APRIL, 1810. Mayo V. self a bona fide purchaser of the bond, for a valuable consideration, "expressly denying that, at the time the said bond was assigned to him, or at any time before, he knew of any dispute or Giles's Adm'r. fraud being practised by which the complainant was induced or drawn in to execute the said bond." He contended, therefore, that, having the legal right to the debt, and equal equity with the complainant, a court of equity ought not to deprive him of the benefit of his judgment at law. The testimony in support of the bill consisted, 1. Of Sydnor's written agreement dated the 8th of October, 1790, in the following words: "Having this day received Colonel John Mayo's bond, ⚫ on account of Francis Gaddy, for 84l. 7s. 11d. and there being some doubts with Mr. Mayo whether he owes Mr. Gaddy that sum or not, I therefore hereby oblige myself, provided Mr. Mayo, in one month after this date, should produce proper vouchers to satisfy me that he has and is obliged to pay John Swann 13l. 15s. on account of Mr. Gaddy, independent to an order drawn in favour of John Swann on Mr. Mayo by Mr. Gaddy, and provided Mr. Gaddy should not within one month after date produce to Mr. Mayo eleven muskets which were delivered him to clean, that the price of the said muskets and the 137. 15s. shall be fixed to the credit of this bond executed by Mr. Mayo agreeable to the award of Mr. John Hicks, William Booker, William Foushee, and Joseph Higbee. Witness, my hand, F. Sydnor." 2. A letter from Sydnor, dated the 9th of March, 1791, mentioning that necessity had compelled him to pass the bond to Giles; which he hoped the complainant would not be displeased at; that Giles had promised," if the complainant would fix him upon a certainty of receiving one half the money in a short time, he would wait nine, or perhaps twelve months for the balance;" that should the complainant, on making particular inquiry, find the bond was given for rather too large a sum, the strictest honour should guide him (Sydnor) to fix the overplus in his hands to discharge it, as he conceived it not worth while to alter the bond for so small a sum, as perhaps the complainant could rely on his punctuality; and that he "hoped he would accommodate the matter as above proposed." 3. A deposition of a certain Samuel Fones, proving a verbal declaration by Sydnor, "that he had long been at a loss what to do respecting a bond he had obtained of Colonel Mayo, and passed to Knowles Giles, who had then sued on said bond, which would probably be carried to a Court APRIL, 1810. Mayo V. of Chancery, where he the said Sydnor might be placed in a disagreeable predicament, as Gaddy had cancelled the bargain by which he obtained the bond;" that he had previously contracted with Gaddy for the sale of part of a lot in the City of Giles'sAdm'r. Richmond, and that by selling the same ground to the said Jones, he should "destroy the foundation of his claim against Gaddy, which had been his justification in the receipt of said bond; but, as he should never be able to get any thing out of Gaddy, he had determined to sell, and execute a deed for, the ground, to Jones; which he proceeded to do." On the other side, the deposition of Alexander King proved a promise by Mayo, (when applied to, by the deponent, on behalf of Giles, for payment of the bond,) that he would pay "the amount of the bond to Giles." The judgment at law was by confession; and, "by consent of the parties, fourteen days were al lowed the complainant to file his bill of injunction in the Clerk's office." In August, 1793, a motion to dissolve the injunction was overruled; and in November, 1796, Giles having died, the suit was revived against his administrator. May 8th, 1800, the cause came on, by consent of parties, to be heard in chief, when the injunction was dissolved, and the bill dismissed with costs. On an appeal to the Superior Court of Chancery, this decree was affirmed by the late Chancellor, Wythe; and thereupon Mayo appealed to this Court, April 21st, 1810. The Judges delivered their opinions. Judge TUCKER, (after stating the case.) The original agreement between Mayo and Sydnor, referred to in the bill, whereby it was stipulated that, if Gaddy did not within one month produce the eleven muskets delivered him to clean, that Mayo should have credit for their value, is an admission on the part of Sydnor that Mayo should not be driven to his action to obtain compensation for them, if not delivered, but that the value there of should be admitted as an equitable discount, or set-off against the bond. I call it an equitable discount, because I do not know in what manner he could have had the benefit of it at law; the value of the muskets not being ascertained in the agreement. And indeed, the parties seem to have admitted this, the one APRIL, 1810. Mayo V. by confessing a judgment on the bond, and the other by consenting that the former should be allowed fourteen days to file his bill of injunction in the Clerk's office. But, were it not so, the Giles's Adm'r. circumstances of fraud and imposition, charged in the bill, in my opinion, are amply sufficient to give jurisdiction to the Court of Chancery, in this case: nor could a demurrer, for want of equity, hold. As to the merits. In the case of Norton v. Rose, (1 Wash. 233.) it was the unanimous opinion of the Court, (in the absence of Judge PENDLETON and Judge FLEMING,) that an assignee of a bond or obligation takes the same subject to ALL THE equity of the obligor; and this, as I understand the Judges, whether the assignce at the time of the assignment have notice of such equity, or not. The question appears to have been fully discussed both by the bar, and by the bench, and therefore ought not now to be disturbed. But I am so far from feeling a disposition to do so, that I accord entirely with the opinions thus delivered. The only question, then, is, has the appellant brought his case within the rule as there laid down? From the agreement, as before stated, and a letter of March 9, 1791, from