Volume 4 — Maryland Chancery

[The bill was filed, to be relieved from the payment of a judgment in favor of A. Y. Zane against the complainant, and one Nicholas E. Watkins, upon the allegation that after the same was rendered, the complainant had performed professional services for the defendant, and one William McNeir, the latter’s father-in-law, and who, in consideration thereof, had promised complainant that it should be entered satisfied.

<p>[INSOLVENT LAWS—EEEECT OE ANSWEB.]</p> <p>IViieiu! tlie trustee attempts to vacate an assignment of the insolvent, as in violation of the insolvent system, he is not required to offer direct evidence of the facts upon which he relies, but may avail himself of circumstances to establish the intent with which the assignment was made, and if they be sufficiently strong, it will be set aside.</p> <p>But where the answer or evidence of the insolvent denies such intent, the difficulty of making it out is materially increased, and nothing short of circumstances of the strongest description will justify the Court in disregarding such answer or evidence.</p> <p>There must be both the intent to prefer, and to take the benefit of the insolvent laws, or the transfer will not bo disturbed.</p> <p>To avoid a transfer or payment, under the 1st section of the Act of 1834, ch. 293, actual notice must be brought home to the preferred creditor of the insolvency of the debtor; mere technical or constructive notice is not sufficient.</p>

<p>[MOTION TO BBINCr MONET INTO COURT.]</p> <p>Those who make the motion to have money brought into Court, must show that they have an interest in the sum proposed to be called in, and that he who holds it in his possession, has no equitable right to it whatever, and the facts on which these positions are based must be found in the case as it then stands, either admitted or so established as to be open to no further controversy at any subsequent stage of the proceedings.</p> <p>An answer exhibited accounts, showing a balance due complainant, which defendant says he was willing to settle, but the former refused to receive, and filed his bill, and the defendant believed, and still believes, that balance to be too large, and insists that he is now entitled to have certain sums credited with which he had not been credited in the accounts. Held &emdash;That these admissions were not sufficient to authorize an order to bring the balance into Court.</p>

[The original bill in this case was filed by George Watson and wife, on the 20th of June, 1849, for a sale of certain lands devised to the wife of the complainant George, and her sister Ann, the wife of the defendant Godwin, as tenants in common in equal shares. The answer of Godwin and wife denies that the sale would be advantageous to those entitled, and objects thereto.

[Certificates upon certain escheat warrants were caveated in these cases upon the ground that certain lots included in them had previously been granted to the caveators, and which they had taken up as vacancy. These caveats wore resisted upon the ground that the title to such lots never passed to the caveators by their patents, but still remained in the state, and were, therefore, liable to he taken up by the eaveatees under their escheat warrants.

<p>[PRACTICE in THE LAND OFFICE—EVIDENCE.]</p> <p>There is no rule of the land office which requires that a caveat shall be dismissed because the caveator did not show an interest in the matter in dispute.</p> <p>The judge may on caveat or on application for a patent, where there is no caveat, refuse a patent on account of a violation of the rules of the said office.</p> <p>Plats authenticated by the signature of the county surveyor, and returned under the orders of the court, must be treated as evidence and have weight accordingly.</p>

[These cases originated in the equity side of Baltimore County Court. The bill in the first case was filed on the 3d of July, 1849, and alleges that Jacob Baringer, sometime in the year 1849, applied for the benefit of the insolvent laws, and that on the 11th of June, 1849, the complainant was appointed his permanent trustee, the said Jacob having in the mean time departed this life.

[The original bill in this case was filed on the 1st of May, 1848, by the administrator, widow, and heirs at law, of Samuel House, deceased, and charges that in 1835, the deceased formed a partnership with his son, William A. House, in a large lumber business, tho father having a large capital, and the son but little; that the son was to have one-third of the profits, and the deceased two-thirds; that largo profits were made from this business, hut how much complainants…

[William Goldsborough was appointed committee of the person and estate of Loriman Chew, a lunatic, and gave bond with sureties for the faithful performance of his duties. After his appointment he became insolvent, and his securities filed the petition referred to in the following opinion of the Chancellor.]

<p>[OBJECTION TO CHANCERY SALE—INADEQUACY OP PRICE.]</p> <p>Mere inadequacy of price in a chancery sale, unless so gross and inordinate as to furnish, per se, evidence of fraud or misconduct on the part of the trustee, is not sufficient cause for setting the sale aside or refusing its ratification.</p>

[The testatrix, Jane Blake, by her will, referred to in the opinion of the Chancellor in this case, devised all her real estate to her executor, in trust, to sell the same and apply the proceeds in aid of her personal estate in payment of her debts and the legacies specified in her will, “and in trust also to invest so much of the said proceeds of sale as he may think fit, in such stock funds, or mode of investment as he may think fit, to pay said legacies and the annuities…

[The marriage settlement referred to in the opinion of the Chancellor in this case, after reciting the intended marriage between Antoinette McEadon and John H. Williams, conveys all the estate of the former, real, personal and mixed, to a trustee, in trust for the said Antoinette McEadon, her heirs, executors, administrators and assigns, until the said intended marriage shall be had and solemnized, and from and immediately after the solemnization thereof; in trust, to suffer…

[Jos. W. Finley, formerly of the city of Baltimore, but at the time of the filing of this bill, a resident of San Francisco, California, being indebted to various persons in the former city, transmitted in a letter, dated 31st of March, 1850, to Patrick Gibson, of Baltimore, three several drafts, two of which amounting to $7000 were drawn upon bankers in the city of New York, and the other for $5000 upon A. J. Bowie, of Baltimore.

