11.

ant in this case ba E his original bil

of which his bond uus to his said per Ed Co. to secure the

a

informed him that it was under a mortgage to James OCTOBER,
Smith & Co. And, wholly from what Stockton stated, in
regard to the encumbrance that was fixed on the land, he Stockton
declined his bargain ; and, in a few days thereafter, Coak,
Stockton himself became the purchaser. Thus did he, by

subtle artifice, defeat Cross of the purchase, in order to
secure it to himself; for, although the fact was true, that
the land was under a mortgage to Smith & Co. yet, as
his motive was to secure the purchase to himself, (which
He, no doubt, knew to be an advantageous one notwith-
standing the encumbrance,) it was a palpable fraud prac-
tised upon Cross. And, with a full knowledge of all these
circumstances, in which he had been an artful and a prin-

a
cipal actor, he had the address to prevail on the Roberts's
(either from their ignorance, or their necessities,) to co-
venant, in their deed of October, 1787, (which he, no
doubt, had prepared himself, that the said land, " at

•
that time, was free and clear of and from all manner of
encumbrances, and from the just claim of any person or
persons whatsoever ;” and, as such, warranted the same
to the purchaser, who, had he iotended upright and fair
dealing with the parties, should have deducted the sum,
for which the land was mortgaged, out of the price, and
paid, or given his bond or bonds for the balance; and ta-
ken a special warranty for the land, adapted to what he
well knew to be the circumstances of the case,

It appears, too, from the exhibits and evidence in the
cause, that, notwithstanding the mortgage which Stock-
ton afterwards discharged, it was to him an advan-
tageous purchase ; for it appears by the deed of trust, or
mortgage, that, in addition to the 246 acres purchased by
Stockton, there was a tract of 220 acres adjoining, (which
had been sold by Smith & Co. to Roberts,) comprised in
the deed; making, in the whole, 466 acres; which latter
tract of 220 acres was subject to contribute in due pro.
portion, to discharge the sum for which the whole was
mortgaged, to wit, 641. 11s. 4d. And it is, also, in evi-
dence, that Stockton sold a part of the 246 acres, (but
VOL. III

K

red the papers ***

kept them several

his contract with timating to the de bts would never be to secure the par an interrogatory; hat he understood

but that sertising it; and s that it was not a half after the alwa ysiotended n the bond, more t to him, to se

pledged.) should

i deposes that he purchase of the wwn house, and

V.

p. 179.

October, how much thereof does not appear,) to one Hubbard, for 1811.

five hundred dollars. Stockton

But, however that may be, I am of opinion that, if StockCook ton would avail himself of the warranty in the deed from

the Roberts's, his remedy (if any he hath, is against them :

though, according to the principles laid down by the (a) 2 Munf. Judges of this Court in the case of Granlland v. Wight, (a)

they ought, in equity, to be relieved against their warran-
ty: The case alluded to was this: Wight sold to Grant-
land a piece of ground. lying on a street in Richmondo
by certain metes and bounds, marked out at the time of
sale, which lot was supposed, and publicly advertised by
Wight, to extend fifty feet on the street, but, on measure-
ment, it fell short of the distance, between 5 and 6 feet.
Grantland, after his purchase, and with full knowledge of
the deficiency in the ground, obtained from Wight a writ-
ten contract to make him a title, in which was a covenant
that the ground extended fifty feet on the street; when,
in fact, it fell short upward of five feet. Grantland
brought his bill to have a deduction in price of the ground;
not pro rata, according to the deficiency, but claimed an
extra deduction, alleging that the remainder of the
ground was rendered of much less value, on account of
the said deficiency. Wight contended, only, that the de-
duction should be in due proportion to the deficiency;
but the Judges of this Court were unanimously of opi-
nion that Wight would have been relieved, altogether,
against his covenant, had he sought such relief; although
it was executed under his hand and seal; because Grant-
land was apprised of the boundaries of the ground, though
not of the quantity, at the time of the purchase; and ac-
quainted with the deficiency, at the time of the contract.

In the case before us, Stockton, at the time he obtain-
ed a covenant that the land was then free and clear of
and from all manner of encumbrances, and, as such, war-
ranted to him, had perfect knowledge, (though expressly
denied in his bill,) that it was under a deed of trust, or
mortgage to Smilh & Co. and had deceitfully availed him-

a

one Hubbard, for

1811.

West.

anion that, if Stock - in the deed from 7, is against then: aid down by the Elland v. Wight, () inst their warran

self of that knowledge to wrest the bargain from Cross, October, and secure it to himself. The two cases are different in circumstances, but, in principle, appear to me the same.

Blakey There is abundant evidence in the record, that Stockton was a litigious, contentious man; and his conduct, throughout the transactions before us, appears to me replete with chicane, artifice, and want of candour. I therefore think him not entitled to countenance in a Court of equity; and am, upon the whole, of opinion, that the decree is just, and ought to be affirmed: but, a majority of the Court thinking otherwise, the decree is to be reversed with costs, and the injunction made perpetual.

و

Eht sold to Granto
reet in Richmond
out at the time of
icly advertised by
, but, on measure
reen 5 and 6 feet

full knowledge of
rom Wight a writ
.ch was a covenant
che street; when,
feet. Grantland
ice of the ground;

of

V, but claimed as
emainder of the
le, on account
only, that the de
, the deficiency;
imously of opis
-ved, altogether,
relief; although
: because Grant-
ground, though
rchase;

and
of the contrat
time he obtain
e and clear of
l, as such, was
ough expressly
ed of trust, or

IN this case, (which was a bill of injunction, filed in Upon a

county court's the County Court of Buckingham,) on the defendant's mo- overrulinga tion for dissolution, it was ordered and decreed, that the motion for dis

solution of an motion be overruled; and (" in order that an appeal injunction, the

parties cannot might be taken” to the Superior Court of Chancery,) the make the in

perinjunction was “ by consent of parties,” perpetuated. petual, by con.

