1818.

OCTOBER, “larged, and the Commonwealth's Writ of habere facias “possessionem awarded the plaintiff, to cause him to have "possession of his term, so to be enlarged, in the prem"ises in the said lease mentioned."

Noland

V.

Seekri.ht lessee of Cromwell.

The Rule being served, (in proof of which an affidavit was filed,) was afterwards enlarged from time to time, for reasons appearing to the Court, until the 9th of May 1815, when it was made absolute; leave was granted to enlarge the demise laid in the declaration, by inserting the word thirty, in the place of twenty, in the said declaration, so as to make the term of the demise thirty one, itstead of twenty one years; and a Writ of habere facias possessionem was awarded, to cause the plaintiff to have possession of his term so enlarged.

To this Order the defendant obtained a Writ of Supersedeas from a Judge of this Court; stating in his Petition the following reasons; 1st, because the said Superior Court had no power after judgment to alter the Record, even if the Judgment had been entered in that Court; there being no clerical mistake, or any thing which should bring the case within the operation of the Acts of Jeofails:-2d, that, if even the Court had power to permit such alteration after judgment in the same Court, there was no such power when the judgment had been obtained in another Court: and 3d, because, as more than a year elapsed from the judgment, (the District Courts having ceased to exist much more than a year before the said Rule was obtained,) no writ of possession could be sued out without a scire facias first issuing.

Wickham for the plaintiff in error.

Stanard contra. The doctrine that a Court of law will not take notice of an Injunction has been exploded in England. Here the execution of the Writ of habere facias possessionem was intercepted by Injunction, and twelve months did not elapse, from the time when the party was at liberty to take out the Writ, before it was actually taken out. (1)

(1) The Court of Appeals affirmed, in January 1814, the de. cree dissolving the Injunction and dismissing the Bill. See 4 Munf. 157.

1818.

Wickham admitted that where the party is delayed by OCTOBER, Injunction, he is not put to his scire facias.(2)

Stanard, to shew the right of the Court to enlarge the term, cited Hunter v. Fairfax's devisee, 1 Munf. 218238, and Vicars v. Haydon, Cowp. 841; in both which cases, the appellate Court itself changed the record by enlarging the term. The demise in Ejectment is merely fictitious: it is a remedy invented to try the title; is under the control of the Court, and may be modelled so as to accomplish the purposes of justice. (a) October 16th, 1818, the Court affirmed the Order in question.

(2) Note. See argument in Gray's admx. v. Berryman, 4 Munf. 183-4.

Noland

V.

Seekright lessee of

(a) 3 Burr, 1295.

Greshams against Gresham and others.

Decided, Oct. 16th, 1818.

1. A tes

year 1803,

fol- devised the

residue of

TALIAFERRO CARLTON, by his last Will, dated July 9th, and admitted to probate December 12th, 1803, tator, in the (after several bequests to other persons,) devised as lows: "Then the balance of my estate I give to "brother Isaac; in case he dies without issue, to "equally divided between my uncle John "children; to wit;" here inserting their names, adding any words of perpetuity.

my his estate to be his brother

Gresham's

Isaac; in case he died

without without issue, to be equally divided be

tween his

uncle's chil

without ud

Isaac Carlton (who died without issue, in October 1806,) by his Will, bequeathed several slaves which he dren; (namheld under the first mentioned Will, to Anthony Gresham ing them:) and others, who thereupon brought suit for them, in ding any Chancery, against John Gresham administrator of Talia- words of perferro Carlton, and Benoni Gresham and others his chil- limitation dren, who defended the suit by him as their father and guardian.

petuity This

over was

good, and took effect,

upon the

Chancellor TAYLOR was of opinion that the limitation death of over, after the devise to Isaac Carlton, in the Will of Isaac withTaliaferro Carlton, was void, “being after an indefinite the time of “failure of issue." He therefore decreed according to his death.

out issue at

OCTOBER, the prayer of the Bill: from which decree the defendants appealed.

1818.

Greshams

v.

Gresham and others.

Wickham for the appellants.

Stanard for the appellee.

October 16th 1818, Judge ROANE pronounced the Court's opinion, that the Decree be reversed, and the bill dismissed, on the authority of the case of Timberlake v. Graves, and other cases in this Court. Jes Ante 174. Post. 301, +456 ; Didlake & Hoone Gibm. 194.

Decided, Oct. 19th, 1818,

1. Though

purchaser

Fleet against Hawkins.

