
    
      Blight’s heirs vs. Banks and Lewis' executors and others, and Banks vs. Blight’s heirs, &c.
    
    Chancery.
    Cross appeals from the GeneraljCouvt; John P. Oldham, and John L. Bridges, Judges.
    
      Ejectment Bills. Bills for deeds of confirmation. Con- ■ veyances. Answers. Recitals. Liens. Vendors and ven-dees. Absent defendants, Practice. Error, Depositions. Sheriff's sales. Evidence. Register’s sales.
    
    December 1.
    G-rant of the anffckd^9 bourne.
    Blight’s claim of title.
    Deeds of bargain and sale and'cial- S bourne to De Lomerie, and tion,°ni!rma'
    Banlis’ letter to Clalrney bourne1.
    Claibourne’s deed to Tronchará. commission-era of bankruPtcy sf AI‘"J?18 S
   Judge Mills

delivered the opinion oí the Court.

A patent for 113,482 acres of land issued from the Commonwealth of Virginia, to Hen-JT Banks and Richard Claibourne, as tenants in common, which forms the subject of the present controversy.

Samuel Blight filed his bill in the court below, claiming the title thereto, by the following chain of conveyances.

A conveyance for 5277 acres thereof, as the quan= tity is styled in the face of the deed, (but as the }30vinctary described in the deed shows, upwards of 20,000 acres) from Henry Banks and Richard Clair bourne, the patentees, dated in 1787, to Pierre Louis Philippi Galbot De Lomerie , and also a deed confirmation of the same land to De Lomerie by the same patentees, dated in 1799.

A conveyance from De Lomerie to Blight himself, which completes the claim as to that quantity.

As to the residue of the tract which forms the principal controversy, he sets out the following:

A letter of attorney from Henry Banks to his co-partner, Richard Ciaibourne, authorizing him to se^ convey all his interest in this and other lands, dated on the 25th January, 1786.

A conveyance from Richard Claibourne for himself, and as attorney in fact for Henry Banks, dated 6th January, 1794, of the whole residue of the tract, to James Trenchard.

Conveyance from lhe assignees to

Deed of Keighan to Ervin and Jones,

Ervin to Jones.

Jones’ deed to Bllshtp

Trenchard’s deeds to Allison.

Alljson to Shannon.

Shannon to Bl7a,r!’.Ij-yl!3 amli‘ries-

Conveyance ím]a Br?a"’.

Blight’s bill alleging tbs deeds in his claim of title, registered"according to law, aijd proved' and others are lost, and praying deeds of confirmations.

A conveyance for one third of the same tract, from Trencharcl to Barges Allison, dated 28th November, 1798»

A conveyance from Thomas Campton, William Tilghman and Joseph Hopkins, commissioners of bankruptcy, under the late law of the United States on that subject, (Burges Allison having been under a commission issued for that purpose, previously declared a bankrupt,) to Thomas Ervine and Samuel Jones, as assignees, dated 27th February, 1801.

A conveyance from Thomas Ervine and Samuel Jones to John Keighan, dated 2d June, 1803.

A conveyance from Keighan, dated on the same day with the latter, to the said Thomas Ervine and Samuel Jones, as individuals.

A conveyance from the said Thomas Ervine and wife, to the said Samuel Jones, for his moiety of the third undivided, dated 4th September, 1809.

A conveyance from said Samuel Jones, dated on the 80th of November, 1809, to Samuel Blight, the complainant, which in addition to the. conveyance from De Lomerie, completes his claim to De Lo-merie’s part and an undivided third of the residue.

For the remaining two thirds which we, according to this statement, have left in James Trench-ard, he sets out the following conveyances:

Two conveyances from said Trenchard to David Allison, dated 28th November, 1796, each for one third of the tract.

A conveyance from David Allison to William Shannon, .dated on the 11th of June, 1797.

A conveyance from William Shannon to Guy Bryan, John Lyle and JohnFries, dated on the 13th of November, 1809.

Apd finally a conveyance from said Bryan, Lyle and Fries to Samuel Blight, the complainant, dated 23d October, 1809.

In his original hill,' he makes the patentees and all the intervening grantees parties, and states that none of these conveyances, except those to himself immediately, have been proved or acknowledged and recorded as the laws of this country direct, that of course the title remains in jeopardy from creditors and innocent purchasers, and that it is great difficulty that any title can be established at law because the conveyances cannot be given in evidence without parol proof, that some of the witneses are dead, and some of the original conveyances are lost and cannot be found, and he prays that his title may be rendered complete as a recorded title, by the decree of the chancellor.

Banks’ answers, and ^a^stthe Other defendants‘

Equity has jurisdiction parties^6 * ^ through whom the h^itleTy68 deeds lost or not register-to law°toinS execute deods of con-be registered e regís ere .

bills^ancKhe chancellor’s jurisdiction to clear the obstructions6 and settle complicated ’oaiheVfitoS to land.