<p>[PARTNERSHIP—PARTNERS.]</p> <p>The rule that the carrying the stock of an old firm into the business of a new one, entitles a partner of the old firm to treat the new trade as a continuation of the old business, and to claim such proportion of the profits as he might have claimed if the old trade had been continued, is not auniversal one.</p> <p>The right to share in the profits resulting from a continuation of the business after dissolution, is founded upon the exposure of the property of the partner who goes out to the risk of the new business, and if such partner has no property tobe thus exposed, the principle cannot apply.</p> <p>This rule is not applicable to the present case, where the whole capital was furnished by the continuing partners, and the out-going partner had af the time of dissolution drawn more than his share of the profits, and the written articles of co-partnership provided for its termination in various contingencies in precise terms, and the partnership was in fact dissolved in exact conformity with the articles.</p>

<p>[assignment in favor of CREDITORS—SEQUESTRATION—JURISDICTION.]</p> <p>An assignment in favor of creditors, though in other respects free from objection, must convey all the property of the grantor, and the onus, in this regard, is upon the party who sets up the deed.</p> <p>A deed in favor of creditors, of specific articles of property, and which does not, by express terms, purport to convey all the property of the grantor, is not, on that account, absolutely void, but upon proof that the grantor had no other property, will stand, if its other provisions are legal.</p> <p>The adjudicated cases in this state have not decided that an assignment in favor of creditors, which provides that the dividends of the non-assenting shall be divided proportionably among the assenting creditors is void.</p> <p>It would he irregular to decide upon the validity of such a deed upon the return of a writ of sequestration, to enforce a decree, when no such question was presented in the case in which the decree was obtained.</p> <p>Where a chose in action is in the hands of a third party, who is willing to abide by the order of the court, or who admits it to belong to the person against whom the writ of sequestration has issued, the court will consider it liable to sequestration, and will order it to be paid into court.</p> <p>But where the amount or title of the party whose property is sequestered, is disputed by the person holding the chose in action, the court cannot make an order upon him; it is only in a clear and simple case that a sequestration can be enforced by order.</p> <p>4 writ of sequestration was laid in the hands of a party who denied that the money belonged to the party against whom the writ issued, and set up a deed from such party, conveying the choses in action to him in trust, and his proceedings in the Superior Court of Baltimore city for the administration of the trust. Held—</p> <p>That under these circumstances, it would he wrong in this court to authorize the institution of proceedings at law or in equity to enforce the sequestration.</p> <p>If the Superior Court had jurisdiction over the subject matter of the trust, however irregular the proceedings may have been, they cannot be regarded as coram non judicc and void, nor can the irregularities be revised by this court.</p> <p>The decision of a court of competent jurisdiction, when coming incidentally in question or offered as evidence of title in another court, is conclusive of the question decided, no matter how irregular or informal the proceedings may be, or what mistakes or errors the court may make in the matter adjudicated.</p>

[The original bill in his case was filed by the complainant, Smallwood, on the equity sido of Charles County Court, on the 80th of August, 1837. It alleges that a judgment was rendered against him at August term, 1886, of said County Court, in favor of the defendant, Hatton, for $350 and costs, a short copy of which is filed as an exhibit.

[The following are the substantial facts in this case. The late Chancellor Bland, by a declaration of trust, (the terms of which are sufficiently stated in the first of the following opinions in this case,) dated the 20th of December, 1843, settled upon his son William Gr.

[The proceedings in this case up to December, 1849, are very fully stated in the report of the case in 8 Gill, 376, and in 10 Gr. and J., 159.

[The former opinions of the Chancellor in this ease are reported in 3 Md. Oh. Decisions, 278. The following opinion was delivered the 13th of February, 1854, upon the hearing of exceptions to the Auditor’s report and accounts. The nature and purport of these exceptions sufficiently appear in the opinion.]

<p>[PARTITION OP REAL ESTATE—SPECIFIC PERFORMANCE.]</p> <p>In a proceeding for the partition of the real estate of an intestate, two of his children, to whom he had in his lifetime given certain portions of his estate, and of which they had taken possession, and made expensive improvements thereon, under the promise or agreement of their father that the property should be theirs, were made defendants, and they insisted that the land so claimed and possessed by them was not liable to partition. Hele—</p> <p>That under the case as presented, the parties claiming the lands being defendants, and not asking the active interposition of the court in their favor, partition of these lands should not be decreed.</p> <p>A much weaker case will constitute a good defence than would be required if the parties were complainants, asking' the active interposition of the court in their favor ; they are not hound to make out a case which would entitle them to the specific performance of the agreement set up in their answers.</p> <p>To constitute a valuable consideration, it is not necessary that money should he paid ; if it be expended on the property on the faith of the contract, it constitutes a valuable consideration.</p> <p>Money expended in the improvement of land on the faith of the contract constitutes a consideration on which to ground a claim for specific performance.</p> <p>A court of equity will not decree the specific performance of a mere voluntary agreement.</p>

