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 25
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The Hardship upon the Defts. will be no more than this that they must sue Brooking for their Mony again And whether it is not more reasonable that they should be put to that Trouble than that the Plt. should lose his Slaves must be submitted Had they been fair Purchasors without Notice of the Judgment something might be sayed in their Excuse but they knew at the Time they were buying the Slaves of an Infant they were privy & consenting to the Juggle & Contrivance of the Pochein Ami & so were Parties to the Fraud I hope no Countenance will be given to Fraud in this Court Nor so ill a Precedent established that a Prochein Ami may sell the Slaves of an Infant
By the Laws of this Colony every Guardian must give Security before he can act as such and for omitting to take Security the
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Justices are answerable And so the Infants Right & Interest is sufficiently protected But a Prochein [243] Ami gives no Security. And it he proves insolvent the Infant is ruined
For the Deft. it was sayed that by the Judgment the Defend't had an Election to pay the Money or deliver the Slaves And that by Paiment of the Money the Property of the Slaves was divested out of the Plt. It was granted that that nothing done to the Infants Prejudice should bind him but that here was no Injury to him the Value of the Slaves was paid to a Person having sufficient Authority to receive For if the Prochein Amy could not receive the Mony There was no other Person to whom it could be paid the Infant having no Guardian. If the Sherif had levied the Mony on Exon he must have paid it to the Pro- chein Ami And where is the Difference That the Infant was in no worse Case than if a Guardian had acted in this Manner which it is allowed he might do The Infant might have his Action ag't the Proch. Ami That here was really nothing of Fraud in the Case nor any Occasion for underhand Dealing For Emery might lawfully sell the Slaves after the Judg't If Exon had been sued out & the Sherif could not get the Slaves he must have levied the Money Where then was the Fraud or Injury to the Infant. A great deal was sayed of the Power of Guardians. And it was industriously endeavoured to confound the Offices of a Guardian & Prochein Ami & make them the same It was also much insisted on that great Service was done to the Infant by bringing the Suit for if it had been delaied a little longer till the explanatory Act was made the Infant would not have re- covered at all
April 1737. Judgment for the Deft.
Note the Court seemed not to take the Difference between a Guardian & a Prochein Ami Nor to consider the gen'l Incon- venience of allowing such Power to a Prochein Ami And the Advantage to the Infant by having Suit brought seemed to weigh much
OCTOBER COURT MDCCXXXVII.
FARROW ag't FARROW. Carc.
Abraham Farrow Father of the Plt. & Deft. being seised of divers Lands by his Will devises them among his Children & afterwards purchases Lands of one Barton which both before &
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after he bought it he declared he intended for his Son Abraham (the Plt.) whom he seated upon it And the Plt. has made Im- provements The Father in his last Sickness procures a Promise from his eldest Son (the Deft.) [244] to convey this Land to the Plt. And this Bill is brought to compel a Conveiance accordingly
The Promise is confessed by the Deft. but sworn by him to be made upon an Apprehension that his Father had no Will he having declared some few Days before that he had none Only two Papers containing Pieces of Wills Neither of which he liked & would alter them or make a new Will One of these Papers is since established as the Will By which Deft. has a very slender Provision only 750 A. of poor Land & the Reversion of 200 more & not a Penny of the personal Estate appraised to 500£. whereas Plt. has Lands to 3 Times the Value exclusive of Bartons besides Slaves & other Estate So that Deft. is almost disinherited When the Will was in Contest Plt. proposed to Deft. to release his Right to the Mann'r Plantation ab't 200 A. not so valuable as Bartons w'ch is given to Plt. by the Will if Deft. would convey Bartons Land to him This Deft. agreed to But after the Will was established Plt. claimed both & refused to stand to his Agreement For which Reason Deft. not believing it was his Father's Intention that Plt. should have Bartons Land & the Mann'r Plantation too brought an Ejectm't in the County Court for Bartons Land & had Judg't to recover
The Equity set up by the Plt. in Order to have a Conveiance of the Land in Question is founded 1. Upon the Fathers de- claring both before & after the Purchase that he designed the Land for the Plt. 2. Upon the Defts. Promise to his Father when sick to convey it I shall consider both these Points ab- stracted from the Circumstances appearing in this Case And see what Effect or Operation they have at Law Then I will enquire how far a Court of Equity will interpose in Cases of this Nature And afterwards consider this Case in all its Circumstances After which I hope it will be no difficult Matter to convince the Court that the Plt. ought not to be relieved
The Fathers Declaration if it can operate at all at Law so as to convey any Estate to the Son must be as a Covenant to stand seised And so it would had it been committed to Writing but being only by Parol it cannot operate as a Cov't to stand seised. which being a Conveiance to Use cannot be good unless put in Writing for no Use can be raised by Parol So is Callard &
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Callard 2. Ro. A. 788. Mo. 687. " The Father being upon the " Land says to his Son I do here reserving an Estate for my "own & my Wife's Life give unto thee & thy Heirs forever " these my Lands &c." In this Case it was adjudged that no Use could arise to the Son being by Parol And the like Point is adjudged in 1. Sid. 26. Hore & Dix & [245] 82. Foster & Foster - But this ex abundanti The Laws of this Country are express that no Estate in Land pass but by Deed So that this Decl. can avail nothing at Law.
