1811.

OCTOBER, pass only by livery of seisin, or writing sealed and de

livered. But his declaration was that he released to the Boykin's

use of the County. Considered as a release, it was void; Devisee

there being no relessee; for a County is not a body poli.
Smith and
Others. tic and corporate, able to take a release. It operated,

therefore, only as an agreement or consent, that the land
might be used for a court house and fail; his object
being to keep the Court house there. It could not be his
intention that they should sell it the next minute. Boy.
kin, after getting the Court house removed, comes with
a bad grace to claim our land. The strict right of
the Commonwealth was all he could get by the Act of
Assembly ; and this is one of the cases, above all others, in
which a Court of equity ought not to interfere.

2. The mistake in the case agreed, in the ejectment, is
no ground for equitable jurisdiction. A new action of
ejectment may still be brought, and a new case might be
agreed. The statement heretofore made, would not be
binding upon the parties, in the new ejectment. If there
had been any circumstance to induce a presumption of a

conveyance, the jury, in a Court of law, could have pre-
(a) Tanner'o sumed it.(a) But, on the contrary, there is the strongest
Administra.
sor,Saddler, ground for presuming the erection of the buildings to
2 . & M.
370. have been merely permissive, and that the right of the

County was to cease whenever the Court house should
be removed.

3. This was not a proper case for granting leave to
amend the bill The rule is, that the bill is not to be
amended at the hearing without good cause shown; and
none was suggested. Besides, the motion was not for a
continuance, but for leave to amend, and try the cause
immediately; which could never be tolerated. The
Chancellor could not have intended to receive the amende
ments to the bill as evidence in the cause. The record
in this part of it is loosely worded ; but the meaning
may be, that he received the writing (which was uffered)
as evidence toward supporting the plaintiff's motion for
leave to amend his bill.

1811.

Smith and

Others.

а

ring sealed and de the released to the elease, it was toit

is not a body poli lease. It operated nsent, that the land ed fail; his ohje:

It could not be his
next minute. Bilo
noved, comes with
Che strict right of
1
above all others

, 4
interfere.
in the rjectment

, i
A DCW

get by the day

Wirt, in reply. This is a common case ; a suit in OCTOBER,
equity to enforce an equitable title : there being none
that can be enforced at law. The question is, whether, Boykin's
after such length of time, and the release by Thomas
Smith, in open Court, payment for the land vught not to
be presumed. I do not contend that a deed is to be pre-
sumed. This could not have been the case ; for the
Court of a County could not take a deed : since it is not
a body corporate. Even supposing the consideration of
the bargain, between Arthur Smilh and the County, was
the enhancement of the value of his adjoining lands, the
erection of the public buildings was a compliance with
the consideration. He gained the object he had in view;
and this was sufficient to give the County an equituble
title Mr. Wickham contends, that this enhancement was
to be perpetual. But Smith knew that a Court house
could at any time be removed, and of course submitted
to the risk of such removal. The Court not being a
body corporate, could not maintain ejectment. Of course,
Boykin, their vendee, could not.

As to the amendment to the bill; the Chancellor was
bound to grant leave to amend, on payment of costs. He
plainly received the amendment as evidence n the cause ;
for such are the express words of his decree. This was
truly an original and extraordinary course of proceeding;
and, I admit, was wrong. His meaning was, that allow-
ing it to be evidence, it could not affect the case ; the
door of the Court of equity being shut by the judgment
in ejectment.

action de new case might be ade, would not be jectment. If there a presumption of w, could have pre ere is the strongest f the buildings to t the right of the nurt house should

nd try

granting leave to e bill is not to be aust shown; and ion was not for a

the cause tolerated. The ceive the amendo e. The record ut the meaning .ch was uffered) iff's motion for

Wickham. It is plain from the law,(a) that Boykin's (a) Rou.

Code, vol. 1.
right, if any, is strictly legal. The act of 1748(6) says, p. 86.

6) Edof
that “ the Court may purchase two acres, whereon to 1769, p.175.
erect their public buildings, for the use of their county,
and for no other use whatever." It follows, therefore,
that when a Court house is removed, the land reverts to
the original proprietor. The fee simple is declared to
be in the Court and their successors, so long as it is ap-

1811.

Others.

OCTOBER, plied to the use of the County, and no longer. It is

therefore only a base fee, like an estate to a man and his Boykin's

heirs, while a certain tree shall stand. Devisee

After a cause is set for hearing, the bill cannot be
Smith and

amended, without good cause shown. Otherwise a lis
pendens might be kept up for ever.

The case presents another point. The devisee of Boy-
kin could not sue ; for the devise was void, there being,
at the time, a person holding the legal title, in full adverse
possession. *

Il'irt. The act of 1748 gives a fee simple to the Court and their successors. The words used in the law are intended to vest in the County the exclusive property for iis use.

But when new property is purchased, and paid for with the old, the latter is in fact applied to the use of the County. The Court appointed Commissioners to contract with Boykin. The heirs of Smith stood by and did not interfere. Ought they now to be permi.ted in equity to take from him the property he was to receive in exchange for that which he parted with ? His was only a parol contract, and his right only equitable. We do not claim under the Act of Assembly, but his contract with the County. Could the Court make him a deed, or any contract with him but by parol ?