, The chancellor reversed the decree, and directed the bill sent, in order

an ap

peal may be to be dismissed; whereupon the complainant appealed.

token ; but to The opinion of this Court, pronounced Wednesday, Jan. authorize an

appeal, the uary 22d,

was as follows; “ It not appearing, that the cause must be injunction was perpetuated, by the act of the County Court, ceeded in to s or that any final judgment was rendered, by the said final decree.

. court, on the case, although (for the purpose of appeal- See in Noring) the parties consented that the bill should be perpe- and Gray, %

Munford, tuated ;-this Court is of opinion that the appeal did not 386. another lie to the Superior Court of Chancery; and that that an appeal

ac

case in which

could not be taken by con

sent of parties. See also M*Call, v. Peachy, 1 Call. 55. and Clark v. Connay, 1 Manford, 160.

j'availed him

1811.

OCTOBER, court, consequently, erred in reversing the said decree,

and dismissing the bill. The said decree of reversal is Philips therefore reversed with costs; and the appeal dismissed; Melson.

in order that the case may be proceeded in, from the de-
cree overruling the motion for dissolution as aforesaid."

Argued, Jan.

1812.

Philips and Wife against Melson and Others.

In

a

tate in

this ISAAC MELSON, of the county of Accomack, by his case, a general 'residoary last will and testament, dated the 5th day of June, 1784, clauseasiacon and recorded June 1st, 1785, devised his land to his will struerl as not wife “ during her widowhood, to raise his four youngest carrying the reversion af- children on. He gave to his son Levin Melson, one large ter a life eso

the iron pot, his riding saddle, and a black heifer; to his land;

there being other wife and four youngest children, his two best feather which the tes. beds and furniture; to his daughter Nancy, one safe; tator evident to his daughter Betty, one desk; and to his daughter ly intended to convey by

Polly, one square walnut table. He desired the rest of guch clause; and moreover, his estate to be sold, and the money to be equally divided the life estate in the land be among his four smallest children, and concluded with aping created for the benefit of pointing Charles Bagwell executor, who refusing to act, the same per administration, with the will annexed, was granted to sony, to whom the residuum M'Keel Bonowell. The personal estate of the testator, was bequeathed: it was in possession, at the time of his death (exclusive of the therefore decided, that specific legacies aforesaid) was worth, according to the entitled to the inventory, 42l. 9s. 10d. The debts paid by the adminisfee simple but

that ii trator, and necessary expenses of funeral and adminisvested in the tration, amounted to 42l. 158. 101-2d. heir at law. Rachel Melson, the widow of the testator, by a “bar

u See Kennon v. M'Ro. bert and wife: 1 Wash. 111, 112, where it was said, that a testator might devise lands for years

or for life, and limit no particular remainder; and, in that case, the reversion will pass in the residuary clause :" but the reason given is, that such appears to be the intention of the testator. A case, therefore, like this, in which the intention of the testator, collected from the whole will taken together, appears to be different, may properly be considered as not conflicting with the principle there laid down.

See Wyatt v Saddler's heirs, 1 Munford, 537; and Johnson and others v. Johnson's - idow and heirs, Id. 549.

1811

the said decree, ze of reversal is ppeal dismissed

in, from the de on as aforesaid."

V. Melson.

and Others

Accomack, by his ay of June, 1764 ed his land to his his four youngtät Melson, one large k heifer; to his two best feather Nancy, one safe;

to his daughter esired the rest of je equally divided ncluded with aprefusing to act

was granted to
of the testator,
'exclusive of the
according to the

by the adminis-
al and adminis

gain with Levin Melson, his eldest son and heir at law, OCTOBER, , on certain conditions, which she considered beneficial to

Philips herself, gave up to the said Levin, possession of the land devised to her as aforesaid. She died, and after her death, he remained in possession of the land, and, by his last will and testament, dated the 31st day of March, 1795, and recorded June 29th, in the same year,

devised it to his wife Nanny Melson, during her life or widowhood; and at her death or marriage, part to his son Noah Wyat Melson, and his heirs for ever, and the residue thereof to his son James Milliner, and his heirs for ever.

Matthias Philips, having married Nancy, the only survivor of the four youngest children of Isaac Melson, (the other three having died unmarried, and without issue,) laid claim to the whole, or a considerable part of the said land, contending that, by virtue of the clause in his will, by which he directed the " rest of his estate to be sold, and the money to be equally divided among his four youngest children,” the remainder over, after the widow's life estate in the land, was devised to the said youngest children.

To try his title, he instituted an action of ejectment againt Nanny Melson, the widow of Levin Melson ; in which action a case was agreed, stating, among other things, that Betty Melson, one of the said four youngest children, died in her father's lifetime ; and that Caly Melson and Polly Melson, the other two, departed this life after having survived him; and “ that the said Isaac Melson, at the time of his death, left two daughters not mentioned in his said will, to wit, Peggy Wyatt, who is now living, and Susanna Smith, who has died, since the death of the said Isaac Melson, leaving issue, who are yet alive."

Judgment was entered for the defendant in ejectment; whereupon Philips and wife filed their bill in the Superior Court of Chancery for the Williamsburg district, making the lawful representatives of Isaac and Levin Melson defendants, and praying a decree for the land

tor, by a “bar