payment of the purchase-money, and before he received the conveyance, this was sufficient to bind him.(a) This notice was not sufficient APRIL, 1810. Lewis V. Madisons. 3 Atk. 304. Nichols. But, 4. for the appellant. to bind him; there being nothing which shewed a lien on (a) Mitj 215. the land in question. Indeed, if such a lien could ultimately Hardingham exist, it might never have attached. For aught that ap-adpears to the contrary, the land in Kentucky may yet be got. ford v. Wilson. Sugden, 487. No eviction or loss of that land is proved; and without evi- 2 Eq. Cas. dence of this, the heirs of William have no claim upon the 9. Jones V. Botetourt land.(b) Lewis therefore remains a bona fide pur- Atk. 384. chaser without notice, against whom a Court of Equity will never decree specific performance. Abr 685 pl. Stanley 1 Wiggy Wigg. 3 P. Wms. S07. Tourville v. Naish. 2 ry V Lord mort- Windsor. 1 The Ch. Cas. 34. More v.. May (b) Yancey v. M 390. 5. The proper parties are not before the Court. If the Atk. 630. Stocontract is regarded as a mortgage, the executor of the gagee, and not his heirs, should be the plaintiff.(c) widow of Rowland Madison was a necessary party, because how. entitled to dower. If she was not so entitled in this case, Lewis, 4 H & a man might deprive his wife of dower by anticipating and (c) 1 Ch. Cas. 51. Powell, passing off his acquisitions. The personal representatives 1047, 1948. of Rowland were also material parties; not only on account of their interest, but for the sake of information. Being possessed of his papers, they might, by their answers, give all-important information. To this it was answered, that a suit to foreclose a mortgage may be brought against the heir of the mortgagor, without making his executor a party; and, by parity of reason, the suit here being to recover the land. specifically, the heirs were the proper plaintiffs. If the widow of Rowland Madison be alive, as suggested, (of which there is no proof,) she need not be made a party. Her dowerright is paramount to any other, and cannot be affected by the event of this suit. The rule (though general) that all persons interested Note. See Graham's Ex'rs v. Carter, 2 H & M. p. 6, 7. Fell v. Brown, 2 Bre. Ch. Cas. 279. 3 P. Wms, SSS, note A. APRIL, 1810 Lewis V. Madisons. (a) Mitj. 39. 146. (b) 1 Rev. Code, p. 116. s. 5. must be parties, is yet liable to exceptions, according to the circumstances of each case. (a) In Collins v. Griffiths, 2 P. Wms. 313., it was decided that the executors of a deceased obligor in a joint and several bond may be sued in equity for the debt, without making the surviving obligor a party. So, in Harris v. Ingledew, 3 P. Wms. 93, 94. the suit being to subject lands devised to the payment of debts, and the devisees having been in quiet possession eleven years, a sale was decreed without the heir being a party: and in Darwent v. Walton, 2 Atk. 510. where one partner was out of the kingdom, the partner before the Court was compelled to pay the whole demand. In this case, the fact is established that Rowland Madison died insolvent, in another State; and there is nothing in the record to shew who his representatives were, or whether he had any. But, if their names were known, the act of Assembly, which authorizes proceedings against absent defendants, applies only to cases where a plaintiff wants a decree, but does not compel him to proceed against them.(b) Here the plaintiff did not want the representatives of Rowland Madison to be parties, as nothing could be got from them. It was the duty of the defendant to have called upon them for aid, if he wanted the information they could furnish. In reply, it was said there was no proof of the insolvency of Rowland Madison; neither was it averred in the bill, or proved, that his heirs resided in Kentucky. But, if such were the case, the plaintiffs were bound to make the proper parties, not for their own convenience, but the justice of the case. The authorities cited, as exceptions to the general rule, are not apposite to this. In each of those cases, the defendants, who were separately sued, (or the lands held by them,) were considered individually responsible for the whole claim of the creditor: of course there might have been no necessity to make other parties. Yet the case from 2 P. Wms. 313. seems inconsistent with the later authority of Madox v. Jackson, 3 Atk. 406. In this APRIL, 1810. Lewis V. Madisons. suit, it is essential that Rowland Madison's heirs should be parties, whether he died insolvent or not; for they are interested in the question concerning this land, the title to which is derived from him. Besides, the derivative purchaser has, universally, a right to the assistance of the vendor, or his legal representatives; because they can prove whether the contract was discharged or not. They cannot be examined as witnesses, because they are interested; and the rule is universal that, where, on the ground of interest, a person cannot be used as a witness, he must be made a party.(a) If Lewis, on being cast, were to sue the heirs (a)1 Call, 428. Harrison of Rowland for compensation, they might yet prove against v. Harrison, S him, that Rowland satisfied the contract to William; for, not Hoover being parties to this suit, they would not be bound by it. Donnelly. But he should not be driven to this alternative; for a Court. of Equity abhors circuity of action, and ought to prevent multiplicity of suits.