1811.

Y.

was evicted; the proceedings in the federal Court; and OCTOBER,
the plaintiff's surrender to the marshal of that Court,
to avoid a forcible eviction. It was further found,“ that M'Clenahan
the plaintiff was, prior to the time of his taking the said Gwynn
assignment, informed, in general terms, that the said
demised premises had been mortgaged by the said Tho-
mas Nelson, the lessor, subsequently to his said lease
to Richard Milton, and that a sale of the same, under
such supposed mortgage, would probably take place;
that the general impression and belief of the public, in
the vicinity, was that the same had been so mortgaged by
the said lessor ; but that the plaintiff was probably igno-
rant of the existence of the mortgage made as aforesaid
by Lewis Burwell, and purchased the said assignment
under the impression and belief that the full and quiet en-
joyment of the demised premises, for the then unexpired
residue of the said term, was secure to him, notwithstand-
ing any mortgage; that it was known to the plaintiff that
there was a mortgage on the premises, included with
other lands, before he made the purchase of the lease ;
and that a sale of the said land was expected generally
in the neighbourhood, before and after the said assign-
ment to the plaintiff; that the last-mentioned general in-
formation the plaintiff had received in several companies
in the neighbourhood, in which he was present; that the
probability of the sale, which took place as aforesaid, of
the said land, was particularly mentioned, immediately
before the conclusion of the bargain between the defend.
ant and plaintiff; that the defendant had sown about 80
bushels of wheat on the premises, and that the plaintiff
reaped and enjoyed the crop.” The verdict concluded
with finding for the plaintiff in the usual conditional
manner) 913 dollars and 50 cents damages.

The district Court entered judgment for the plaintiff;
whereupon the defendant appealed to this Court.

Williams and Wickham, for the appellant.

Botts, for the appellee,

OCTOBER,

1811.

V.

January 30th, 1813, the following opinion of the

Court was pronounced : M'Clenahan “ The Court (not deciding any other point occurring Gwynn, in this cause) is of opinion, that the action did not lie

against the present appellant ; the principle being, that, in case of a mere assignment of a lease, the assignor is not liable to restore the purchase money, in case of evic. tion; and especially in this case, where the lessor's representatives have not been previously resorted to, or shown to be insolvent,* and in which, also, no special agreement for the assignor's responsibility has been en. tered into, although the liability of the land to eviction and sale seems, from the verdict, to have been in the contemplation of both the parties. On this ground, the judgment is to be reversed, and entered for the appel

. lant,"

Note. That an action of covenant lies, at the common law, by the assignee of the lessec, against the lessor, or the grantee of the reversion, in te spect of the privity of estate. See 5 Co. Rep. 17. a. Spencer's case. For the same reason, of privity of estate, the lessor may have debt or covenant, for rent, or for not repairing, &c. against the assignee of the term, at common law. 3 Co. Rep. 22. b. Walker's case. See, also, 1 Saunders, 241. potes (5.) and (6.); Iolford v. Hatch, Doug. 182—186; Palmer v. Edwards, Ib. 186. note (59.) But if a term be assigned by way of mortgage, with a clause of redemption, the lessor cannot sue the mortgagee, as assignee of all the estate, right, title, interest, &c., of the mortgagor, even after the mortgage has been forfeited ; unless the mortgagee has taken actual possession. Eu• ton V. Jaques, Doug. 434. And if the assignee of a term assign all his et tate, right, &c., to another, without fraud, he is thereby discharged from all responsibility to the lessor; (Walker v. Reeves, Doug. 461. note (1.) Chancellor v. Poole, Ibid. 764 ; Taylor v. Shum, 1 Bos. & Pull

. 21. ;) if he show that the lessor had notice of the assignment, and that there was nothing dan at the time of the assignment. S Salk. 48,

Wilson and Trent against Butler and others. Argued Feb.

1st, 1813.

UPON an appeal, allowed by a judge of this Court, 1. Although a

person, whose from an order of the superior Court of chancery, of the property is ta- .

ken in execuRichmond district, dissolving an injunction. (a.)

tion to satisfy The bill was exhibited by James Wilson and Stephen the debt of

another, may W. Trent, trustees, named in two deeds of trust, for Anne proceed to re

cover that Copland, wife of David Copland; and the said Anne Cop-property, or

damages for land, by the said James Wilson, her next friend, stating the taking and that David Copland, being justly indebted to Benjamin thereof, in a