<p>[CONSTRUCTION OF WILL—CONTRIBUTION—LEGACIES.]</p> <p>A testator by his will, executed in 1832,In order to place his sons upon an equality with his daughters, gave to each a pecuniary legacy to be paid by his executors “by the sale of his bank or other stocks.” Held—</p> <p>That this equality had reference to the state of facts existing at the date of his will, and no subsequent fluctuation in the value of the property which the testator may have previously given his children can influence this bequest, either to diminish or increase it.</p> <p>A gift of a house to one of his sons subsequently to the date of the will, is not an ademption, pro tanto, of the pecuniary legacy given by the will; one of the exceptions to presumptive ademption is where the testamentary provision and the subsequent advancement are not ejusdem generis.</p> <p>These legacies to the sons are payable out of the personal estate alone, and that being insufficient, they have no right to resort to the real estate in the hands of the devisee.</p> <p>A testator directed “his funeral expenses and debts to be paid out of whatever part of his estate his executors shall think proper.” Held—That if this clause confers upon the executors the power to sell the real estate, it only authorizes them to do so for the purpose of paying funeral charges and debts.</p> <p>The real estate is never charged with the payment of legacies, unless the intention so to charge it is expressly declared, or is fairly and plainly to be inferred from the terms of the will.</p> <p>A testator declared by his will, that if any claim was made against his estate on account of certain notes drawn by him in favor of his daughters or their husbands, his executors should charge the sums paid by his estate on account thereof to his daughters. These notes the testator paid in his lifetime, and lived more than two years thereafter without changing his will. Held, that the provision made in his will for his daughters could not be diminished on account of the payment of these notes.</p> <p>At common law upon partition between coparceners there is an implied warranty that if either loses any of his share by eviction, on account of defect of litle in the ancestor, the party evicted may enter upon the others and defeat the partition, or by proper proceedings, may obtain recompense for the part lost.</p> <p>A deed of partition was executed Detween several parties without covenants, and the portion assigned to one was made responsible for the payment of a decree against the ancestor. Held—That he had a right to call upon the other parties in chancery, to contribute their proportions of the money paid by him in discharge of this decree.</p>

[The hill in this case was filed by creditors against the widow and administratrix, and heirs at law of Rinaldo Dorsey, deceased, charging the insufficiency of the personal estate to pay his debts, and praying for an account from the administratrix, and for a sale of the real estate for that purpose. After answer admitting these allegations, a decree for a sale was passed, and an account ordered.

[Tho devise in the will of Joseph W. Clagett in favor of his daughter, Henrietta Maria Hall, referred to in the latter part of the following opinion of the Chancellor, is as follows : “Item. I give and devise unto my son, William I).

<p>[recital in escheat warrant.]</p> <p>The recitals in an escheat warrant of the death of a party without heirs, are not prima fade evidence that the land is liable to escheat so as to throw the burden of proving the contrary upon the party who resists the patent.</p> <p>Where a certificate has been regularly returned on an escheat warrant, and has remained long enough' in the land office to justify the issuing of a grant, a reasonable prima fade presumption arises that the land is escheatable.</p> <p>An escheat grant is prima fade evidence that the land granted is liable to escheat.</p>

<p>[increase OF FEMALE SLAVES.!</p> <p>A testator devised a farm “with all the rest of his negroes, stock of every description and plantation utensils, in trust,” that “the income arising therefrom” be applied to the benefit of his uncle and aunt during their lives, and then over. Held—Th at the increase of the female slaves horn during the life ■of the uncle and aunt, did not belong to the legatees for life but pass to those ■entitled in remainder.</p>

[The following opinion of the Chancellor was delivered by him as Judge of the Land Office upon caveats filed to two certificates therein referred to. The facts of the case are fully stated in the opinion.]

<p>[mutation of real to personal estate.]</p> <p>Real estate, in which an infant was interested, was sold under a decree of this court, which sale was finally ratified and confirmed by an order of court. But the purchaser afterwards failed to comply with the terms of sale, and the trustee applied for a resale under the act of 1841, ch. 216, and an order passed accordingly, after which and before the second sale, the infant died. Held —</p> <p>That the mutation from realty to personalty was not complete at the death of the infant, the purchaser not having complied with the terms of sale, and her share of the proceeds of sale passed as real estate to her heir at law.</p> <p>The mutation is complete when the sale is ratified, and the purchaser has complied with the terms of it by paying the money, if the sale is for cash, or by giving bonds, if the sale is on credit, and a concurrence of all these cir■eumstances is necessary to effect the change.</p>

[The bill in this case was filed in May, 1850, by Henry Robinson, a free negro, and others, free negroes, against Washington D. Robinson and others, free negroes, and John D. Farquharson, for the sale of certain real estate devised to William Rea, in trust for them, by William S. Harper, of Dorchester county.

<p>[bill OF REVIEW—PRACTICE—USURY.]</p> <p>A bill of review for new facts or newly discovered facts, must aver that such facts came to the knowledge of the complainant within nine months prior to the filing of his bill.</p> <p>Between the same parties, and for the same matters, a new original bill cannot be brought after a decree has been made in a cause and enrolled, unless it was obtained by fraud.</p> <p>A decree was passed in 1841 for the sale of certain mortgaged property to pay a balance claimed in the bill to be due on the mortgage debt, which sum was admitted by the answer of the defendants under oath to be due. Seven years afterwards, the defendants filed their bill to open this decree upon the ground that it was passed in pursuance of an agreement as a mere security for any balance that might he found due on settlement of their mutual dealings, and then charging usury and other objections against complainant’s claim. Held—</p> <p>1st. That after such lapse of time,'it would require a very strong and clear caseto justify the interference of the court to prevent the alleged fraudulent and oppressive use of this decree.</p> <p>2d. Not having set up the defence of usury at the time the decree was passed, although he was well aware of the facts upon which the charge is based, and having offered no satisfactory excuse why he did not take the defence then, he cannot be allowed now to open the decree to let in this defence.</p> <p>Prior to the act of 1845, eh. 352, the plea of usury by the mortgagor or his alienee to a bill of foreclosure by the mortgagee would have been a full and complete defence.</p> <p>If a defendant, having the means of defence in his power in an action against him at law, omits to use them and suffers a recovery against him, he is precluded from asking relief in chancery in relation to the same matter.</p> <p>In equity as at law, parties are required to use due and reasonable diligence, and they will not be permitted to unsay at a future time what they have not only once said, but sworn to.</p> <p>Upon a supplemental bill, in the nature of a bill of review, the question always is, not what the plaintiff knew, but what, using due diligence, he might have known.</p>

