Yancey against Hopkins. LUND HOPKINS of the County of Powhatan, on the Thursday, 1. If land be listed by the of the revenue a Wrong person, sold purchaser; it proper resort owner for re lief is to a first of March, 1799, filed his bill in the late High Court of Commissioner be cancelled, or recouvey land decreed. 2. An au by law to any officer, where- other persons may be far feited or lost, must bestrict ly pursued in every in- being, by mis by the said Yancey's direction, to himself, at the price of 41. auction, and did not exceed twenty-six years of age on the 23d day of November, the Commis sioner of reve- nue perty of an- such, for tax- ing bought by the Deputy Sheriff, who sold it; conveyed to him by the High Sheriff in February, 1795; and afterwards sold by the Deputy Sheriff; the right of the infant was established against the last purchaser; (who bought with full notice of all the circumstances;) notwithstanding the suit was not brought until six years after the plaintiff attained his full age. 1m419 88 265 Munford. 1m419 93 339 1810. Y cey Hopkins. OCTOBER, 1798; that the plaintiff, in the year 1785, had removed from Louisa to the City of Richmond; that no application was ever made to his guardian, Anthony Hayden, for any taxes due from him; that he had never returned to live in Louisa; that Faris was well acquainted with all the circumstances of the said sale at auction; he living, at the time, on that part allotted to the plaintiff's mother for dower; that there was sufficient personal property on the said land to satisfy any taxes due thereon; that the said Faris had paid little or no money for the purchase made by him of the said Yancey; and that they both had derived considerable profits, having been in possession of the land ever since the auction aforesaid." The bill therefore prayed "a perfect answer, from both the defendants, as to the premises; that all official or other writings, whether deeds or obligations, which had passed between them concerning the said land should be directed to be cancelled; that they should be decreed to surrender to the plaintiff possession of the land, and account with him for all rents and profits arising therefrom; or that he might receive any other or further relief more agreeable to equity." The separate answer of Robert Yancey admitted "that he sold a part of the tract of land mentioned in the bill for the taxes due thereon for the years 1784 and 1785; but averred that he was fully authorized so to do both by law, and by his principal the High Sheriff; that he this defendant had paid the taxes of said land into the treasury, or that there was a judgment against his principal, he does not now recollect which, but inclines to believe the latter; that there was no property that this defendant knew of on said land, of the estate of Hopkins, whereof the taxes could be made; and, as the law then stood, there was no other alternative but to sell a part of the land for the taxes due; that the quantity of non-resident lands in the County of Louisa is very considerable; that, at the rate of taxation on lands at that time, the amount thereof, being unpaid, would have completely ruined this defendant, who was then just beginning to act for him 1810. Yancey V. Hopkins. self; that the land was sold in the name of ELIZABETH HOP- OCTOBER, KINS; that, in that name, it was charged by the Commissioners of the land tax, who by law make out the book for the Sheriff; that there was no land charged to JOSEPH HOPKINS, or LUND HOPKINS; that, by the will of Joseph Hopkins, then deceased, this land was left to his wife Elizabeth Hopkins,* who, at the time the assessment was made, occupied and possessed the same; consequently, the land was charged in the proper person's name; at all events, the land owed taxes to the Commonwealth, and it was the duty of the owner to come to the Sheriff and pay it." This defendant further said, that "the land was advertised four weeks in the Virginia Gazette, according to law; nay, that it had been twice advertised; that, on the last day, no person coming to pay the taxes, and this defendant knowing not to whom to apply, the said Elizabeth Hopkins having intermarried, and gone off, God knows where, the land was exposed to sale, and sold on one month's credit at the most noted place on the premises; that there were several persons present, either of whom this defendant believes could have purchased if they chose; that he did not wish to buy himself, and requested the bystanders to bid; none of whom making a bid, it was, after crying a considerable time, knocked out on this defendant at his bid; that he then gave notice that he would give up his purchase, if the executor of Hopkins, one Anthony Hayden, would come and pay up the taxes and expenses of selling the land in a short time; that he believes that said Hayden was advised thereof, for