(b) There was no necessity of a demurrer for want of parties; for in Call v. Scott, and Hoover Knight, How. v. Donnelly, there was no demurrer.(c) H. & M. 316. V. (b) 3 P.Wms. 333. Knight v. Excheq. 216: Harr. Ch. Pr. 35. (last edit.) 16 Viner, 248. Tuesday, May, 29th. The Judges pronounced their pl. 6. Call v. opinions. Judge TUCKER, after reciting the terms of the agreement between William Madison and Rowland, proceeded as follows: To this contract Gabriel Madison, a third brother, was the only subscribing witness. It was proved by him and recorded in Lexington District Court, State of Kentucky, Sept. 18, 1800, almost twenty years after its execution, and six months after this suit was brought. On the same day that this contract was entered into, Gabriel Madison agreed to let Rowland have land in Kentucky, under the proclamation, to enable him to comply with that conWilliam was privy to this agreement, and afterwards (as Gabriel thinks) made choice of 1,000 acres on Simpson's Scott, (MS.) (c) See also 16 Viner, 267. pl. 1. APRIL, 1814 Lewis V. Madisons. Creek, in a letter written to Gabriel, who had 3,000 acres in On the 14th of July, 1781, William Madison conveyed to John Gordon, 1,000 acres of land on Boon's Creek, Kentucky. This, it is said, is the land which Rowland Madison had, previously to the above-mentioned contract, sold to John Gordon, without any authority from William, and received some trifling consideration for, from John Gordon. But the consideration expressed in the deed, is one hundred pounds, current money of Virginia, in hand paid by Gordon to William. No other, or further consideration is mentioned. On the 5th and 6th of November, 1781, John Craig and wife, by deeds of lease and release conveyed to William Madison, four hundred acres of land in Montgomery County, Virginia, called Hand's Meadow. This land is said to have been given by Craig to Madison, in exchange for the 1,000 acres on Simpson's Creek, which Gabriel, in behalf of Rowland, was to furnish William with; but the consideration expressed in the deed of release is 400/. current money of Virginia, by Craig to William in hand paid. Hugh Crockett states, that he understood from both Craig and Madison, that the Simpson's Creek land, and 125l. specie, were to be in full of this land; that, since William's death, (which happened in March, 1782, and in the life-time of his father,) he has understood and believes, one Hite had established a better title to the Simpson's Creek lands; that Craig, in his presence, applied to Gabriel, in whom the legal title, under which William claimed, was, to make him a deed, which Gabriel said he could not do, but would give him in lieu of it 1,000 acres on the Ohio; which offer Craig refused, and has since informed the witness that he had got the Hand's-Me adow tract back, and was in possession of it; though the witness understood the legal title thereto is still in William Madison's heirs, the present complainants. In March, 1782, William Madison died intestate, and the. bill charges that Thomas Madison, William Preston, and the defendant Andrew Lewis, took out letters of administration on his estate, and of course that they possessed themselves of and examined all his papers, among which the agreement first mentioned was, which was by no means a secret in the family. The answer denies that William's pers were ever in the defendant's hands; alleging that they were delivered to Thomas Madison, by William's widow; he, Thomas, having signified the advantage of his keeping the papers, as he was a practising lawyer. In March, 1784, or before, John Madison, the father of William, Rowland, Gabriel, and Thomas, died. By his will he devised to his wife the plantation whereon he then lived, during her life. And, as to the lands whereon he then lived, and whereon his son William lived, he devised the upper part, whereon he then lived, to his son Rowland, in feesimple; and the lower part, whereon William lived, to William's widow for life, with remainder to the present complainants. The upper part, thus devised to Rowland, forms. the subject of the present controversy. The bill charges, that at the time of the agreement entered into between William and Rowland, as before stated, it was well known among the brothers, and others, that their father intended to devise that part, called Voss's, to Rowland in fee; and that it was this identical land which Rowland bound himself to give William in recompense for the Boon's Creek land, (which he had sold, as stated in the agreement,) in case he failed to comply with his engagement, to make William a clear and undisputed title to 1,000 acres of military lands: that John Madison, the father, was acquainted with the existence of this contract, and by no means disapproved of it; as in a will of an early date he had devised the same lands to Rowland, and, though shortly before his death, he altered his will in some other respects, he continued that devise to Rowland; that the defendant, Andrew Lewis, had married a sister of William and Rowland, and was unusually intimate with them and their af APRIL, 1810. Lewis V. Madisons. |