Then as to the Defts. Promise to his Father there being no Cons. to induce that Promise it is void in Law. There is no Rule of Law more universally known than Ex nudo pacto non oritur actio I need say no more since the very bringing of this Suit is a Confession that the Plt. is without Remedy at Law
I shall proceed then to consider how far a Court of Equity will relieve in Cases of this Nature And 1. As to the Fathers Decl. This it is sayed sufficiently shews his Intention that the Plt. should have the Land which to be sure cannot be denied But then that Intention I humbly conceive is not suffic't alone for a Court of Equity to make a Decree upon A Mans Intention to do an Act without the Concurrence of those Forms &c. Cir- cumstances which the Law requires is of no Signification at all As may be illustrated by various Instances If a Man makes a Will & declares an Intention to revoke it but does not actually revoke it This Intention will not amount to a Revocation So if a Man devises his Land by a Nuncupative Will or in England - makes a Will in Writing And there is but one Circumstance or Formality required by the Statute of Frauds wanting Or if a Deed be signed & sealed but not delivered In all these Cases the Intention is apparent but yet a Court of Equity will not relieve From these Instances & many others that might be named it is evident that a Mans Intention alone is not a suffic't Ground or Foundation for a Court of Equity to make a Decree In the Case of Callard & Callard cited supra the Fathers Intention was plain to give the Land to his Son Yet that Intention not being manifested according to the Forms of Law nothing passed Nor do we read that the Son attempted to support this Gift in a Court of Equity Indeed I am yet to learn if there be any Case where a Court of Equity has decreed an Heir to convey meerly upon the Intention of his Ancestor to give the Land to another The Argument is as strong & the Case equally equitable where the
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Ancestor devises Land by Will without Writing that the Heir should be compelled to convey to the Devisee The Intention is sufficiently evident but there never was an Instance of that kind I can venture to affirm
The Case of Clavering a Clavering 2 Vern. 473. is a very strong one to prove that a Mans Intention alone without the Concur- rence of those Forms & Ceremonies which the Law for very wise Ends has appointed to the Consummation of every [246] Act is not a suffic't Reason for a Court of Equity to interpose & interrupt the Course of the Law. The Case was thus " Sir Ja's " Clavering made a Settlem't in 1684. under which the Deft. " claimed In 1690. he made another Settlement without any " Regard to that of 1684. under which the Plt. claimed There " was no Power of Revocation in the Deed of 1684. but it was " in Proof that the Deed was not published or delivered out by "Sir James & was found among his wast Papers at his Death " That the Deed of 1690. was often mentioned by him as the " Settlement of that Estate & so indorsed with his own Hands & " he told the Ten'ts the Plt. was to be their Landlord." But notwithstanding all these Circumstances to favour the Settlem't of 1690. & tho' Sir James's Intention was very plain & evident Yet no Relief could be had ag't the Settlement of 1684. In which there being no Power of Sir Ja's could not resume the Estate whatever his Intention or Inclination might be
There is indeed a very great Difference between Conveiances made to a Purchasor for a valuable Cons. & voluntary Con- veiances without any Cons. at all In the first if there be any Defect in Point of Form or Ceremony a Court of Equity will always interpose & compel a perfect Conveiance according to the Agreem't of the Parties but in the latter Equity scarce ever intermeddles [Except in some special Instances where Cred'rs or younger Children are concerned 2 Vent. 365. 1 Vern. 37, 38. 40.] (a)
(a) See 2 Sal. 416.