A devise of an equitable interest is clearly good, so far as to pass such interest to the devisee.t

Monday, March 23d, the following opinion of the
Court was pronounced by Judge Roane.

“ The Court is of opinion, that as the act of 1748, in
relation to the erection of Court houses in the several
Counties of this Commonwealth, was anterior to the ac-
quisition of the lot, now in question, by the Court of
Isle of Wight County, was a general law which all the
County Courts were bound to take notice of, and con-

• Note. See Hyer v. Shobe, 1 Munford, p. 200.
+ See the authorities cited, % Munford, p. 203.

1811.

-, and no longer. It is

estate to a man and I stand. Fing, the bill cannot be shown. Otherwise ah

Bokin's
Devisee

V.
Smith and

a fee simple to the Cour Is used in the law are it ne exclusive property do y is purchased, and put act applied to the use : Ented Commissioners & s of Smith stood by and now to be permited i

a

form to, and made it the duty of such Courts, in relation OCTOBER,
to Court houses thereafter to be erected, to purchase two
acres of land for the purpose aforesaid ; (for the acquir-
ing and holding of which the said Courts respectively,
and their successors, were made competent by the said Others.
act ;) it ought to be presumed, at this distance of time,
that the title to the said lot was duly acquired by the
Court of that County, although a deed may not have been
made therefor, or may have been lost; (in which last
case, an application to a Court of equity, to restore the
said deed is equally proper;) and this the rather, as it
is admitted by the appellees, that their ancestor, the
tenant of the said land at that time, agreed to the erec-
tion of the public buildings thereon, in consideration of
the enhancement of the value of his adjoining property.
That agreement, although it may not have been evi-
denced by writing, being anterior to the Act of frauds,
and founded on a valuable consideration, would have been
binding in a Court of equity; even had it not been car-
ried into complete execution, by the erection of the pub.
lic buildings thereon, at the expense of the County, the
holding the public buildings there for a great number of
years, and the consequent enhancement of the value of
the adjoining land. The Court is further of opinion,
that the release of Thomas Smith, (under whom the ap-
pellees claim,) contained in the proceedings, being found-
ed on a valuable consideration, (namely, the agreement
and erection of the public buildings before mentioned)
is not only obligatory on the appellees, but even satisfies
the provisions of the said Act of frauds; the clerk of
the Court, in entering the said release of record, being,
quoad hoc, the agent of both parties. On these grounds,
and on that of the County Court of Isle of Iright have
ing duly assigned their right to the premises to Francis
Boykin, (under whom the appellants claim,) by accepting
the Court house erected by him, under the Act of Jan-
aury, 1800, the Court is of opinion that the equitable ti-
dle of the appellants to the said lot should be carried into

perty he was to recei: parted with ? His wa ght only equitable

. We Assembly, but his ca che Court make him a it by parol? it is clearly good, so far visee.

as the act of 1748, in houses in the several was anterior to the at tion, by the Courtoi ral law which all the

notice of, and con

Tunforth p.2012 ford, p. 208.

1811.

V.

OCTOBER, effect; and that the said decree is erroneous; therefore,

it is decreed and ordered that the same be reversed and Franklin

annulled, and that the appellees pay to the appellants Wilkinson. their costs by them expended in the prosecution of their

appeal aforesaid here. And this Court, proceeding to
make such decree as the said Superior Court of Chancery
ought to have pronounced, it is further decreed and
ordered, that possession of the premises in question be
delivered up to the appellants, that the rents and profits
thereof be accounted for by the appellees, and that they
release all their right in the premises to the appellants.
And it is ordered that the cause be remanded to the said
Court of Chancery to be finally proceeded in pursuant
to the foregoing opinion and decree.”

7'riesday, March 17th,

Franklin against Wilkinson. 1312. 1. After an UPON an appeal from a rejection, by the Superior injunction has been wholly Court of Chancery for the Richmond district, of a motion dissolved, the cause be for leave to file a bill of review. set for hear. ing on motion

The decree, which the appellant wished to have reof the defend viewed, was founded on a bill of injunction to stay proint in equity, he cannot take ceedings on a judgment at law in his favour against the advantage of the cirum- appellee. The equity relied upon by the complainant in stance that the bill should that bill was, that a bond, on which the judgment was have been dismissed under obtained, was given for money won at guming between the Act of Ag- him and a certain Davis Booker; that before the said sembly.

bond became due, he became the creditor of the said 05 See Pitts v. Tidwell, Bocker for a larger sum of money, upon a similar consid

eration of gaming, and offered to discount the same, 2. It is no

which the said Booker agreed to, but said he had not the ground for a bill of review, bond then with him, but would, when he went home, that the party was prevented destroy it, or return it, on sight; notwithstanding which, from proving certain important facts, by wrong advice of one of his counsel; or that the other was unable to attend to the cause when called for trial, which circunstance was unkpown to the party, unul after the decrec.

ante.