Franklin a paper under seal, purporting to be a penal bill, and to be 1826. executed by the defendants. The defendants pleaded payAugust. ment, and issue was joined. At a subsequent term, the defendant Franklin, offered an additional plea, which was a general plea of non est factum. This plea was rejected by the Court, and the defendant excepted. The bill of exceptions sets out an affidavit which was offered with the plea, stating, that on the 11th day of November, 1823, the defendant subscribed his name and affixed his seal to a paper then in blank, for the purpose of becoming the surety of Campbell Franklin, (one of the obligors) in a bond to the plaintiff for a sum which was not to exceed $ 600: that at the time he subscribed his name, no sum of money was expressed, and the bond was to have been filled up in a sum not exceeding $ 600; which paper was afterwards filled up with the sum of $1150, without his knowledge, and not in his presence: that on the morning of the second day of the Court, and before the first cause upon the docket had been called, the defendant offered the said plea, upon the following state of facts verified by affidavit, to wit: that when the office judgment was set aside, the defendant's counsel was directed to put in a plea of non est factum; but he was at that moment engaged, and put in the plea of payment, to prevent the confirmation of the office-judgment, intending afterwards and at the same time to add the plea of non est factum. He, however, forgot to do so; nor did it occur to him that he had not done it, until the week before the present Court, and the cause never having been called. The jury found a verdict for the plaintiff on the plea of payment, and the Court gave judgment accordingly. The defendant appealed to the Superior Court, where the judgment of the County Court was affirmed; and the appellant appealed to this Court. Stanard, for the appellant. V. Cox. 1826. August 9. Judge GREEN delivered his opinion, in August, which the other Judges concurred. * Franklin V. Cox. It does not appear upon the bill of exceptions, upon what ground the County Court refused leave to file the plea of non est factum, which was offered. If it was on the ground that it was offered at too late a period, I think the Court erred. It was a plea to the merits, and the delay in offering it was sufficiently accounted for. If the Court proceeded upon the idea, that the affidavit offered with the plea was insufficient, because it did not allege that he did not deliver the paper in question, as his deed, after the blank was filled up with the sum without his presence or knowledge, I think the Court erred in this point also. The declaration alleges a writing obligatory, perfected on the 23d July, 1817. The affidavit states that the defendant sigred and sealed a blank paper on that day, which has been since filled up in his absence, and without his knowledge. If this had been in the form of a special plea, concluding that it was therefore not his deed, it would have been good, without an averment that he had not delivered it after it was filled up; as, if an infant executes a deed, and confirms it by word or act after he comes of age, it is valid ab initio; yet in pleading his infancy, he is not bound to allege that he did not confirm it after he attained his age. So in this The plaintiff must reply that he did confirm it. case, if the plea had been special, and the defendant had really delivered the bond after it was filled up, the plaintiff should have replied that fact, if such a replication would not have been a departure from his declaration. There is a manifest mistake in the affidavit, in respect to the date at which the defendant signed and sealed the paper; a mistake of the writer of the affidavit. Both judgments should be reversed, and the verdict and judgment set aside, and the cause remanded, with direc Absent the PRESIDENT and Judge COALTER. 1826. August. tions to admit the plea of non est factum, upon the mistake in the affidavit, in respect to the date at which the defendant signed and sealed the paper in question, being Franklin All persons materially interested in the subject in controversy ought to be Clark filed a bill in the Chancery Court of Lynchburg, against Long and Crews, stating, that the complainant, to save himself from heavy losses, from debts due to him. from Penn, and from endorsements for the said Penn, took a conveyance of an estate, called the Grove, containing 1000 acres: that the complainant has paid the said Long, as executor of Penn, for the said land, leaving a large unsatisfied balance due to him: that at the time of the conveyance, Long, as executor of Brydie, had a claim for $2000, according to his own mode of settlement, but, the complainant was assured, by the said Penn, that if the account was fairly settled, not one farthing would be due; and he also remarked, that this claim was, originally, an usurious one, and that some sort of lien had been given on the land; but no further information was given on this point. The complainant expressly charged usury in the transaction between Penn and Brydie: that he has paid. the said Long $1341 33 cents, on account of the said incumbrance, but declined paying more, until he could be 1826. August. Clark 1826. furnished with a statement of the amount actually and bonu August. fide due: that the land has been advertised for sale, under the deed of trust executed to Crews, for the benefit of the said Long, to secure the debt aforesaid: that the said deed was not recorded in proper time, &c He, therefore, prayed that the sale might be injoined, &c. V. Long. Long denied the usury, and entered into a detail of circumstances, to prove the legality of the contract with Penn, and of the conveyance of the land, to secure the said debt: that it is true that the said deed was not recorded in proper time; but, he submits it to the Court, whether it is not good against the complainant from the time it was recorded: that if he be mistaken in this, then, he conceives that the complainant admits that Penn gave him notice of the trust deed and bond, and he must, therefore, be considered as a purchaser with notice, &c. The accounts were referred to a Commissioner, a report made, exceptions filed, and evidence taken. The Chancellor decreed, that the injunction should be dissolved, as to a certain sum, and made perpetual, as to the residue. From this decree, the plaintiff appealed. Leigh, for the appellant. Johnson, for the appellee. August 9. Judge CARR. It is the constant object of Courts of Equity to do complete justice, by deciding and settling the rights of all persons interested in the subject of the suit, so as to make the performance of the order of Court perfectly safe to all those who are compelled to obey it, and to prevent future litigation. For this purpose, all persons materially interested ought to be parties, plaintiffs or defendants, however numerous they may be, that a complete decree may be made between them; Mitf. Pl. 144, 145; and though the de pro feet of parties be a ground of demurrer, yet if the party fails to In the case before us, it appears that J. Penn, being indebted to Long, executor of Brydie, executed to trustees a deed of trust conveying his tract of land called the Grove, to secure the payment of the said debt. The bill states, that Penn afterwards sold and conveyed this land, (or the equity of redemption, rather) to the plaintiff, Clark; but even of this, there is no evidence in the record. The deed, said to be executed to Clark, is not filed; nor is there any party before the Court, so authorised to waive the production of that deed, as to bind Penn by the waiver. But, taking it for granted, that the deed actually exists, the plaintiff is the purchaser of an equity of redemption, and files his bill to redeem, impeaching the consideration of the 1826. August. Clark V. Long. |