They are left to their Operation at Law and valeant quantum valere possunt is the Rule for Equity will not assist them And this Difference is well founded both in Reason & Justice In the Case of a Purchase there is a meritorious Act on the Part of the Purchasor viz. the Paiment of the Cons. And natural . Justice requires that he should have a good Title made to him & not lose his Purchase for Want of a meer Ceremony But in the
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BARRADALL'S REPORTS
Case of a voluntary Gift there is no Merit in the Donee. It is from the meer Favour of the Donor that he has any Thing And therefore he must take the Gift as it is for better or worse Equity will not stretch to assist him Especially against an Heir whose Right & Title are favoured both in Law & Equity
Had the Ancestor then in this Case gone much further than he has done Had there been a Deed actually executed but that was imperfect for Want of some Circumstance As if there had been a Feoffment without Livery Even in such Case the Con- veiance being voluntary a Court of Equity I conceive would not compel the Heir to perfect it but would leave the same to its Operation at Law Much less then ought this parol Decl. to be assisted ag't the Heir 2 Ch. Ca. 133, 134. 1 Vern. 37, 38.
I come now to speak to the Defts. Promise made to his Father [247] to convey this Land to the Plt. his Brother without any Regard to the Circumstances attending it This Promise as I have already observed is void in Law being made without any Cons. And I conceive it is void in Equity too At least I can safely say I never yet read or heard of an Instance where a Court of Equity compelled a Performance of a Promise of this sort It is natural Justice that there should be Quid pro quo And where there is not Promises of this kind will fall within the Rule & Reason of voluntary Conveiances. They must operate as they can at Law for they are never assisted in Equity It is indeed a Rule that Equity will not relieve ag't a Maxim of the Comon Law And it is a Maxim Ex nudo pacto non oritur actio
From what has been sayed I hope it is pretty evident that the Pretences set up by the Plt. to intitle him to a Conveiance of the Land in Controversy from the Deft. have no solid or equitable Foundation taking them in the most favourable Light for the Plt. But when the Circumstances attending this Case are con- sidered which I must now beg Leave to speak to I believe it will appear that there is as little Honesty as Equity on the Plts. Part And extreme Hardships on the Defts. if he shall be compelled to convey this Land
It has been opened that at the Time the Deft. made the Promise to his Father to convey the Land to the Plt. he appre- hended there was no Will His Father told him so In the Event it falls out there is a Will by which the Plt. who is a younger Child has more than three times the Estate given him than is given to the Deft. the Heir at Law Is there any Reason or Justice then
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that any Thing more should be done for this younger Child & the Heir be quite disinherited tho' it does not appear he ever offended his Father or gave him any Cause to disinherit him. Was this younger Child unprovided for there might be some Appearance of Equity. But when he is so amply provided for & will at all Events have a better Estate than the Heir Surely there can be no Reason that a Court of Equity should lend any Assistance to disinherit an Heir under such hard Circumstances & against a constant & established Maxim that the Heir is to be favoured. See 2. Sal. 416.