ON the 5th of October 1807, Fleet agreed to sell Harof a tract of kins a tract of land, supposed to contain three hundred land agree to and seventy acres, at fifteen dollars per acre, and put him pay so much by the acre, in possession, according to contract, about the end of yet if he also the same year. The land was held, partly, under a Pa

agree to

take it by the tent for 352 acres; the residue was a small tract, purPatent, or chased of one Hoffman, which afterwards was surveyed

survey al

ready made, and found to contain upwards of nineteen acres.

as fixing the

number of

out any

cealment, of misrepresentation, on

himself the

In pursuance of this agreement, a conveyance was acres in the made on the 8th of August 1808, stating the contents to tract, (withbe (as mentioned in the Patent and Survey of the small fraud, con- tract,) three hundred and seventy two acres “more or less;" and, on the 12th of September in the same year, the part of Hawkins, referring to the said conveyance, mortgaged the vendor,) the land to Fleet for payment of the purchase money. he thereby takes upon He afterwards paid it off without objection; but, in the year 1811, filed a bill in the Superior Court of Chanquantity; by cery for the Williamsburg District, to recover compenwhich he might be sation for an alledged deficiency in the number of acres; gainer or stating that Fleet had defrauded him, by saying it was loser; and therefore is unnecessary to survey the larger tract, as it had been not entitled already surveyed; though he (Fleet) knew it did not pensation for contain the quantity called for; that the Deed containing a deficiency. the words more or less" was executed by Fleet, and never seen by him (Hawkins,) until after it was record

risk as to

to any com

See

Jolliffe v.

Hite, 1 Call 329; Hull v.

Cunningham's ex'or. 1 Munf. 336.

1818.

ed. He therefore prayed that a part of the purchase OCTOBER, money be refunded. The bill stated also a fraud, in not sowing wheat, delivering fodder, &c.

The answer denied all fraud, and averred that the respondent held the larger tract by Patent for upwards of 352 acres; that, at the date of the contract, he offered the plaintiff his election to take it according to the survey referred to in the Patent, or to have it surveyed; and the plaintiff chose to take it according to the Patent; believing, as he said, that he should be a gainer thereby.

Sundry depositions were taken, proving that Hawkins made his election, at the time of the contract, to take the larger tract by the old survey; that he was privy to the execution of Fleet's deed to him, and accepted it without any objection. There was no proof of any fraud, concealment, or misrepresentation, on the part of the defendant.

A survey was made by the Court's order, and returned; according to which, the whole tract contained only three hundred and thirty eight acres.

The cause being removed to the Court of Chancery holden in Richmond, Chancellor TAYLOR, on the 26th of January 1815, decreed as follows. "The Court, ac"quitting the defendant of any intention to perpetrate a "fraud on the plaintiff, in the contract which is the sub"ject of controversy, but being nevertheless of opinion "that the sale of land made in this case by the defend"ant to the plaintiff, was a sale by the acre, and not a “sale in gross, and that, consequently, if the defendant "hath received of the plaintiff payment for a greater "number of acres than he did in fact convey to him, "he holds so much money of the plaintiff's, which the "defendant ought in equity and good conscience to re"fund; and it appearing, by a comparison of the deeds "with the report of the survey made in this cause, that "the lands so sold by the defendant to the plaintiff do "in fact fall short of the estimated quantity by thirty "four acres, for which the defendant by his answer ac"knowledges himself to have received payment accord"ing to the terms of the mortgage exhibited in the

Fleet

Hawkins.

OCTOBER, 1818

Fleet

V.

Hawkins.

"cause; that is to say, on or before the 1st of January 1810, the day of payment of the last instalment; doth "accordingly adjudge, order and decree, that the de"fendant pay to the plaintiff five hundred and ten dol"lars, with interest thereon from the said 1st of Jan"uary 1810, 'till payment, together with the costs of "this suit; and that the Bill, so far as it seeks other "relief from the defendant, be dismissed." From which decree, the defendant appealed.

Wickham for the appellant.

Upshur and Stanard for the appellee.

This Court's opinion was delivered by Judge ROANE, as follows.

The Court is of opinion that, altho' the original proposition for the sale of the land in question, was one of a sale by the acre, at the rate of $15 for ch acre contained in the two tracts proposed to be sold, the contract assumed a different character as to the larger tract, by the agreement of the parties to refer to the patent as fixing the quantity therein contained. By this agreement, the right to survey that tract was renounced by the appellee; and, as to it, it became a contract of hazard, by which he might have gained. That agreement is express to pay for that tract, as much money as would result from multiplying the number of acres mentioned in the patent by the price per acre originally proposed to be given; and is not different from one in which the sum had been actually extended, and in terms promised to be paid. It was entirely competent to the appellee to waive another survey, and abide by the one already made; and it is a risque by which it is proved he expected to gain. On the part of the appellant, his conduct was entirely fair. He represented nothing but what he believed to be true, and which he had good grounds for so believing; and he fairly exhibited to the appellee his survey and patent, as the grounds and foundation of his belief, as to the number of acres contained in the larger tract. With a full knowledge of all the circumstances, and as much knowledge, as to the quantity, as the appellant himself is shewn to have had, the appellee entered into the contract; and