1817. Legrand V. JANUARY, provides (a) that private Acts of Assembly may be given in evidence, without pleading them specially. In Hunter v. Fairfax's devisee, (b) this Court went on the principle, that they could look into and decide upon a private Act of Assemand Trustees of bly, though not part of the Record. (1) The Act of 1794, Hampden Sid- ch. 37, shews the transfer to the College of the Title from the ney College. Commonwealth. The President (a) 1 R. C. ch. 76. sect. 30. p. 112. Objections to the identity of the land are out of the question. Mr. Wickham says, that payment of purchase money, and (b) 1 Munf. 218. delivery of a Deed from the College ought to be co-tempora neous acts. I should agree to this, were it not for the circumstance, that Legrand had obtained a Grant for part of the Land. The Chancellor very properly denied his having a right to do this to the injury of his title, derived from the College. It never could have been understood, that they meant to indemnify him against defects, that he could make in the title. A release from him was essentially necessary to enable the College to make him a title. Wickham in reply. Every position that I have taken in argument was taken in the Answer; in which, however, the defendant gives a sufficient reason for not particularly setting out defects in the title: viz., because the title-papers were not before him. If parties contract under a mistake as to title, will not the Court give relief? Where is the immorality in our strengthen ing our title by getting a Grant from the Commonwealth? Surely we ought to be allowed our trouble and expenses; (2) but the Chancellor has allowed us nothing. The College, being plaintiffs in Equity, are clearly bound to do complete equity to the defendant, before the Court will de cree specific performance. It was their duty to produce to him their title papers. The Act for incorporating the College is not inserted in the Record, and therefore cannot be regarded by the Court. I (1) Note. Judge ROANE observed to Mr. Leigh, that, in that case, he considered the Act of Compromise as a letter to the Court, directing Judgment to be entered up; not as a part of the Record, but as a matter in pays. Mr. Leigh replied, that he believed it would be found, that the point was settled by that case, that a private Act may be relied upon, though not in the Record. (2) Note. See Hull v. Cunningham's Executor, 1 Munf. 330 and 336. JANUARY, 1817. Legrand understand the rule to be that private Acts of Assembly may be given in evidence without pleading; but they must be given in evidence as facts: they are not matters of law, judicially to be taken notice of by the Court. The doctrine, that the v. The President Court is bound to take notice of every private Act, that has and Trustees of been passed since the foundation of the Commonwealth, is Hampden Sidney College. fraught with such mischievous consequences, that I cannot think it can obtain. As the Record now stands, I deny that these Acts were given in evidence to the Chancellor. If they were, it should either have been stated in the Decree, or they should have been spread on the Record in extenso. This Court cannot receive any new evidence, which was not before the Court below. Whether Legrand got something or nothing by the Grant, the Release was unnecessary. All, that is wanted on his part, is a conveyance, from the College, of their title, which, added to his own under the Grant, will make his title complete. Why was he not to take possession? He does not seek to disaffirm the contract. This Court has often decided, that taking possession does not preclude the party from getting relief on the ground of defect of title. Such was the case of Beverly v. Lawson's heirs, 3 Munf. 317. It appears by one of the Inquisitions of Escheat, that part of the land was sold for taxes. For the deficiency, so occasioned, the Appellant ought to be compensated by the Decree. (1) The counsel for the Appellees afterwards obtained a certifi cate from Chancellor TAYLOR, in these words: "As to what દ passed on the trial of this case, before me, I cannot undertake "to say. But I can state, with great certainty, that the Court "of Chancery never dispensed with any thing, called for by "the pleadings, unless by consent of parties. All the counsel "know, and my side-table now exhibits the fact, that many cases are now resting on it under such circumstances; and, "I can have no doubt, as the answer in the case puts the au (1) Note. This exception was not taken in the Answer; and indeed appears to be unfounded under the agreement; for by the Inquests, the land sold for taxes was expressly excepted as not escheated; and, by the agreement, the defendant was to have only such of the lands as were "escheated." JANUARY, 1817. Legrand V. "thority of the Trustees to sell, in issue, but the Act of incor"poration was either produced, or the necessity of it was waiv "ed by the opposing counsel. I feel so confident of it, that, if "I were commanded, as the Judge of my Court, to certify a and Trustees of more complete record under a certiorari, I should have inHampden Sid-corporated in it a copy of the charter, as omitted, under the ney College. “head of “sundry exhibits” The President (Signed) "January Term, 1817." CREED TAYLOR. In consequence of this certificate, and by consent of the parties by counsel, the Court inspected the Act of Assembly of May, 1783, ch. 172, and considered it as a part of the Record. January 21st, 1817. Judge ROANE pronounced the Court's opinion as follows: The Court, in consequence of a certificate from the Chancellor, filed among the papers, have inspected the Act of May, 1783, ch. 172, and considers it a part of the Record; (1) the necessity of a certiorari being waived by counsel; and so considering it, is of opinion that there is no error in the said Decree, which is therefore affirmed. (1) Note by the Reporter. The Court seems not to have considered it neces sary to make the Act of 1794, ch. 37, a part of the Record, because the donation of the escheated lands from the Commonwealth to the College was not put in issue by the Answer, as was the right of the Trustees to sell. Indeed, the fact of that donation might well be considered, under the circumstances of the case, as admitted by the defendant. January 25th, 1817. 