Banks, the patentee, answered, and against the rest of the aforenamed parties the bill is taken as confessed, after publication made. We shall have occasion to notice the contents of the answer of Banks, or rather of his different answers, as there are several, as we progress with the cause.

The first question made in his favor, is the jurisdiction of a court of equity. It is. asserted that such defalcations in completing a defective title, are generally the fault of the grantees, and that equity will not sustain a bill for such purpose. On this point we will not long dwell; for we cannot doubt tbe propriety of the interference of the chancellor in such case. Equity will frequently interfere to remove difficulties in land titles, where a party can-n°t proceed without difficulty at law, when the conveyances are lost, or in the possession of the opposite party, or where the parties are numerous, and dle Pro°f hard of access, and in many such cases if jjg]1(;en the burden, and settle many controversies and bring then intoji small scope.

And where the title is .purely legal, for such and causes, to those we have enumerated, equi-W bas carved out a branch of jurisdiction, and a class of hills, termed in the hooks ejectment bills, in which not only the title is made clear, but the possession decreed also. No reason is perceived by us, why the present case is not within the spirit of these cases. The difficulties in an unrecorded title, esPecially if it is derived through a long chain of conveyances, is familiar to our courts in this couri-try. The danger to which the title is exposed from two classes of persons, creditors and subsequent purchasers is often great, and the facilities afforded from a title which can be read in evidence without other proof than the authentication annexed, are felt by every one who has to bring his title into court for attack or defence, and the present case will furnish a good comment on the propriety of the interference of the chancellor. As to the default of the grantees in not having their title properly recorded, it may furnish a good reason for taxing them with the costs of renewing the title, provided the defendants make no opposition to a confirmation of title.

Answers of Banks» their UieiTfncon-sistencies as to the execu-deedsof conveyance, alleged in the £e equino* an admission of. them,

Effects of re-stmmenitrto proye prf0P deeds,

The next point relied on, is, that there is no proof of the different conveyances set up by Blight, and that Banks has not admitted them in his answers, taking them in mass. On this point we are unable to reconcile all the different answers put in by him. In the first, he neither expressly admits or denies them, in a second he expressly admits them, but requires his adversary to compound with him, and admit some of his affirmative statements in return, and in a third he goes so far as to say he does not admit or believe they were made or executed. But independent of his admission in one of his answers, it is impossible to read any of them, and not perceive that the writer labored under a weighty consciousness, that the following deeds and documents actually exist and are genuine, to-wit: the letter of attorney from him to Claibourne; the first deed of Claibourne to De Lomerie; the conveyance from Claibourne to Trenchard, and the conveyances from Trenchard to both Burges and David Allison.

In addition to this, the deed of confirmation from Banks and Claibourne to De Lomerie, in 1799, which Banks does not pretend to dispute, not only alludes to the power of' Claibourne, but also in express terms, recites and declares the fact of the conveyance from Claibourne to Trenchard, which had then taken place after the first, and before the second deed to De Lomerie, and there is an express stipulation, that the patentees had conveyed to none Other except Trenehard, in which the part of De Lomerie was excepted, and we may add, that in a schedule rendered by Banks, when he took the benefit of the insolvent laws of Pennsylvania, and which he now sets out and relies on, there is an express acknowledgement of the conveyances from Trench-ard to David and Burges Allison. To this point therefore the title of Blight is indisputable.

Deeds exccti-ted abroad, tered hero618" within oighteen months.

Tbe original Certified^cd-jpy must be produced to tl-ecording 0 loer‘

Banks’ cross the land to'Ct payment of the balance of die pnr-chase money.

The deed of confirmation from Banks and Clai bourne to De Lomerie, was acknowledged in pro pCr tjinc an(] manner before the mayor of Philadelphia, anc* certified by him, under the seal of the corporation, which did entitle it to' record in this State, under our acts Of Assembly; if it had been offered in proper time to the proper office. It was recorded here in due time, that is in less than eighteen months, which has been held by this court, the correct time for conveyances made abroad for lands in this State, under the proper construction of our laws regulating this matter. See Taylor vs. Shields’heirs, 5 Litt. 395.

But we discover that by the certificate of the recording officer in this State; an authenticated copy Die ¿eeth ai‘d not the original was presented to, and recorded by him, which renders the registry of the deed defective, and entitles Blight to come into a COurt of equity to remedy this defect. His own deed is mdcíe and recorded in proper time, and We shall for the present leave the part of De La-meric, till we consider the defects of the other deeds to the remaining part of the land.

As to this sale from the patentees to Trenehard, Banks makes the same defendants to his answer, which Blight had made in his bill, as well as others, and also makes Blight a defendant to his answer, and charges that the land when bought by Trenehard was hot all paid for, and that there was a balance due, and exhibits a bond for upwards of £8000 sterling, with some credits thereon endorsed, executed by Trenehard, Burges Allison and Joseph Barnes, by Trenehard as agent, and lie claims a lien upon the land for this sum, and that if the debt is not paid to him, the land may be subjected thereto, if the title is not released to hint, which lie first requires, and one of the most important questions made is, on this lien.