[The bill in this case was filed by the complainant on the 1st day of February, 1849. It states that in 1799, George Calvert married Eosalio Eugenia Steer, daughter of Henry Joseph Steer, of Antwerp, and had by her five children who survived their mother. That prior to and in contemplation of said marriage, a marriage settlement was made, dated the 8th of June, 1799. That Henry Joseph Steer and his daughter Rosalie died in 1821.

<p>[priority of payment of legacy and annuity.]</p> <p>A testator, by his will executed in 1786, gave to his wife a legacy of ¿£2250, and an annuity of “<£500 during her natural life, to be secured to her out of the rents of his estate,” and devised to his brother the residue of his estate, “after the above will is complied with.” The legacy being unpaid and the annuity in arrear, a decree was passed in 1790, charging the rents of all the lands of the testator, with the payment of the annuity due and to become due, in the first place, and after said payment, declaring the reversion chargeable with the payment of the legacy. The property was subsequently sold, and the proceeds proved insufficient to pay the arrears of the annuity. Held—</p> <p>That both the legacy and annuity are by the decree of 1790, treated as a charge upon the real estate of the testator in the hands of his residuary devisee, and the same decree settles the question of priority of payment between the annuity and legacy by declaring that the former must be first paid.</p>

[A decree was accordingly passed on the 12th of May, 1848, appointing John S. McKim trustee, in place of David T. McKim deceased.

<p>[practice in chancery—trusts.]</p> <p>A testatrix by her will executed in 1812, bequeathed her property, real and personal, in trust, for the use of her granddaughter during her natural life, and after her death the same with its increase, to be divided generally among her children. The trustee named in the will declining to act, the Chancellor appointed trustees in 1815, who in 1827 were discharged, and two of the cestui que trusts were appointed trustees in their place, and in the same year a decree was passed for a sale of some of the negroes belonging to the estate, and the trustees gave bond for the execution of the trust. The granddaughter died 1846, and in the same year two of the cestui que trusts filed their bill for a settlement of the estate and distribution of the fund. Held—</p> <p>That in the distribution of the fund, under this bill, the accounts of the trustee, who sold some of the negroes under the decree of 1827, and appropriated the proceeds to his own use, could be inquired into and settled, and the amount so appropriated by him, with interest, deducted from his share of the fund.</p> <p>There is but one trust in this case, though it has been cut up into several distinct proceedings, and now, when a final disposition of the whole fund is about to be made, it is indispensable to justice that all the proceedings should be brought together by an order of consolidation.</p> <p>The trustee, acting under the decree of the Court of' Chancery of 1827, is entitled to a commission of seven and one half per cent, on the income of the real and personal estate.</p>

<p>[deficiency in land sold.]</p> <p>•A purchase of laud containing 181 acres, more or less, at so much per acre, was made in 1841, and at the same time the vendor agreed in writing to make deduction out of the purchase money for so much of the land sold, “where peaceable possession could not be given.” The vendor, subsequently executed a deed to the vendee for the land, describing it by metes and bounds, course and distance, and as containing 181 acres, more or less, and'putthe latter in possession of the whole. This deed contained no covenants. Held—.</p> <p>That the stipulation on the part of the vendor was fully discharged by putting the vendee in possession of the land, and the latter could not claim an abatement of the purchase money for a part of this land, of which he, subsequent-’ ly, permitted himself to be dispossessed.</p> <p>The deed being subsequent in date to the contract for an allowance in case of deficiency must be considered as taking the place of all previous agreements on the subject, and as containing the full and entire contract of the parties..</p> <p>A vendor selling in good faith is not responsible for the goodness of hiá title beyond the extent of the covenants in his deed.</p>

[The late John Ireland by his will, executed on the 80th of May, 1848, devised to his wife all his estate, both real and personal, for and during her life, and after her death as follows : “My personal estate to be equally divided between my grandchildren,” (naming them,) “to them and their heirs forever,” “and that my executor sell my real estate and pay unto each of my three grandchildren,” (naming them,) “the sum of one thousand dollars to each when they arrive at the age…

[The first opinion of the Chancellor in this case is reported in 2 Md. Oh. Decisions, 25.

[The bill in this case was filed on the 28d of June, 1850, in the equity side of Baltimore County Court, from which it was removed to the Court of Chancery. The facts of the case are sufficiently stated in the Chancellor’s opinion.]

Pel tMs case, the construction of the following clause of the. will of Hannah Benson, executed on the 5th of July, 1845, was submitted to the Chancellor.

<p>[vendor’s LIEN—PETITION OF TRUSTEE TO RESELL PR0PERT7.]</p> <p>The equitable lien held by the court for the payment of the purchase money of land sold under its decree, cannot be enforced by a trustee who has assigned the bonds given for its payment, whether the assignment was or was not made, with the sanction of the court.</p> <p>The assignment of a bond given for the purchase money of land withoutirecourse, extinguishes the vendor’s lien, because so far as he is concerned, it amounts to a payment and satisfaction of his claim.</p>

[The real estate of Benedict W. Hall, who died in 1843, was sold under the decree in this case, for the purpose of partition amongst his heirs at law. One of those heirs, Jane S. Hall, previous to the death of her father, had intermarried with one William P. Turner, by whom she had issue, and who subsequently, on the 24th of March, 1843, applied for the benefit of the insolvent laws.

