OCTOBER, his knowledge, which he might abuse to his own advan

1810.

Yancey Hopkins.

tage: he has no other information on the subject than is derived from the books of the Commissioners as aforesaid: it would be too much to suppose him conusant of the particular circumstances attending all the tracts of land in his County. This case then does not seem to fall within the reason of the principle before mentioned; and it is not shewn by any adjudged case that the inhibition has in England been extended to Sheriffs, or Collectors, though, I presume, the case must have occurred in a thousand instances. It is true, indeed, that the act of 1787, c. 42. premising that abuses had taken place in this particular, declared that a purchase of lands sold for taxes by a Sheriff or Deputy Sheriff, and bought by himself, should thereafter be considered as held in trust for the payment of the taxes, and might be redeemed by the proprietor: but on this act it is to be remarked that it not only does not apply to this case, being posterior to it, but, on the other hand, admits and recognises the frequency of the practice of bidding by Sheriffs in such cases, or, in other words, the custom of the country in that particular; and, on this ground, brings this case within the reason of the decision of this Court in respect of executors, in the case of Anderson v. Fox, 2 H. & M. 245. In that case it was held, or seems to have been held, on this last ground only, i. e. the practice of the country, and the consequences resulting from departing suddenly from it, that a purchase by an executor from himself, if fair in all respects, should be supported. (See Judge TUCKER's opinion, p. 263.) If such considerations were considered to have this effect in a case coming directly within the principle aforesaid, (for an executor is emphatically possessed as well of the secrets, as of the confidence of the testator respecting his property.) much more so will they have that effect in cases in which such knowledge and confidence is wholly wanting if they had this effect, in cases in which the purchase by the execu for was entirely voluntary, much more so would they have

1810.

Yancey

V.

Hopkins.

that effect where the provisions of the laws on this subject OCTOBER, would, as it were, inflict a penalty upon the Sheriff for not bidding, and where his bidding might be absolutely necessary to counteract combinations to defeat the collection of the revenue, whether arising from the sympathy of the bystanders, or other causes. As to the general custom on this point, it does not rest only on the recognition of the act of 1787, and various other acts of Assembly, but is admitted, in this case, by the deposition of Charles Yancey, sen. who also instructed the deputies acting under him to purchase, in case no other person would do so.

With respect to the price at which this land was sold, it is true it was remarkably low; but it is also proved that the land was of very indifferent quality; that lands of that description would scarcely sell at any price; and that there were a great many tracts offered for sale in Louisa, at the same time, and for the same purpose: indeed, according to the deposition of Captain Hughes, who on one occasion acted as cryer of these lands, it may be said that this tract, comparatively, sold well; for he tells us that many whole tracts of land were sold to pay the taxes, whereas only half of the tract in question was found necessary; whence it would seem that this land sold for 100 per cent. more than some other tracts in the same County.

On these grounds, and because the appellant Yancey was compelled by the laches of the appellee's guardian to hold the land, (which is also proved to have been very unproductive,) and pay taxes thereon, for a term vastly longer than that subsequently allowed, by law, to infants to come forward and redeem their lands, I am of opinion that the bill of the appellee ought to have been dismissed. While it is very probable that many abuses may have occurred in cases like the present, the testimony in this cause (while it is not seen that the purchase was at that time interdicted by the provisions of any statute, or any equivalent principle, and was sanctioned on the other hand by the practice of the

1810.

OCTOBER, Country) convinces me that the appellant Yancey acted in the case in question with all imaginable fairness.

My opinion is to reverse the decree, and dismiss the bill.

Judge FLEMING. It has been well observed by Judge TUCKER that, whenever an authority is given to any officer, or other person, by law, whereby the estates or interests of other persons may be forfeited, or lost, such authority must be strictly pursued in every instance: and, I will add, that penal laws of every description are to be strictly construed; and nothing therein taken by implication, or intendment; and, more especially, where the estates or interests of infants may be affected: and the laws subjecting lands to be sold for the payment of taxes I consider as highly penal. By the act of October, 1781, c. 40. the Commissioners of the taxes are required to take an account in writing of the quantity of land belonging to all persons within their County, (except their own,) and also the name of the proprietor or proprietors thereof. Here, then, at the very threshold of the business, the direction of the law was departed from, by the Commissioners' mistaking the proprietor, and entering the whole 400 acres devised to Lund Hopkins, by his father Joseph Hopkins, as the land of Elizabeth Hopkins, when she had only a life-estate in one third part, as her dower therein. The Sheriff's books for the collection of the taxes were, no doubt, made out from those of the Commissioners; and thus the mistake was continued till the 19th of December, 1786, when the land belonging to Lund Hopkins, an infant of tender years, was sold, as the land of Elizabeth Hopkins, for less, perhaps, than a fortieth part of its real value; at a time, too, when it is in evidence that, at the day of the sale, there was property on the premises sufficient to have paid the taxes due, belonging to Richard Faris, who then lived thereon, as purchaser of the dower of Joseph Hopkins's widow, who, at that time, was married to Samuel Baber, or Beaver, and

OCTOBER,

1810.

