do to secure himself Hammond being insolvent?
I am of Opinion that Rivet's Mortgage is only good during the Life of Hammond for by the Surrender 13th of January 1703 the Lands were surrender'd to Hammond & his Wife for their lives remainder to their first Son in Tail, Now tho' there were no Trustees to preserve Contingent Remainders Yet there was a Freehold in the Lord that preserves the Estate for the first Son of Hammond & his Wife & when Hammond & his Wife die their Son will have the Estate: therefore as the Case is circumstanced I am of the Opinion the safest way for Posford is to come to an Agreement with Dowsing & then by consent let Dowsing bring a Bill against Hammond his Wife & Children & Rivet & Posford.
[17] But there is no getting Possession because they all claim under Collet who had the legal Estate well vested in him & neither Dowsing or any claiming under him have any Relief but in Equity. Rivet & Posford both claim under Hammond's Title, and Rivet's Security being prior She will prevail against Posford so that there is no way to make Posford secure but a Decree since he is subject to the Demand of Hammond's Son, Rivet & Dowsing.
Nath'l Pigot Middle Temple 5 March 1722
Doctor Paul's opinion on a Case sent from Virginia in 1724. [Different hand- writing and ink from the general MS.]
1st. A. has unadvisedly marry'd B. his late Wife's Sister tho'
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BARRADALL'S REPORTS
he has Children by the first and is threaten'd with Prosecution in the Eclesiastical Court. He wishes to be informed how far, & by whom, most properly, he may be proceeded against & tem- porally affected thereby. Or, whether a Prohibition will not lye to remove it to common Law?
The Marriage solemnized between A. & his Wife's Sister may upon due Proof be annul'd by the Eclesiastical Authority, and the Persons separated by the definitive Sentence & Judgment of the A. Bishop or proper Ordinary of Place where the Parties live. A Prosecution may be commenced by any Person, that can give Security to pay Costs, in Case he fails of making a legal Proof. A Prohibition will not be granted to remove it to com'on Law.
2d. Whether by the present Laws of England, corroborated by noted Precedents or judged Cases 1 of which it is desired the last may be instanc'd 1 such Marriage can be disannul'd or the Parties separated, & how far their Issue may be affected thereby. And whether there be any probable Method of Defence, or Way to prevent Molestation?
By the present Laws of Great Britain a Man can't marry with his Wife's Sister for the same is contrary to the Statute of y'e 24, H. y'e 8th Chap: 22. By that, it is particularly enacted, that none shall marry within y'e. Degrees prohibited, of which Wife's Sister is one menc'oned in the Statute. And all Separations from such Marriages shall be good & valid; And after such Sentence as the Law directs, the Children born in such Marriage will be illegitimate. I know no Defence that can be made against a legal Evidence of the Nearness of Kin & a Marriage solemnized thereupon.
Mr. Edisbury was separated in the A. Bp. of Cants Court from his Wife, she being Sister to his Wife, & all his Children by her we [sic] pronounced illegitimate.
3dly. Whether if no Prosecution should ensue, during the Life of the Party's, ye Children of the first Wife may not after the Father's Death, Barr any Claim of those by the Second to their Share in [18] their Father's Estate by alledging the ille- gality of the second Marriage. And whether the Widow will be quietly allowed her Dower or Widow's Right?
If there shall be no Prosecution & Conviction during the Life of the two Parties mentioned in this Case, then y'e Children by the second Wife will obtain all legal Benefits & the Wife will have her Dower. For Marriages, within the Degrees afore-
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menc'oned are in Law deem'd voidable only, not actually void. And Proceedings, after the Death of one of the two partie's married as aforesaid can't be commenc'd in Order to annul the Marriage, and make the Children illegitimate.
J. Paul Drs. Coms Sep'r 4 1724
[Note by W. G.] (This opinion is published in North Carol. Law Repos. 424-6.)
DR. STRAHAN'S OPINION ON A CASE SENT FROM CAROLINA IN 1724
1st. A. has an Inclination to propose Marriage to B. his late Wife's Sister, by whom he has Children but finding her within y'e prohibited Degrees of Arch-Bp. Parker's Tables, he wants to be informed, how far Disobedience to them can temporally affect him; And particularly, Whether by the present Laws of England corroborated by noted Precedents & judg'd Cases, the Marriage when consummated, can be disannul'd & the Party's separated and how far their Issue may be affected thereby?
I am of Opinion that such Marriage may be disannul'd after Consummation & the Partie's separated; And the said Marriage being null and void from the Beginning, it is a necessary Conse- quence that the Issue thereof, must be look'd upon as Illegit- imate.
2dly. What Prosecutions at Law he may be in Danger of, and the utmost Penalty's he may suffer.
He is liable to be prosecuted in y'e Spiritual Court for trans- gressing the Laws and Cannons of the Church, by contracting an incestuous and unlawful Marriage, & may be enjoyn'd to do publick Penance for y'e Same.
3dly. Whether after he has once suffer'd he may for the future be molested by Law, upon Account of such Marriage?
If he continues to cohabit with the Woman he will be still liable to farther Prosecution; And if he does not desist from such Cohabitation, after due Monition from his Ordinary, he will incur y'e Censure of Excomunication, with all it's Effects both spiritual & temporal.
Will. Strahan Drs. Coms Aug'st 18th 1724
[Note by W. G.] (This opinion is published in North Carol. Law Repos. 426-9.)