[An order was then passed directing the Auditor to state the value of defendant's property at the present time, and also at the time of filing the bill, in accordance with the above opinion.

[The exceptions to the sale inade in this case referred to in the Chancellor’s opinion were taken by the purchaser, and are in substance as follows : 1st. That the property was offered upon the terms set forth in the advertisements by J. J. Speed, who in one advertisement professed to act as trustee under the decree of this court, and in the other as trustee under a deed of trust; and said trustee stated in said advertisements that the ground rent is only ten dollars,…

[The property of the company, which was sold in this case, consisted of steamboats and vessels used by them in the prosecution of their business, and other effects, and the crews who navigated these vessels, and the parties who furnished supplies to the vessels claimed a prior lien upon the proceeds of sale. These questions were argued and decided by the Chancellor in favor of the claimants, and his opinion, delivered upon the 20th of July, 1847, is reported in 1 Md.

[The hill in this case was filed for the sale of the real estate ' of John Beard, deceased, for the purpose of paying his debts.

<p>[EXTENT OP LIEN—LIMITATIONS-SET-OFF—PRACTICE.]</p> <p>A deed was executed in 1835, conveying certain lands, in trust, with power to the grantee to sell the same and apply the proceeds to pay, first—A specified debt. Second—All other debts of the grantor for which the grantee was responsible, and any advances the latter might make for the former. Third —All other debts of the grantor at that time contracted which the grantee might consider just, legal, and equitable, and fourth—The expenses of the trust. The grantor died in 1837, and the grantee not having sold the property, a bill was filed in 1842, by the creditors of the grantor, under which all his real estate was sold for the payment of his debts. Held—</p> <p>1st. That the grantee, by virtue of this deed, had a lien only on the land described in and conveyed by it, but he may show himself a creditor beyond the provisions of the deed, and in respect of any such claim he will stand upon an equality with the general creditors of the grantor.</p> <p>2J. That the claims of the grantee within the terms of the deed, and with reference to the proceeds of the property thereby conveyed, are not liable to the plea of limitations, but with regard to the proceeds of any other property of the grantor they are so liable.</p> <p>Claims due by a guardian for property which he received from the mother of his wards, cannot be set-off against claims due to the guardian by the estate of their father.</p> <p>There must be reciprocity and mutuality in the right of set-off, and the demands on the one side and the other must be in the same right.</p> <p>A defendant to a creditor’s bill, though he does not in his answer distinctly allege himself to be a creditor, and though he asks in his answer, .to be dismissed with costs, may still after decree come in upon the fund as a creditor.</p> <p>As a general rule, if the infirmity of the plaintiff’s case appears upon the face of his bill, the defendant may rely upon it at the hearing, no matter how imperfect, or what the character of his answer may be, and it is only with respect to some defences given by statute that a different rule prevails.</p>

[The hill in this case was filed by the complainants, creditors of Wm.

[The bill, in this case, was filed for a partition of the real estate of John Wilhelm, deceased, among his heirs at law. The heirs at law were ten in number, and the commissioners decided that the land was capable of advantageous division into ten parts, and divided the same accordingly, making several of the lots to contain less than fifty acres.

[An injunction was granted upon the bill filed in this case, and after answer, the cause was heard upon motion to dissolve. The facts of the case, and the allegations of the bill and answer are all fully stated in the following opinion of the Chancellor, delivered upon the hearing of this motion.]

<p>[practice in chanrery.]</p> <p>Proof taken under an ex parte commission cannot be read against defendants who answered an original bill, though they failed to answer a bill of revivor in the same case and an interlocutory decree was passed against them for such default.</p>

[The bill in this case was filed for an injunction to stay-waste, the complainant, Cockey, being an infant and suing by David Carlisle, his guardian and next friend.

In this case, certain property was sold under a decree of this court, by Edward Laroque and Charles E. Mayer, trustees, and the only question decided, in the opinion of the Chancellor, below, arises upon the petition of James C. Ninde, filed in the cause on the 21st of June, 1852.

[The mortgaged real and personal estate of Wm. S. Green, formerly clerk of Anne Arundel County Court, was sold under a decree of this court in this cause, for the purpose of paying the various incumbrances upon it. The bill was filed by the attorney general, in behalf of the state, on the 6th of July, 1844. Several judgments had been recovered by the state against said Green and Brown & Welch, the sureties on his official bond.

[In this case a decree for the sale of the Holliday Street Theatre, in the city of Baltimore, was passed, the sale made and ratified, and the proceeds brought into court for distribution. A statement of the proceedings up to the ratification of the sale will be found in the cases of Wagner & Marshall vs. Cohen, 6 Gill, 97, and Cohen vs. Wagner, 6 Gill, 236.

<p>[practice in chancery.]</p> <p>The process of subpoena scire facias is the proper and appropriate proceeding to revive a decree which has abated by death, or where a female complainant has married, or the decree has become dormant by lapse of time.</p> <p>A promise to allow a defendant a credit upon a decree against him by which he was induced to waive his right of appeal, rests upon a good and valid consideration.</p> <p>An unqualified offer by complainants to allow the defendant a credit upon a decree in their favor, which offer was the result of negotiations previously had between the parties to settle the matters in dispute, in a friendly manner, cannot afterwards he withdrawn by them.</p>

[A statement of the facts of these cases and of the allegations of the hills and answers will he found in 1 Md. Oh. Decisions, 87, where the first opinion of the Chancellor is reported. Thos. R. Cross, the party upon whose estate Brown & Stewart jointly administered, was the father-in-law of each. The proceedings in the case subsequent to the filing of the opinion previously reported, are sufficiently stated in the following opinion of the Chancellor.]