Sydnor to Mayo, and the deposition of Samuel Jones, I am very much disposed to believe that Mr. Mayo was probably entitled to the relief he seeks But the whole, taken together, does not in my opinion support the allegations of his bill. Why no process was ever issued against Sydnor, to compel him to answer the charges against him; or why Gaddy was neither made a party, nor a witness in the causes, it is impossible for this Court to discover. While I feel from the evidence before me a strong suspicion that other and better evidence might have been adduced, in support of the bill, I am constrained to say that the appellant has not proved his case, as alleged in the bill, or as it appears probable from some parts of Samuel Jones's deposition. I therefore think the decree must be affirmed. But I conceive it ought to be, without prejudice to any future bill against Sydnor which he may be advised to bring for relief on this subject. It would indeed be my wish only to affirm so much of the decree as dissolves the injunction, and allows the appellee to take the benefit of his judgment at law, and remand the cause for further proceedings, if the plaintiff. should be so advised. But I doubt the power of this Court to make such a decree where the cause, with all its imperfections, on the part of the plaintiff, upon its head, after being in Court full seven years, was brought on by consent of parties, to be heard in chief upon the bill, answer, exhibits and depositions, in this record. In the opinion I have given I mean not, in the most distant manner, to disturb or weaken the principles established in the case of Norton v. Rose, in which I most heartily concur. Judge ROANE concurred in affirming the decree. Judge FLEMING was of the same opinion; observing, that, whatever equity Mayo might have against Sydnor, he had none against Giles, who was a fair purchaser of the bond, and to whom Mayo had made a promise of payment. Decree unanimously AFFIRMED. APRIL, 1810. Mayo V. Giles's Adm'r. Wyatt against Sadler's Heirs. Friday, April 27. is to collect from the whole ON the trial of an action of ejectment, in the District Court 1. In construing wills, the of King and Queen, (on behalf of John Den, lessee of Richard cardinal rule Wyatt, against the widow and heirs of John Sadler, deceased,) the intention the lessor of the plaintiff proved that he was the eldest son of Ri- of the testator chard Wyatt, who died in the year 1768, seised in fee of the will taken toland in the declaration mentioned; that, being so seised, the out regard to gether, withsaid Richard Wyatt, the elder, had made and published his last any thing techwill; in which were the following clauses, after the usual pre- particularform amble; viz. “and, as to what worldly goods it hath pleased God if such intention be lawful, to give me, I leave and bequeath as followeth: Item, my will (as not crea and desire is, that my beloved wife Elizabeth Wyatt shall have ting perpetuiand enjoy all my land during her natural life. Item, after the like,) full elfect ought to decease of my wife, I give and bequeath to my sons Richard be given to it nical, or any of words; and ties, or the by the Courts. 2. A testator (who died in the year 1768) expressed himself, in the introductory part of his will thus: "and as to what worldly goods it hath pleased God to give me, I leave and bequeath as followeth." In the next clause, he "wills and desires that his wife should enjoy all his land during her life, and after her decease gives and bequeaths to his two sons, all his land, to be equally divided between them; his still, likewise, to be between them, to distil for their own use, and after, to his eldest son." A fee simple estate in his share of the land passed to the younger son. VOL. I 5 Y APRIL, 1810. V. and William Wyatt, all my land, to be equally divided between them, Dragon Swamp and all, my still, likewise, to be beWyatt tween them, to distil for them for their own use, and after, Sadler's heirs, to my son Richard. Item, my will and desire is, that my lot at West Point shall be sold, and Mr. Stephen Bingham to have the refusal of it." There were other bequests of personal estate, &c. The lessor of the plaintiff farther proved that William Wyatt, the younger son of said testator, departed this life a year or two before the institution of this ejectment; that the widow was also dead at the time of bringing the said ejectment; and the defendants, claiming under the said William Wyatt the land in the declaration mentioned, which had been allotted to him on partition made between Richard and him, moved the Court to instruct the Jury that, under the said will, a fee passed to William, on the death of the widow, in that part of the land devised to him; which the Court accordingly did; to which opinion of the Court the plaintiff filed a bill of exceptions. Verdict and judgment for the appellants; and appeal. (a) 1 Call, 127. Wickham, for the appellant. The abstract question submitted by this record is, whether a fee passed to William Wyatt under a will, in which there are no words of perpetuity, and no residuary clause. This depends upon authority; and certainly, according to the old adjudications, the remainder to Richard and William was for life only; the reversion in fee vesting in Richard, as heir at law. None of the modern precedents have gone so far as to make a devise like this carry a fee. In Davies v. Miller,(a) the word estate was transposed from different parts of the will, and coupled with the devise, so as to give a fee: but here the word "estate" is not used; but "goods" only. Warden, contra, relied on Davies v. Miller as an authority in point. The words "as to what worldly goods," &c. coupled with the clause immediately ensuing, in which lands are devised, evidently shew that the testator meant the same thing as if he had said "all my estate.” From the whole will, it is clear, that he did not intend to die intestate as to any part of his property. Wirt, on the same side, quoted 8 Viner, 208. pl. 23. 1 Swin |