majority"> The Chancellor..

The complainant is the only child of Joanna DeGroot. The defendant, Naomi Wright, is a child of the complainant. The complainant and his mother, after the death of his father, continued to live together on the homestead farm of his deceased father.

The case made by the bill is, shortly, that, in 1817, the said Joanna, the complainant’s mother, agreed with the complainant that he might enter upon and take possession of a certain tract of land of about eighty acres, and make improvements; and that in consideration of so doing, he might possess and enjoy the same and take the rents, issues, and profits thereof during his natural life. That, about the year aforesaid, the complainant took possession of the said tract and commenced to cultivate the same, and hath since hitherto continued to cultivate the same. That he has built a dwelling house, barn and other outbuildings thereon, and made other improvements; and has always, since he so took possession, been in the occupancy and possession thereof and taken to his own use the rents,' issues and profits thereof. That the said Joanna, in September 1846, conveyed the said tract to the defendant Naomi, wife of the defendant E. R. V. W., her heirs and assigns, for the consideration of natural love pnd affection. ■

*523That the said deed was made and accepted with full knowledge by the defendants of the rights and interests of the complainant in the premises, and that it was understood and agreed, that the same was not to take effect during the life of the complainant, so as to affect his rights and interests during said period, and that the complainant was to have the use and possession of said tract during his life. That the said deed was drawn by E. R. Y. W., and that, if the said deed does not, as complainant helieves it does not, reserve the use of the said tract to the complainant during his life, it was drawn in violation of the express understanding and agreement made by the said Naomi with the said Joanna, that the complainant should possess and enjoy the same to his death, and is a fraud on the said Joanna and this complainant. The bill prays that the said deed from the said Joanna to the said Naomi may he corrected, in conformity with the said alleged agreement, so as to reserve to the complainant a life estate in the premises; and that the defendants may be injoined from prosecuting an ejectment brought by them, or any other action to turn the complainant out of possession, during his life. The said Naomi and her said husband, E. R. V. W., are the only defendants. Joanna DeGroot is not made a defendant.

The answer denies that the defendants had any knowledge or information that any such agreement was entered into between the said Joanna and the complainant, or any agreement whatever by which the complainant was entitled to enjoy the said tract of land for his natural life, or any other time, except as tenant at will; and says that the defendants are informed and believe that no such agreement was ever made or entered into between the said Joanna and the complainant.

The defendants severally deny, that at the time of the making and delivery of the said deed from tho said Joanna to the said Naomi they had any knowledge, information or belief that the complainant had any right or interest in the said tract of land for his life, or for any other term; or that it was understood or agreed between the said Joanna and the said Naomi that said deed was not to take effect during the life of the complainant; or that it was any part of the agreement or understanding on which said deed was delivered that the complainant should have the use *524and possession of the said tract during his life. They deny that the said deed was drawn in any way or respect different from or in violation of any understanding or agreement between the said Joanna and the said Naomi, or different from their understanding, wishes and instructions ; and they aver it was drawn according to their desire and instructions.

As to the alleged agreement or understanding between Joanna and Naomi that the deed from Joanna to Naomi was not to take effect during the life of the complainant, such agreement or understanding, if made or had, would, of course, be known to Naomi. She denies that any such agreement or understanding was made or existed. The answer upon this point of the case is a sufficient denial of the bill. It must be taken, then, for the purposes of this motion, that the áeed from Joanna to Naomi was made as it was intended to be made. Joanna intended to convey, and did convey, by the deed to Naomi, the fee, making and intending-to make no reservation of or provision for any interest in the premises to or in favor of the complainant. She may have relied that Naomi, being the daughter of the complainant, and her husband would not turn the complainant out of possession, but would permit him to occupy the premises duing his life; and something may have passed between her and Naomi, before or after the delivery of the deed to Naomi, which gave her confidence in this respect; but she made an absolute deed, and imposed no obligation on Naomi. And her making an absolute deed must be considered as an assertion on her part that she had the right to do so, and a denial of any interest in the premises in the complainant, or any other person, interfering with her right to do so.

The question, then, as to the propriety of dissolving or retaining the injunction, is to be determined upon the bill and answer in relation to the agreement alleged in the bill to have been made between Joanna and the complainant. Such an agreement might have existed and not be within the direct and positive knowledge of the defendants; and if Joanna had been made a party defendant, the answer of Naomi and her husband that they had no knowledge of any such agreement, and were informed and believe that no such agreement existed,, would not have been sufficient to to dissolve the injunction.

*525Joanna should have been made a defendant. The complainant' denies her right to convey the property without reserving a life estate therein to him, and calls, in his bill, for a correction of the deed from Joanna to Naomi, so as to reserve or to procure for him such life estate. But he omits to make Joanna a defendant ; gives her no opportunity of answering his allegation; deprives the defendants of the benefit of the answer of Joanna; and calls only on Naomi and her husband for an answer as to the alleged agreement between him and Joanna.

The complainant has chosen to test only the consciences of Naomi and her husband as to this matter: he has not chosen to test the conscience of Joanna. Under these circumstances the answer of the defendants that they have no knowledge of any such agreement between Joanna and the complainant, and that they are informed and believe that no such agreement existed is a sufficient answer to the bill. The complainant knew that this was all the answer the defendants could give, and has omitted to make a defendant one who should have been made a defendant, and who could answer from her own knowledge to the existence or non-existence of such an agreement.

Tho correctness of this view appears, in this case, from the fact that the affidavit of Joanna, taken on the part of tho complainant, and which was read subject to the opinion of the court whether it could be considered on this motion, docs not sustain the allegation of an agreement between Joanna and the complainant as stated in the bill; but disproves it.

Injunction dissolved.

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