[The allegations of the bill and the answer in this case will be found stated in 9 Gill, 472, where the appeal from the order of Baltimore County Court, in the equity side of which the bill was filed, overruling the motion to discharge the receiver, was affirmed, and the cause remanded for further proceedings. It was subsequently removed to the Court of Chancery.

<p>[JUDGMENT LIEN-PRACTICE IN CHANCERY.]</p> <p>Where three years have elapsed after the rendition of a judgment, and no fiat has been entered upon the scire facias, the judgment must be presumed to be satisfied, or at least not in a condition to be enforced at law.</p> <p>Where mortgaged property has been sold under a decree of this court, and a judgment has been rendered against the mortgagor, prior to the mortgage, which had become dormant by lapse of time, and no fiat had been entered upon the scire facias to revive it, the judgment creditor cannot, in such condition of his judgment, contest with the mortgagee, in this court, the application of the proceeds of the sale of the mortgaged premises.</p> <p>Note by Reporter.—The subsequent proceedings in this case, are reported in the case of Duvall vs. Speed, 1 Md. Ch. Decisions, 229. Though no opinion was filed in the case of Murphy vs. Cord, 12 Gill & Johns., 182, referred to by the Chancellor, in the above opinion, yet when that case was cited in the argument of the case of Doub vs. Barns et al, 4 Gill, 11, Judge Chambers said, it was the decision of the Court of Appeals in that case, and if an opinion had been filed would have been expressed.</p> <p>“1. That the lien of the judgment was not lost with the right to issue an immediate execution as had been announced by the Chancellor, in 3 Bland, 298, and the lien remained for twelve years.</p> <p>“2. That when the debtor alienated lands, subject to the lien of a judgment, before the right to issue an immediate execution was suspended, that is, within three years from the date of the judgment a scire facias was unnecessary to affect the terretenants.</p> <p>“3. But where a scire facias was necessary to revive the judgment, whether by death or lapse of years, it was necessary against all the terre-tenants, whose lands were to be affected by the judgment.”</p> <p>These propositions were assented to by all the judges present at the argument of the case of Doub vs. Barns, consisting of Archer, C. J., Dorsey, Chambers, Spence and Magruder, J.</p>

[The bill in this case was filed to obtain an injunction restraining the defendant from closing a road over his lands, in which the complainant claimed a private right of way. The allegations of the bill and answer, and the substance of the evidence taken, are fully stated in the opinion of the Chancellor, delivered upon the hearing of the motion to dissolve.

<p>■[EFFECT OF INSOLVENT APPLICATION UPON PROCEEDINGS FOR A SALE IN THIS COURT-SALES BY TRUSTEES.]</p> <p>A bill was filed in this case by a vendor for the sale of a certain parcel of land to pay the vendor’s lien, and a decree was passed accordingly, which upon appeal was affirmed by the court of appeals : after the decree, but before the sale had actually taken place the defendant, the vendee, applied for the benefit of the insolvent laws, and his trustee in insolvency was duly appointed, who applied to the court to stay execution of the decree upon the ground that by theproceedings in insolvency the right to make the sale is exclusively vested in the trustee of the insolvent. Held—That the proceedings in insolvency did not put a stop to the proceedings of this court, and its trustee was still bound to execute the decree by a sale of the property.</p> <p>In the execution of decrees for the sale of property, though this court employs a trustee, that officer is its agent, the court itself being the vendor acting through the instrumentality of its agent.</p>

[The facts of this case are fully stated in the following opinion of the Chancellor, delivered upon the hearing of the motion to dissolve the injunction which had been granted upon the bill.]

[A, bill was filed on the 21st of July, 1843, by William Crook, as the assignee of a mortgage of certain leasehold property in •the city of Baltimore, against Wm. H. McClellan, for a sale of •the mortgaged premises to satisfy the mortgage debt.

[The bill in this case was filed for an injunction restraining execution of a decree of this court for the sale of certain mortgaged property, passed under the provision of the act of 1833, ch. 181, the mortgage having been executed with reference to that act.

[The real estate of Mary Shepherd, deceased, who died in September, 1847, was sold under the proceedings in this case, for payment of debts and distribution amongst the parties entitled. The case was brought before the Chancellor upon exceptions to the Auditor’s report and accounts. The disputed claims are those numbered 1, 2, 8, 4, 5 and 6.

[The statement of facts referred to in the opinion of the Chancellor in this case shows, that Kilgour, the trustee in this case, held in his hands certain moneys belonging to the creditors of Shrieve; that John I. Harding, of Loudon county, Virginia, was one of those creditors, and had filed his claim in the cause, and the account stated by the Auditor allowed a distributive share thereto ; that said Harding, on the 2d of September, 1847, executed a deed of trust to Thomas…

[By a marriage settlement, executed on the 11th of September, 1849, in contemplation of a marriage then intended to be shortly had and solemnized between George A. Williams and Jane A. Douglas, all the real and personal estate of the intended wife was conveyed to Donaldson & Winchester, in trust. First, for the- said Jane, her heirs, executors, administrators and assigns, until the solemnization of the intended marriage.

[The bill in this case was filed on the 22d of May, 1849, by Joseph White, and alleges, in substance, that in February or . March, 1835, complainant and his father, John 0.

