Dec. Term, 1846. Laughery v. Laughery and others. IN BANK. ant first established her right to alimony, and then filed her bill to avoid the fraudulent deed. Such being the case, by connecting the two subjects in one bill, he cannot be defrauded of any of his rights. He has the same right of appeal, as if there had been no other defendant than himself in the case. The next question is as to how much of the case is removed from the Court of Common Pleas by the appeal. Does it bring up the question of divorce? Is the decree for alimony vacated? Formerly it was held that where there was more than one defendant, the appeal of one removed the case as to all. But, by the 6th section of the act of March 12, 1845, to amend the act directing the mode of proceeding in chancery, it is provided that, "any party to a suit in chancery may appeal his 'separate part of the suit, in which case the Court, from which 'the appeal is taken, shall direct the amount and conditions of 'the bond in appeal." The appeal, in the case under consideration, was taken and perfected by the defendant, William Laughery. It was of no consequence to him whether there was a divorce or decree for alimony. The only part of the case and the decree which affected him, or in which he had any interest, was that which decreed that the deed made to him was fraudulent, and that the alimony should be charged upon the land conveyed by that deed. By the appeal, this part of the case, and this alone, is brought before this Court. The decree for alimony remains good as to Charles Laughery; but whether it shall be a charge upon the land, or whether the conveyance to William Laughery was fraudulent, are proper subjects for the consideration of this Court. The case, then, in the aspect in which it presents itself to this Court, is one in which a married woman, in her own name, and in her own right, is prosecuting a suit in chancery to set aside a conveyance, executed by her husband and herself, to defraud herself, and to prevent her from enforcing a demand against her husband. Now, there are cases in which a court of chancery will permit a married woman to prosecute a case in her own name, or by some friend, where her rights are ad Laughery v. Laughery and others. Dec. Term. 1846. verse to those of her husband, and where such proceedings are IN BANK. necessary for the ends of justice. Whether this is a case of that character, is perhaps doubtful. But admitting that the case can be sustained, then a question arises whether in fact there was any fraud in the conveyance, as charged in the bill. It seems that Charles Laughery and his wife did not live pleasantly together, and she at length came to the determination that she would continue with him no longer. The land in controversy had been conveyed to Charles by procurement of William Laughery, his father, and was in the nature of an advancement. The complainant having determined to leave her husband, proposed that he should restore to her all the personal property which he received by her at the marriage, and also the use of ten acres of land which she claimed as her own. At length a division of property was agreed upon, and both parties were to be restored to their rights, as they existed at the time of the marriage. This was carried into effect and as a part of the arrangement, the deed complained of was executed. In making this arrangement, she seems to have been more active than her husband, and all her propositions were complied with. There was no concealment no false representations-nothing which has the appearance of fraud. William Laughery had given the land to his son for no other consideration than that of natural affection; and the son and his wife, being about to separate, conveyed it back to the father. In this state of the case, it seems to us that the complainant comes before the Court under such circumstances that she is not entitled to the relief she seeks as against the defendant, and the bill is therefore dismissed, but without costs. IN BANK. Dec. Term, 1846. Lessee of Barton and others v. The Heirs of Morris. LESSEE OF CHARLOTTE BARTON and others vs. THE A Defendant in possession over twenty-one years, under a contract of purchase which has been fully complied with, cannot be ousted in ejectment by the holder of a naked legal title, having no right of possession. A Trustee who conveys a naked legal title, under a defective power, by order of the cestui que trust, with the usual personal covenants of warranty, and whose conveyance passes no title by reason of the defects in his power, is, by his covenants, estopped from setting up title against his covenantee, acquired by subsequent conveyances, vesting in him the naked legal title. The 2d section of the act passed January 29, 1833, amendatory of the act providing for the acknowledgment of deeds, &c., is constitutional and of binding force, notwithstanding its retrospective operation. A deed conveying "all right, title, interest or claim, to any land descended to me from A or B," is sufficiently descriptive to pass title to any legal or equitable estate which the grantor inherited from A or B. The intention being plain, parol evidence is admissible to identify the land, but not to prove an intention different from the terms of the deed. A Magistrate's