, Harrison, by bond, in the sum of 3371. 10s., with lawful Court of law;

and although interest thereon, from the 15th of May, 1809, and to Car- the sheriff, ha

ving doubts as ser B. Harrison, by bond, in the sum of 5541. 8d., to the title to

the property, with interest from the same day, Benjamin Harrison, may demand

from the ereexecutor of the said Benjamin Harrison, deceased, and litoran it

inWilliam A. Harrison, administrator of the said Carter B. demnifying

bond; yet Harrison, deceased), severally instituted actions of debt neither of

these remeagainst the said David Copland, on his said bonds, in the dies is in ex

clusion of a county Court of Cumberland, on which judgments were bill of injunc

lion to preobtained at Fuly Court, 1809; that executions were se.

vent the sale. verally issued thereupon, and levied, each, on sundry 2. A suit on slaves, whose names were mentioned ; that the slaves, bond

brought a. 45 head of sheep, 19 head of cattle, and a mare, taken to gainst the satisfy the execution in favour of Benjamin Harrison, county, in were bought by him of the sheriff, for the sum of 353l. 4s, not reside :

he confessed 3d.; and the slaves, taken to satisfy William A. Harrison, were, in like manner, bought by him for the amount of he return of

the worit, and his debt and costs; that, afterwards, the said deeds of furnished the

debtor in

which he did

1811.

y.

OCTOBER, trust were executed by the said Benjamin Harrison, ad.

ministrator, de bonis non, of Benjamin Harrison, deceasWilson and ed, and William A. Harrison, administrator of Carter B. Trent

Harrison, respectively, on the 20th day of November, 1809, Butler and others, reciting that it was the intention of the said Benjamin

Harrison and Carler B. Harrison, in their lifetime, they being brothers of the said Anne Copland) that she should have the benefit of the said debts during her life, for her separate use and support, &c., and therefore conveying the said slaves, and other personal estate, to the com. plainants, Wilson and Trent, in trust, for her benefit, &c.; that the said trustees, being so entitled to the said slaves and other personal estate, suffered a part of them, by her wishes and consent, to be worked upon the lands of the said David Copland, but entirely under their own controls for the purpose of raising bread, &c., for the support of the said Anne and her children; others were necessarily employed as house servants for her convenience, and the stocks kept on the land for the support of the establishment; that since the recording of the said deeds of trust, a judgment was obtained by John Butler & Co., in county Court of Buckingham, against the said David Copland, for upwards of 280l., and a fieri facias thereon was levied on several of the slaves conveyed in trust as aforesaid. The object of the bill was, therefore, to pre. vent a sale of those slaves; the plaintiffs suggesting, that although they might, as trustees, perhaps, recover their value at law, yet that would defeat the very objects of the trust, as the hire of slaves greatly exceeds the in: terest of the purchase money, which was one of the strong est motives of the donors for investing the money in the said slaves; that the subject of trusts, and the faithful execution thereof by the trustees, is the peculiar province of a Court of equity; and that the plaintiff

, Anue Copland, could apply to that Court alone, for the purpose of having the fund preserved for her. The answer of William M.Kenzie, acting partner

of the firm of Fohn Butler & Co., (who considered himself

1811.

the only defendant beneficially interested in the defence OCTOBER, of the suit,) alleged a number of circumstances, inducing him to believe that the deeds of trust were a fraudu. Wilson and

Trent lent contrivance to cover the personal property of David

Butler and Copland, for the benefit of his family, against the just others. demands of his creditors. “The bonds are said to be executed on the same day, May 15th, 1809; the obligees die; an executor is appointed for one, an administrator for the other; suits are brought, and judgments on the same day of July, 1809-incredible despatch, if all were fair! The suits are brought in Cumberland, where the defendant, Copland, did not reside ; judgments must have been confessed at the return day, if the bonds were executed in May. Executions were taken out by Copland himself: he furnishes the sheriff of Buckingham with a list of the property, to be advertised to be sold at his own house. The sheriff never levied the executions, but attends and cries the property out to the bids of the plaintiffs, being not opposed by any other bona fide bid. der: the property was never in the possession of the sheriff, and never out of the possession of Copland, until the sheriff, by virtue of the execution of John Butler & Co., for the benefit of this defendant, seized and removed some of it from his plantation. The grantors, in the deeds referred to, never had possession : the deeds are made and recorded in Charles City and Prince George Counties, while the property still remained in the county of Buckingham, in the possession of David Copland; and the trustees never had possession nor control of any part of it."

The answer of David Copland denied that any fraud or collusion existed in the transactions in question; averring, that the bonds were given, and judgments obtained, for the amount of cash and tobacco advanced by the bro'thers of his wife, for his use, and, for the most part, to relieve his estate from executions; "that, shortly after the death of the last of those friendly brothers, this respondent was called on by their sons and legal representatives, to secure the balances due, and left it with them Vol. III.

4 B

)