[Mrs. Henry Margaret Ogle, by her last will, executed on the Tth of April, 1814, devised as follows: £‘I give and devise all my estate, real, personal and mixed, (except what shall be hereafter mentioned,) to my son Benjamin Ogle, my son-in-law John Tayloe, and my friends Richard Tasker Lowndes and George Calvert, and to the survivors and survivor of them, and the heirs of the survivor in trust, to pay all my just debts and funeral expenses as soon as practicable after my…

<p>[hTo appeal was taken from this order.]</p>

[The facts of this case are sufficiently stated in the following opinion of the Chancellor, delivered on the 5th of November, 1847, and in 2 Md. Ch. Decisions, 151, and ante, 158, where other opinions in the same case are reported.]

[This was a creditor’s bill, filed on the 12th of November, 1840, against the executrix and heirs and devisees of Henry Brawner, deceased.

[The hill in this case was filed by the complainants, John T. Stoddert and Robert Bowie, Jr., and Elizabeth, his wife, against the personal representatives, widow and devisees of Robert Bowie, deceased, for the specific performance of an alleged agreement made between the said Robert Bowie, deceased, and the complainant, John T. Stoddert, in contemplation of the marriage of their children, the other complainants.

[The clause of the will of the late Chancellor Bland, which came under review in this case, are as follows: 1st. “I do hereby give and devise all my property, real and personal, of every description, except Bland Air, and the slaves, with their increase, which I derived in a course of distribution from my uncle, Thomas Fitzhugh, deceased, and the other personal property thereon, not slaves, and used with the same at the time of my death, and except the bequests hereinafter…

[By the will of Larkin Shipley, executed in 1822, the testator devised the residue of his estate, real and personal, to Richard Gr.

[The facts in this cause will he found set out at length in the case of Jones and wife vs. Stockett, 2 Bland, 409 to 436, and in the case of the Farmers and Mechanics Bank et al vs. Wayman and Stockett, 5 Gill, 336 to 358. It is the proceedings in Chancery which occurred after the cause was remanded by the decree of the Court of Appeals, in 5 Gill, 358, that are now to he reported.

[The original bill in this case was filed by Richard Iglehart, on the 2d of October, 1888, and states, in substance, that on the 28th of September, 1829, a writ of fieri facias was issued out of the Court of Chancery, on a decree passed in a cause, in which Caroline Duncan and William B. Duncan were defendants, and was directed to complainant, the then sheriff of Anne Arundel county.