But after all it is somewhat surprising that a Man should come into Equity to compel the Performance of a Promise altogether voluntary And at the same Time refuse to perform an Agreem't on his Part that is really more than voluntary And such an Agreem't as I conceive a Court of Equity ought to compel the Performance of The Deft. in his Answer swears that when the Will was in Contest. the Plt. proposed to him to rel. his Right to the Mann'r Plantation if he would convey Barton's Land to the [248] Plt. And this was agreed to by the Deft. tho' the Mann'r Plantation is not near so valuable as Bartons This Agreem't is likewise proved by a Witness who heard the Plt. acknowledge it But see the Justice & Honesty of the Plt. as soon as the Will is established he flys from this Agreem't refuses to perform it And now he will have Bartons Land & the Mann'r Plantation too It is a Maxim He that will have Equity must do Equity And surely it is equally reasonable & equitable that the Plt. should perform his Agreem't as that the Deft. should perform his I beg Leave to observe the Justice of the Deft. in this Agreem't He had all the Reason in the World to believe from what his Father told him that the Will would not be estab- lished & then the Mann'r Plantation had descended to him Yet he is content upon the Plts. releasing this slender Prospect of a Right to comply with what he took to be his Fathers Intention for he swears he does not believe his Father intended that the Plt. should have Bartons Land & the Mann'r Plantation too Nor is it reasonable to suppose he should intend to leave his Heir who had never disobliged him without a House to put his Head in
It may be objected perhaps that the Plt. when he made this Agreem't was doubtful of his Right to the Mann'r Plant'n That if he had been sure the Will would be established he would not have made it Such an Argument may be a Proof of the
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Plts. Cunning but not of his Honesty But to obviate the Force of this Obj. if there is any in it that an Agreem't founded upon a Mistake that is where a Man thought he had not a Right when he really had is binding in Equity. " A Man seised of Freehold " Lands in tail with Rem'r to his elder Brother & of Copyhold "Lands in Fee devises the Freehold Lands to his younger " Brother & the Copyhold to his elder Brother And the Devisees " agree that the Lands should be enjoied by them accordingly " And this Agreem't was established in Equity Tho' it appeared " that the elder Brother thought the Intail of the Freehold " Lands was docked And the younger Brother to draw on the " Agreem't made him believe so when in Truth it was not" 1 Ch. Ca. 84. Frank a Frank
This Case I think is a full Answ'r to any Obj. that may be made that the Plt. when he made this Agreem't did not know his Right But the Obj. is really ridiculous in this Case & must turn upon the Plt. Since we may likewise object that the Deft. did not know he should lose Mann'r Plantation when he promised to convey Bartons [249] to the Plt. There remains not then in my humble Apprehension the least Pretence why the Plts. Agreem't should not be enforced as well as the Defts. Promise made under the Circumstances appearing in this Case If the court should be of Opinion that the Plt. ought to be relieved at all
But after putting the Deft. to all the Trouble & Charge he has done and refusing to perform an Agreem't proposed by himself for settling this Difference between two Brothers And an Agreement that in Equity as I conceive he is bound & com- pellable to perform I hope the Plt. is intitled to no extraordi- nary Favour But as it is a Case without Preced't that ever an Heir has been compelled to perfect a defective voluntary Con- veiance or to perform a Promise made without any Consideration & upon a Misapprehension too And the Case in all its Circum- stances is extreme hard upon the Deft. I hope the Plt. will have no Relief at all but that his Bill will be dismissed
And upon Hearing in October 1737. the Bill was dismissed by the Opinion of the whole Court
HAWKINS a BONGHAM &C.
The Question here was the same as in Hawkins & Thornton ante 227 - And Judgment was again given for the Plt. by the
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Opin. of Lee, Tayloe, Randolph, Custis, Grymes, Carter, Digges & Byrd - Robinson con. - So Byrd changed his Opinion
But the Defts. appealed
APRIL COURT MDCCXXXIX
EWELL Heir of Ewell ag't MILLER & HIS WIFE Adm'rx of Myars
The Plt. declares in Cov't upon a Deed from the Intestate to the Plts. Father dated in 1708. whereby in Cons. of 150 £. he sells to him certain Lands & covenants to warrant defend save harmless [250] & keep indemnified the said Land to the Grantee ag't all & every pson & persons whatsoever that should thereafter make any Claim or pretend any Title And avers that the Estate [sic] or the Defts. have not defended saved harmless &c. (in the very Words of the Cov't) And that so the Intestate or the Defts. have not kept the Cov't of the Intestate but broke the same
The Defts. plead that the Plt. & his Fa'r from the making of the Deed to the bringing of this Suit have peaceably enjoyed without the Molestation Interruption or Hindrance of any pson w'tsoever
The Plt. replies that the Intestate & his Wife were seised in Right of the Wife & made the Deed af'd which they acknowledged but there is no Record of her privy Examination And that so the Intestate or the Defts. have not defended saved harmless & kept indemnified the said land ag't the Claim & Title of the Wife And to this Repl. the Deft. demurs
I think I might with Reason in this Case find fault with the Declaration for that the Assignment of the Breach is too general And also with the Repl. as it is no Answer at all to the Defts. Plea Inconsistent upon the Face of it & a Departure from the Decl. as I think But I will wave all cavil & Exception to the Pleading And confine myself to speak to the Merits of the Cause alone by endeavouring to shew that taking this Case as it appears upon the Pleadings there is no Breach shewn of the Cov't upon which the Plt. declares
The Case upon the Pleadings is in short this A Man & his Wife seised in Right of the Wife sell & convey Land by Deed which they ackn. but there is no Record of the Wifes Exam. There is a Cov't in the Deed to warrant defend save harmless & . keep indemnified the Land ag't the Claim & Title of all psons.