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BARRADALL'S REPORTS
[19] CASE MR. MEAD'S OPINION ON A CASE SENT FROM VIRGINIA IN 1722
James Williamson Merchant being resident in Virignia, by Deeds of Lease and Release, dated respectively the 19th and 20th Days of November 1655, mortgaged an Estate which he then had in England, in Fee to Thomas Cox for 3201b Sterling, but whether the Equity of Redemption has heen released or foreclosed by a Decree is not known. Mr. W'm Ball Grandson & Heir of the Mortgagor apprehends that the Principal and Inter- est due upon the Mortgage is fully or very near paid & satisfied by the Perception [sic] of Profits & would therefore redeem the Mortgaged Premises.
Ist Q'r. Supposing the Equity of Redemption not to be released or foreclosed, will a Court of Equity decree a Redemption after such a Length of Time?
I apprehend that after such a length of Time a Court of Equity will not decree a Redemption, unless the Heir at Law of the Mortgager can shew, that by Reason of Infancy's in the Heir at Law, a Redemption hath been neglected: and I take it that y'e Court will even in such Case, not do it, unless it can be made appear that at the Death of the Mortgager, the Heir was an Infant or under some Disability by being abroad, or Insanity or some Disability of that Nature: and even this will depend upon the Time w'ch the Mortgager lived after the Mortgage; for if he lived above twenty Years after the Mortgage ent'red, I apprehend that a Court of Equity would not now decree a Re- demption.
2d Q'r. If the length of Time should not be thought sufficient of itself to extinguish the Equity of Redemption, will not both the length of Time & a Decree of Foreclosure, (in Case such Decree has been. obtain'd) absolutely preclude Mr. Ball from any Right to redeem or will Mr. Ball be entitled to a Redemp- tion, notwithstanding the Length of Time and a Decree of Fore- closure together?
If any Decree of Foreclosure hath been obtain'd Mr. Ball as Heir at Law to y'e Morgager will be thereby absolutely pre- cluded from any Right of Redemption.
Sam: Mead 26th Dec'r 1722
[Note by W. G.] (This opinion is published in North Car. Law Repos. 423-4.)
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VIRGINIA COLONIAL DECISIONS
[20] A Copy of part of a Letter wrote by Col'o. Randolph on Receipt of our Letter and Account Current dated the 16th December 1687 where the Ball. due to us was 973-13-5 And before we had charged him with any Interest but at the foot of this Account was wrote Interest till repaid. And from that Day we charged him Interest & for 10 years or more he never took any Notice of it.
Virginia, April 14th 1688.
I rec'd your Acc'ts of a very bad Market last year, and find the Ball. to be much higher than I expected but however must submit to Providence I am also sensible of the £100 drawn P. Cap't. Wynn for my Barbados Goods which I find not brought to Account so that the Ball. must be so much more upon all which Considerations and that y'e Acc't might not run higher (the Interest thereof being considerable) I have inclosed an Invoice of Goods for next Year as small as I can make it if I intend to do any Thing in Trade.
Q'r. Whether the Ex'rs or Adm'rs of Col'o. Randolph shall not be obliged to pay the Interest charged in the Account annually & sent him to y'e Time he dy'd so far as his Estate will reach?
Upon a running Account no Interest will be allowed but as this Ball. was considerable as notice was taken of that & Inter- est charged by the Creditor and the Party himself the Debtor does not object to it but mentions it in his Letter as a Matter which he submits to. And it being continued to be charged in all the Acc'ts to his Death & no Objection made by him to it I think a Court of Equity will make his Effects in the Hands of an Ex'r or Adm. liable to it.
W'm Thomson 16th Feb'ry 1717
[Note by W. G.] (See ante 6-9 et infra.)
At the Council Chamber Whitehall the 20th day of July 1726.
[Notes by W. G.] (1725? See post 22.) (See ante 6-9 et supra.)
Present
Their Excellencys the Lords Justices
Upon reading this Day at the Board a Report from the Right Honourable the Lords of the Comittee for hearing, Appeals from the Plantations Dated the 8th of this Instant in the Words following (viz)
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BARRADALL'S REPORTS
"His Majesty having been pleased by his Order in Council of "the 12th of May 1724 to referr unto his Comittee the Peticon "of Appeal of Sarah Perry Widow & Extrix of Richard Perry "Merchant Deced & of s'd Sarah Perry Micajah Perry & Philip "Perry Merchants of London Ex'rs of Micajah Perry Merchant "Deced, setting forth intall that the said Micajah & Richard "Perry Deced, had very considerable Dealings with Col'o Wm. "Randolph of Virginia Deced, and that several [21] Accounts "of such Dealings had been transmitted by the said· Micajah & "Richard Perry's to the said Col'o William Randolph deced "on which considerable Ballances were due to the said Perry's; "Toward Discharge of which Ballances the said Col'o William "Randolph in his Life Time & Mary Randolph Widow William " & Thomas Randolph the s'd Col'o Randolph's Ex'tors after "his Decease made several Consignments. But notwithstanding "such Consignm'ts there was a Ball. due in 1717 to the said "Micajah & Richard Perry from Col'o Randolph's Estate of "24651b 1s 8d which said Col'o Randolph's Ex'tors refusing to "pay the Petitioners brought their Act'n upon the Case in Vir- "ginia as Ex'tors of the said Micajah & Richard Perry against "the said Mary, William & Thomas Randolph Ex'tors of the "said Col'o William Randolph for recovering of the said 24651b "1s 8d which Account coming on to be try'd before the General "Court of that Colony on the 24th of October 1723 Judgm't was "given therein against the Petitioners from which Judgm't the "Pet'rs appealed.
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