<p>[The bill in this case was filed by Morgan Harris and Etheldra his wife, to enjoin an ejectment suit brought by the defendant, William Morris, for a tract of land called “Morris Landing,” and to obtain a conveyance of the legal title to the same by a decree for the specific performance of an agreement between said Morris and Samuel Chapman, the ancestor of complainant’s said wife, in relation to the sale of said land.</p> <p>It alleges that in 1817, Samuel Chapman, of Charles county, discovering a vacancy adjoining his lands on the Potomac river, agreed with said Morris that they together should take up the same; that the patent should issue to Morris, but the land should be held equally between them, each owning one-half thereof; that said Chapman paid $77 27, the caution money, on the 1st of March, 1817, to the state, and the receipt of the treasurer therefor is exhibited with the bill; that in pursuance of this agreement, the land was patented to Morris, and called “Morris Landing,” containing 52-|- acres. That afterwards, said Chapman being about to sell all his lands on the Potomac, purchased of Morris all his interest in said tract, being one moiety thereof. That in part performance of this contract, said Chapman was put in possession of the whole tract, and remained in possession thereof from that time until his death, in 1825. That the complainant, Etheldra, is one of the heirs at law of said Chapman, and in the division of his real estate, this land was allotted to her as a portion of her inheritance, and that complainants have been and still are in possession of the same, but Morris has never executed a deed therefor, but has instituted an action of ejectment to recover possession thereof. The bill then prays for an injunction to restrain this •ejectment suit, and that Morris may be decreed to convey the title to the land to complainants, and for general relief.</p> <p>Morris, in his answer, says, he is ignorant of the alleged division of Samuel Chapman’s estate, and positively denies any contract or agreement on his part for or touching one-half or any part of “Morris Landing.” He avers that, being interested in certain lands formerly belonging to one Knox, he was informed of the vacancy called “Morris Landing,” and accordingly, in 1817, obtained a special warrant to affect said vacancy, as appears by the patent and surveyor’s records, exhibited with his answer. That about the same time, for the benefit of himself arid one Hanson, he obtained another special warrant to affect other vacancy, and finding that Samuel Chapman had also obtained another warrant of resurvey, it was agreed between Hanson, Chapman and himself, that the warrant obtained by Chapman should be executed instead of the one for the joint use and benefit of Hanson and himself, and that the costs of the survey should be paid by himself and Chapman ; that this warrant was executed, and all the costs paid by himself, and the warrant was laid on lands entirely different from “Morris Landing,” and the lands thus taken up by Chapman were called “Smithfield.” That Chapman paid the caution money on “Morris Landing,” not because he was interested therein, but because he, Morris, paid the whole cost of Smith-field. He denies that he ever sold, or offered to sell, either “Smithfield,” or “Morris Landing,” to Chapman ; that said Chapman always admitted that “Morris Landing” was respondent’s property, and rented the same for several years before his death from respondent, who had the exclusive possession thereof for several years after the survey and patent aforesaid, and rented the same to sundry persons. He then denies that there was any agreement, parol or written, and insists “that if there was any agreement, it was not reduced to writing, and signed by the parties, as required in such cases by law,” and also denies that the caution money was paid, or possession taken under any such agreement as is set up in the bill.</p> <p>The testimony chiefly relied upon to sustain the allegations of the bill, was that of John G. Chapman, a son and heir at law of Samuel Chapman, and Elizabeth Chapman, the widow of said Samuel Chapman.</p> <p>John G. Chapman proves, in substance, that he frequently heard both Samuel Chapman and the defendant, Morris, say, that the vacancy was discovered by Chapman, and at that time the adjoining land was owned by one of the Jenifer family. That Chapman told Morris of the vacancy, and the latter proposed to take it up in his own name, alleging that Jenifer had once interfered with him in relation to some land; that Chapman consented that the land should be taken up in Morris5 name, and agreed with Morris that he should have one-half, and Chapman the other, and the land was taken up with that understanding and agreement; that the warrant was obtained in Morris’ name, and the patent issued to him in virtue of the understanding between him and Chapman, that the land was to be held as their joint property. That witness has also been told both by said Chapman and Morris, that the former was to purchase the latter’s half of “Morris Landing,” provided he got the adjoining land, which had been owned by Jenifer, and sold to one Dunnington, and was to allow him the price he paid for Dunnington’s land, $8 per aere, and Dunnington’s land was purchased by Chapman in 1821. That the land was always held by said Chapman, except a part of the shore, which was rented one year to a man from Virginia as a fishery, and for the rent of which suit was brought in Morris’ name, because he and Chapman both having been present at the renting, it was agreed between them that Morris should receive the rent, as Chapman was a witness to the contract, but that Morris told witness the whole land then belonged to Chapman, who was to credit him for his half thereof upon a settlement of their dealings. That said Chapman was in possession of the whole of this land up to the time of his death, in 1825, renting the same, and receiving the rent therefor; that Morris never claimed any part of it until after the division of Samuel Chapman’s estate, in 1827, by which this land was allotted to the complainant, Etheldra, the wife of Harris.</p> <p>Elizabeth Chapman proves that upon one occasion Morris came to her husband’s residence, and had some conversation with him in reference to this land. That witness understood, from what passed between them, that Morris was to have one-half of the land for his trouble, and that her husband was to pay Morris for his half by giving him credit for it. This occurred long after the land was taken up. Her husband held possession of the land from the time it was taken up until his death in 1825.</p> <p>The defendant objected to the testimony of both these witnésses, upon the ground of interest in the result of the suit, the former by reason of being one of the heirs at law of Samuel Chapman, and entitled to a moiety of his real estate; the latter as being the widow of the deceased, and entitled to dower in his real estate.</p> <p>The division of the estate of said Chapman referred to in the proceedings, was effected by a deed of partition, executed on the 3d of October, 1832, between John Gr. Chapman and Harris and wife. This deed is to the purport following: after reciting that the parties, John Gr. Chapman and Etheldra Harris, hold, as tenants in common, in equal shares, the lands of which they are seized in fee as the heirs at law of Samuel Chapman, and that they have agreed to divide and hold their respective shares in severalty, it is thereupon covenanted, granted and agreed by and between them, that each shall hold, possess and enjoy in severalty the respective portion allotted by said partition, and which each of them, by the said deed of partition, doth grant, release and confirm to the other, with the mutual covenant and grant, that each party shall forever peaceably, quietly have, hold, occupy, &c., free and discharged from all title, interest, claim and demand of the others, their heirs and assigns, &c.]</p> <p>[The decree of the Chancellor in this case was affirmed upon appeal. See 9 Gill, 19.]</p>

[A certificate for “Conway,” being a survey returned upon an escheat warrant to affect certain soldier’s lots in Alleghany county, taken out by Jonathan Wilson was eaveated by James Condy and Jacob Markle. 1st, because the lots named in the survey as contiguous are in fact separate and distinct; 2d, because the certificate of survey attempts, contrary to law and practice, to connect lots which are separate by intervening vacancy, and thereby make them contiguous; 3d, because…

<p>[sale of manumitted negroes to fat debts.]</p> <p>Where negro slaves are manumitted by deed or will, and the real and personal estate of the maaumiltor or testator are insufficient for the payment of his debts, his creditors may file a bill in equity making the manumitted slaves and all persons interested parties, and have an account taken of all the property of the deceased, and if it shall prove insufficient to pay his debts, the manumitted slaves may be decreed to be sold for that purpose, either for life or a term of years, as the circumstances or the nature of the case may require.</p>

[In this case, a warrant of resurvey upon a tract of land called Fat Bacon was issued on the 9th of September, 1776. To the certificate of the surveyor, returned on the 1st of November, 1797, a caveat was filed by James Twigg on the 5th of April, 1847, for the reasons appearing from the following opinion of the Chancellor.]

[A certificate of survey granted to Henry Naylor, upon an escheat warrant, embraced seven contiguous soldiers lots in Alleghany county, numbered 1121, 1122,1131,1132,1134,1920 and 1923, and was caveated by Baker & Smith. . It was admitted that Smith had title to lots 1132 and 1923, at the time of the issuing of the warrant, and that these two lots destroyed the contiguity of the others.

[The facts of this case are fully stated in the following opinion of the Honorable Nicholas Brewer, Associate Judge of the Third Judicial District, to whom the cause was certified by the Chancellor, he haying been the counsel for one of the parties thereto.] [In pursuance of this order, the heirs at law amended their petition against Bent, the executor of the deceased trustee, Brawner, charging that Brawner left assets which have come to the hands of said Dent, as executor,…