Yancey

V.

Faris afterwards became a purchaser of the land in controversy, with full knowledge of the preceding circumstances; having declared in the presence of Martha Anderson, (about the time he made the purchase,) that he expected to be sued for the said Hopkins. land, but that he bought it "to spite the rascal;" alluding to Lund Hopkins, as the witness supposed.

For these reasons, I think the decree is a just one; though not on the ground of any fraud practised by the Sheriff: and it is an invariable rule with me never to reverse a judgment, or decree, without a thorough conviction that it is erroneous. By the majority of the Court the decree was AFFIRmed.

Mason's Devisees against Peter's Administrators.

Monday, October 22.

UPON an appeal from a decree of the Superior Court of 1. A simple Chancery for the Williamsburg District.

contract creditor, having

of obtained a

judgment by

an executor,

tain a suit in

assets, against

landed pro

The suit was originally brought in the late High Court Chancery, by David Ross & Co. and Walter Peter, against the defaultagainst executors and devisees of James Mason, deceased, and, having cannot mainabated by the death of Walter Peter, was revived on behalf of equity, for James Freeland and Robert Kennan, his administrators. Its ob- marshalling ject was to obtain satisfaction, of certain simple contract claims deviseesof the upon the estate of the said James Mason, out of lands devised to perty, until he has fully his sons; the bill suggesting that the executors refused to pay prosecutedhis them on the pretence "that there had not come to their hands claim at law, against the sufficient of the personal estate of their testator, for the payment executor and of his whole debts, and that they must first discharge the special2. A judgment ties, and such claims as are considered entitled to a preference in by default, athe distribution of the assets." The plaintiffs contended, that gainst an executor, is prithe devisees having had the benefit of the personal estate applied ma facie ad

his securities.

mission of as

sets.

3. A judgment against the executor is no evidence against the heirs or devisees of the real estate. 4. A decree against devisces holding by several and distinct devises, ought not to be joint, but pro ruta.

5. Quare, whether, and under what circumstances, a Court of Equity can decree a sale of land descended or devised, (without any specific lien, or any charge, either general or special, by a conveyance or will of the ancestor or devisor,) to satisfy a bond, or a simple contract creditor, claiming on the principle of marshalling assets? Especially, can such decree be made, in any such case, where the rents and profits of the land are sufficient to keep down the interest accruing on the debt?

V.

OCTOBER, for their ease, in discharge of debts which would otherwise have 1810 been a lien on the real estate, and the same (the personal estate) Mason's De being of sufficient value and amount to discharge and satisfy all visees the debts due by simple contract, the creditors by simple contract were entitled in equity to compensation for the same, and that so much of the real estate ought to be sold, as shall be sufficient to replace the personal estate applied or used in payment of debts, due by bond, and other specialties of equal or higher dignity."

Peter's Ad

ministrators.

No copy of the will of James Mason was inserted in the record: but, from the bill and answers, the devisees appear to have been entitled to separate tracts of land by several and distinct devises. The claim of David Ross & Co. rested on an open account, against which the act of limitations was pleaded. That of Walter Peter was also by open account originally; but a judgment by default had been obtained upon it against the executors in the County Court of Greensville, in November, 1786; on which judgment no execution had been is

sued.

William Mason (who seems to have been the only acting executor) having died, the surviving executors, and the devisees, in their respective answers, denied any knowlege of the claim of the said Walter Peter, and generally averred that the judgment was obtained in their absence; " but they were informed and had reason to believe the same was unjust.”

The late Chancellor referred the accounts between the plaintiffs and James Mason, deceased, to one of the Commissioners of the Court, directing him "to state and report them, with the proofs thereof, and also an account of the administration of the said James Mason's goods, chattels and credits, distinguishing particularly the debts which, chargeable on his real estate, were paid out of the personal estate." In compliance with this decretal order, Master Commissioner Rose made a report, setting forth the judgment obtained in Greensville Court as the only proof of Walter Peter's claim, and a statement of the administration account, shewing a balance of 537. 14s. 1d. in favour of William Mason, the acting executor; together with a list of debts stated "to have been paid out of the personal estate in satisfaction of debts chargeable on the real estate; to the amount of 7,169. 11s. 3d. except that 1,433. 5s. was credited for real estate sold by the testator's direction in his will."