certificate of the acknowledgment of a married woman is sufficient, if it show a substantial compliance with the statute. A party to a fraudulent conveyance cannot set up his fraud to avoid the conveyance, nor can his grantee or his heir be heard to aver the existence of such fraud to prevent the operation of the doctrine of estoppel. THIS is an ACTION OF EJECTMENT, reserved in the County of CLERMONT. The declaration counts on the several demises of John Jolliffe and of Charlotte Barton, under whom he claims title, and on the joint devise of both, &c. The land in controversy is part of F. O. Neil's survey, No. 913, of which the plaintiffs' lessors claim nine undivided seventeenth parts of 99 acres. The defendants, or heirs of Thomas Morris, claim title to the whole interest in the land. Or if they have not the title, they then claim that they are in possession, with a legal right to maintain it, as against the plaintiffs' lessors. Both parties claim title under Amos Haines. To sustain the action, the plaintiffs' lessors prove, first, that on the 1st September, 1817, Amos Haines, then the legal owner of the land, by title bond sold the same to Edward Bar Lessee of Barton and others v. The Heirs of Morris. , Dec. Term, 1846. ton, sen.; that Barton went into possession at that time, and IN BANK. remained in possession until his death, in the year 1836. On the day of purchase he paid $1100, by note of Mr. Wilson, and was to pay the balance in fifteen months, from 1st May, 1818; and it is shown that, on the 30th May, 1823, the balance of the purchase money was paid to James T. Johnston, administrator of Amos Haines, deceased, and, on proving the names of the heirs of Barton, he claims he shows a right to recover. To defeat this title by descent, the defendant shows that, when the balance of the purchase money was paid, Johnston, who was then administrator, and who was authorized to close up the estate and to sell the property, by defective powers of attorney as it appears, deeded the title, by direction of Edward Barton, sen., to Edward Barton, jr., by deed dated the 30th May, 1823. This deed is signed by James T. Johnston, attorney in fact, for the heirs of Amos Haines. The deed contains the names of J. T. and Mary Johnston, as grantors, and who, for the consideration of $670.50, grant, bargain and sell the land in controversy, by metes and bounds, and covenant that they are the true owners of the land; that they have authority to convey in fee simple, and that they will warrant and forever defend the title against all claims whatsoever. › without issue; and Canby, Noah Haines, This deed was duly executed and acknowledged before a justice of the peace, in May, 1823, and recorded on the 19th of November, 1823. Defendants also proved, that Amos Haines died in 1819, leaving Lafayette Haines, his sole heir, and his widow, Mary, who intermarried with James T. Johnston. That Lafayette Haines died in that Margaret Canby, wife of Joseph Nathan Haines, Robert Haines, and Mary McKay, were the heirs of Lafayette Haines, in whom the naked legal title vested at his death. Deeds, with covenants of warranty against the grantors of those claiming under them, were executed to James T. Johnston, in 1825, by Robert, Nathan, and Noah Haines, and also by Margaret and Joseph Canby. That Edward Bar Lessee of Barton and others v. The Heirs of Morris. IN BANK. ton, junior, claimed all the equity in the land after the deed Dec. Term, 1846. was executed in 1823, and that in 1837 he executed a deed to Thomas Morris, the ancestor of the defendant, in due form, conveying to him the title which he had acquired. و The plaintiffs' lessors, to rebut this, offered proof that, since the conveyances by the heirs of Lafayette Haines to James T. Johnston, the plaintiffs' lessors have procured them to execute conveyances, by which any title that remained in the heirs of Edward Barton, senior, and of Amos and Lafayette Haines, is claimed to be vested in the plaintiffs' lessors. Sundry records are also in evidence, which, with the other facts, will be found noticed in the opinion of the Court. John Jolliffe, for Plaintiffs, First: We trace, by direct evidence, the possession of the heirs of Edward Barton, senior, and of the widow, down to May, 1836. Unless there be proof to the contrary, the law will presume that the possession continued until the twenty-one years were fulfilled. Bayard's Lessee v. Colefax et al., 4 Wash. C. C. Rep. 41; Phil. Ev. by Cow. and Hill, 295, and cases there collated; 1 Stark. Ev. 36; Greenl. Ev. 46; Lewis v. Paine, 4 Wend. Rep. 423, 529; Miller's Lessee v. Porter, 4 Wend. Rep. 672. Second: "Where a parent, having a possessory title to land, 'dies in possession, leaving several children, his heirs at law, 'who succeed to such possession, it is not competent for one or 'more of such heirs, who have obtained the exclusive posses'sion of the whole premises, to defeat a recovery by the coheirs of their proportional parts or shares, by setting up a title acquired from the owners of the land. To avail themselves ' of such title, they must first surrender possession to the co' heirs and then bring ejectment." Philan et ux. v. Kelly, 24 Wend. Rep. 389; see, also, 7 Cowen 637; 3 Adol. and Ellis 188; 2 Ibid.; 5 Johns. Ch. Rep. 407. |