1. Quære. Lawrence against Swann and others. THE Appellees filed a Bill of Injunction, in the late High Whether an Ex Court of Chancery, against the Appellant and William O. Win ecution can le gally be levied on property, the possession of which has passed from the debtor, and remained in a third person, for more than five years, in pursuance of a Deed said to be fraudulent, but regularly recorded, and importing on its face to be for valuable consideration; before such Deed has been impeached and convicted of fraud by the Decree of a Court of competent jurisdiction? 2. Depositions taken in a suit to perpetuate testimony are not to be read as evidence in a subsequent suit, unless it appear that the witnesses are dead, or otherwise out of the power of the Court. Lawrence Swann and others. ston, to prevent the sale of certain slaves, on whom an execu- JANUARY, tion, in favour of the said Winston against John Syme, had been 1817. levied by the Appellant, as Deputy Sheriff of Hanover County. The ground of equity relied on was, that the plaintiffs were entitled to those slaves, and had held them in possession more than five years, by virtue of Deeds from Syme, duly recorded. The defendants controverted their title, alleging that the deeds in question were fraudulent. Many depositions were taken on both sides, and sundry exhibits filed. Chancellor WYTHE perpetuated the Injunction; from which Decree this appeal was taken. The case was argued here, at great length, on the 7th, 8th, 9th, 10th and 12th days of February, 1816; but, as the points in dispute were not determined by the Court, the arguments of counsel may with propriety be omitted. January, 25th, 1817. Judge BROOKE pronounced the Court's opinion. "The Court, (not intending to decide that an Execution ought not to be served on property, the possession of which has passed from the debtor, and remained in a third person, for more than five years, in pursuance of a Deed, regularly recorded, and importing on its face to be for a valuable consideration, before such Deed has been impeached and convicted of fraud by the Decree of a Court of competent jurisdiction,) is constrained under the circumstances of the case before it, to withhold its opinion, and also its present impressions, on the merits; as well because Martha Hoops Syme, and the administrator de bonis non of Willis Riddick, whose interests are involved, are not parties to the suit, as because the whole of the case is not fully before the Court. Only one of the deeds to Warden is to be found in the Record of the suit of Syme v. Syme, referred to in the Answer, of Sarah Syme in this suit; and the object of that controversy being to perpetuate testimony, and it not appearing, in this case, that the witnesses, therein examined, were dead, or otherwise out of the power of the Court of Chancery, the question, whether their depositions (in that event) ought to be read, is not regularly presented to the Court. But for these difficulties, the Court, (though strongly 1817. Lawrence Swann and others. JANUARY, inclined to the opinion that it would have been more regular to have impeached the deeds in this case by a suit for that object, than to have levied an execution on the property claimed under them,) might have yielded to the desire of the parties, to put an end to a complicated and expensive suit. The Court, therefore, on these grounds, and because the delay will be not much increased by the institution of a suit, such as before mentioned, in which the party, if so advised, may contest the validity of the title of the Appellees, (as it regards creditors, or others, who may be made defendants to such suit,) not only to the slaves now in question, but to any other property, which may have belonged to John Syme the debtor, and which may be claimed by such defendants, so as to put an end to all farther controversy, affirms the Decree of the Chancellor, but without prejudice to any such suit as before mentioned." Decided January 29th, 1817. 1. A Testa Bolling against Bolling and others. ROBERT BOLLING, of the County of Dinwiddie, by his last tor, after devis Will, dated January 30th, 1775, and proved in Court in March ing certain lands and other pro 1777, disposed of his property as follows: perty to his Wife, during her In the first place, he directed his just debts and funeral exdirected, penses to be expeditiously and honourably paid by his Execu life, "that she should be furnished du tors. Next, he "lent to his loving Wife Mary, during her ring her life, natural life, the land and plantation, on which he then lived, out of his whole estate,with what" with all his lands adjoining or contiguous thereto, including ever provision and necessaries that, which he purchased of John Ravenscroft, his several lots of every kind she might have occasion for, to support herself and family, in the same manner he had always lived, or in any other manner she might think proper Quare, whether, under this devise, she had not a life interest in certain lands, devised to one of his sons, in general terms, without specifying, when that son was to be put into possession? and a right to convert the whole profits thereof to the support of herself and the children generally during her life? 2. A Devisee is, in general, bound to take notice of the contents of the Will, under which he received, when of full age, certain lands and other property from the Executors; such Will having then been proved and recorded. 3. A Court of Equity ought not to direct an account to be taken, after a great lapse of time. and after acts of acquiescence, by the party demanding it, in a construction of his rights, which, if correct, would render such account unnecessary. See Randolph's Executor v. Randolph's Executors and others, 1 H. & M. 181. |