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This Deed has been made almost 30 Years And the Plt. & his Father have peaceably enjoied without the Claim or Disturbance of the Wife or any other ever since And the Question I take it properly is
Whether the Plt. can maintain an Action on the Cov't to warrant save harmless &c. because the privy Exam. of the Wife is not rec'o for that is all the Breach assigned
The very State of the Question in my humble Opinion shews the Absurdity & ill Ground of the Plts. Action for where is the Sense or Propriety to say we have not warranted saved harmless &c. because the Clerk omitted to rec'o the Wifes Exam An act not in our Power to compel him to And which [251] it was the Business of the Purchasor to look to Especially when it is not pretended that the Plt. has at all suffered by this Omission but it is admitted that the Wife has never disturbed him He & his Father have had quiet Possion these 30 Years Cov'ts are to be considered. 1. According to the Force & Operation of the Words in Law 2. According to the Intention of the Partys Now a Cov't in these Words To warrant &c. have no further Operation in Law than to subject the Covenanter to make good all Damages that the Covenantee sustains by Reason of lawful Evictions Sr. E. Cokes Opinion in 1 Br. 21. is express that in a Cov't to warrant & defend there must be a Title paramount & a lawful Eviction before an Action will lie So that a Title alone with't Eviction will not do And there is this plain Reason for it perhaps the Title may never be exerted The Case of Foster a Wilson in On. 100. proves the same Point as to the Words save harmless & indemnified A Man made a Lease & covenanted to save harmless ag't P. B. In an Action of Cov't the Breach assigned was that P. B. entered & ejected him but not sayed with Title And it became a Question whether the Covenanter was to indemnifie ag't all Entrys of P. B. whether by Right or Wrong And a Difference is there taken & settled that where a Cov't is gen'l ag't all psons there it shall be extended only to .Evictions with lawful Title but where it is special ag't A. B. , there it shall be extended to all Evictions of A. B. either rightful or wrongful Which fully proves there must be some Eviction before an Action will lie
But the Case of Griffith a Harrison 1. Sal. 196. is more express in the Point A Man assigned a Lease & covenanted to keep indemnified ag't all Arrears of Rent There was Rent in Arrear
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but the Plt. had never been sued for it Yet brought an Action on this Cov't And adjudged the Action would not lie For in all Cov'ts to save harmless there must be an actual Damnification before there can be sayed to be a Breach To apply this Case Here they say the Wife not being exam'd her Title is lying out ag't them & they are liable to be evicted which is true But they never have been evicted or disturbed these 30 Years Therefore the Plt. is not damnified What Right then has he to this Action
Another strong Case & which seems the very parrallel of this is Grocock a White Mo. 175. Debt on Bond with Condition to save harmless & defend certain Land ag't J. S. & all others The Deft. pleaded as we have done that the Plt. was never law- fully disturbed The PIt. demurred And adj'd for the Deft. [252] that the Plea was a good Bar Indeed it was not so much as pretended that the Action would lie with't some Disturbance but the Question & Doubt was upon the Word lawfully Whether the Obligor was not obliged to defend ag't unlawful as well as lawful Disturbance Now here we have pleaded the Plt. never was disturbed at all without distinguishing between law- ful & unlawful Disturb'a And so our Case is stronger it being admitted that the Plt. never has been disturbed at all
These Cases I hope fully prove that there must be an Eviction or other Damnification before a Man can have an Action on a Cov't of this kind Indeed if there were no Authoritys in Law The Reason of the Thing in my Opinion speaks plainly enough Shall a Man have an Action before he is injured And when per- haps he never may be What Rule or Measure can there be for a Jury to assess Damages The Chancery indeed by an extraordi- nary Power will sometimes allow of a Bill qui a timet as it is called because the Plt. is apprehensive of Danger but I never yet heard of such an Action at Law. In Chancery it is only to have Security but here Damages must be given for a Thing that may or may not happen & before the Plt. has suffered any Wrong or sustained any Damage
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