that he made application some time after (this defendant thinks about six or eight months) to know if the land would then be given up if the taxes were paid; that this defendant then offered to give up the same if he, Hayden, would repay him. what he had advanced, and his expenses, &c.; that Hayden said he had no estate of Hopkins in his hands, but would try to settle it speedily; but so it is that this defendant has not *Note. This allegation in the answer was plainly incorrect; the land being devised in the will to Lund Hopkins only. 1810. Yancey V. Hopkins. OCTOBER, received one single penny, nor has said Hayden communicated with him about the land since; nor has any other per son:" that, after waiting several years, " and having the an nual taxes to pay thereon, this defendant had a deed made to him by the High Sheriff therefor, and, to indemnify himself for the original purchase, and the taxes which he had paid for about fourteen years, sold the same to the other defendant." This defendant insisted "that the lands of infants were not exempt from the payment of those taxes more than any other person; there being no provision in their favour in the law as it then stood;" that from an acknowledgment in the bill it appeared" that the complainant had been of age more than six years in November, 1798; which is double the time the law, as it now stands, allows infants to pay the arrears of taxes; yet, during all this time, the complainant had not applied to this defendant to repay him the taxes which he had paid on said land: if an application of this nature had been made even three years ago, this defendant is confident that he would have given up the land upon the payment of the taxes, &c.; that this defendant did not have a deed executed until the year 1795; one reason for which was, that he did not wish to hold the land; but, in all this time, no person coming to repay him what he had actually advanced, he then determined to have a deed therefor." He farther denied having received any profit or emolument whatever from the said land, except the money arising from the sale thereof; averring that he always considered the land as poor, and of little value, and the rent no object; "the plantation which was on it being old field, and no improvements to accommodate a family." The defendant Richard Faris in his answer averred "that he conceived himself a fair and bona fide purchaser;" that he was present at the sale by auction, relative to which, and to Yancey's declaration that he would give up the land, on receiving the taxes, &c. he mentioned the circumstances nearly according to Yancey's own statement; "that there was no property of the complainant, or of the estate of fo 1810. Yancey V Hopkins. seph Hopkins, deceased, on said land, at the time of the OCTOBER, sale, nor for some considerable time before, whereof the taxes could be made; that Anthony Hayden lived out of the County of Louisa; that this defendant is well assured that the said Hayden knew of the taxes being due; that the land had not been occupied by any person since the sale, until the last year; except a part which Anthony Hayden rented out, and for which payment was made to him, and the complainant; that, after the death of Joseph Hopkins, Elizabeth Hopkins, widow of said Joseph, resided and lived on the said land, and held the whole tract as her own until she intermarried with one Samuel Baber; after which she took her third part of said land.” A number of depositions were taken and filed, from which, taken together, it appeared that Yancey's account was in substance correct, of the manner in which the sale by auction was conducted; of the declaration made by him at the time, and of the subsequent transactions; that, at the time, and before the sale took place, the said Yancey inquired of the persons present what part of the land would be least injurious to the tract, to be sold off for the taxes thereof; that the east end was generally agreed to be that part, and, accordingly, the part sold was laid off on the east end; that the land in question (together with many other tracts) was first advertised to be sold at Louisa Courthouse on a Court day; but none were sold; it being doubtful whether a sale at the Court-house would be legal; that Charles Fancey, sen. one of the Deputy Sheriffs consulted Edmund Randolph, then Attorney-General; and, upon his advice, the sales were appointed to be upon the respective premises, and accordingly advertised as long as the law directed in Thomas Nicholson's paper, printed in the City of Richmond, specify. ing the day of sale of each tract; (which, as to the tract in question was the 19th of December, 1786;) that the same advertisement was set up at the Court-house, at Trinity Church, in the said County, and at other public places; (but it did not appear in evidence that it was set up at the Church |