Admission or silence of a part of the defendants, cannot effect others who have an interest in the facts alleged.

Otherwise, where the other defendants have no interest in the matter confessed.

Where the vendor pursues the land for the consideration money, and a part has been sold to a purchaser, though with notice, the balance unsold shall be first subjected.

We have already seen that the title is established from the patentees to David and Burges Allison, and it has been insisted that as the bill is taken as confessed against the rest, the confession is sufficient as against them, and all concerned. It will be admitted that the confession is clear evidence against the defendants, who are silent, and indeed as to all others, whose interest cannot be prejudiced by the confession.

As the title has passed from Banks and Clai-bourne, it is evident that they have no right to interfere with the fact admitted by the answers or silence of other grantors, unless they shall make out a valid lien, and the admissions of the defendants against whom the bill is taken as confessed, shall operate against his lien, in which case, their silence cannot prejudice hiim

We must therefore, notice this lien. It has no bearing on the part sold to De Lomerie, as his part is evidently paid for, and only applies to the residue of the tract sold to Trenchard.

We shall not notice all the objections made to this lien in argument; but shall barely observe, that although the note itself, has no connexion on its face, or by its face with the conveyance to Trenchard, as the deed is dated sometime before the note, yet the deposition of Burges Allison, which is used, states the note was given for this land, and Banks says in his schedule before alluded to, that it was given for this and other lands sold at the same time. At the time Trenchard purchased this tract, he bought also many other tracts in Harrison county, Virginia, amounting in the whole to about 150,000 acres, which were included in the same deed to Trench-ard. What lias become of these lands, no where appears in this cause; whether Trenchard yet retains them, or whether they are now in the hands of purchasers, either with or without notice, is not shown,and equity would not enforce the lien against even a purchaser with notice, while there way enough of the lands remaining in the hands of the original purchaser to satisfy the demand. On this the lien ought to fall, and it is evident that this bond was given for all.

If all the lands be sold, and in the same situation, they shall be sub- , iected rata-bly.

A lien for the purchase money cannot be enforced against a purchaser for a valuable consideration without notice.

'Deed to such a sub-purchaser, read against the original vendor, claiming a lien, on the bill of the grantee, taken pro confess» against the grantor.

In a bill against the grantors, in a long chain of conveyances, not regularly registered, for a deed of confirmation, it is no de-fence for the patentee, that he had not been Paid’where it appeals ienee, were for valuable noticed °U

The farthest therefore it could extend to this tract would be rateably only, if all tbe lands were in the same situation.

We have already settled the fact of title in David Allison, in two conveyances. His purchase seems entirely unconnected with the purchase of Burges Allison, and there is no proof in the cause, tending to fix notice on him, that Treftchard owed any part of the purchase money. The conveyance to Trench’-ard not only acknowledges payment on its face,, but by a receipt in full, written on the deed, payment is fully acknowledged. David Allison had therefore aright to take the fact of payment as true, and must be presumed to have done so, unless it is proved that he was expressly warned of the contrary. All the part therefore of David Allison, must be held to be discharged from this lien, if it exists at all. For no principle is better settled, than that a lien for the purchase money, which is a creature of a court of equity, cannot be enforced against a purchaser for a valuable consideration' without notice. Blight therefore has a right to read, on the admission made by taking the bill as confessed, all the conveyances from David Allison to him, free from the objection of Banks, who cannot be injured thereby, as he has lost his lien, if any be had, by the purchase of David Allison.

It has been urged in argument, that Banks is only a defendant resisting a recovery against him, and that in this attitude equity will give no relief against him, as to the title of this land, if the money is not paid. If Blight held an equity only, and was endeavoring to enforce it, this might be true. But his situation is otherwise.' He holds the legal estate, and only prays that the evidences thereof may he made more safe and credible than they are- To refuse him any aid because Banks has never been paid, might prejudice him, and could never aid Banks, as he, on his cross bill could not enforce his hen, because none exists. Blight, therefore, being clearly entitled to the share of David Allison, as well as that of De Lomerie, the quantity which supposed lien could reach is greatly lessened, as well as that portion of the debt which could reach it. A

Where the gal title, and °'!b goes to nave a deed confirma-the" defendant 8 cannot resist could not enforce as actor.

La and ^posses™8 sion.

vendor takes personal se-carity for the can-" notafter-wards assert even^pur-^ chaser with notice,

The part of Burges Allison therefore only remains to be considered. He had notice that the debt was not paid, and we need not say, that the commission of bankruptcy against him would destroy it; for we cannot admit that this debt is any lien at all. Difficulties exist against it, owing to the lapse of time, and the presumption against it from that quarter, and it is in proof, that part of the land at least, has been held in possession under the purchase of Trenchard ever since the year, 1795.

But this is not all, Burges Allison was not a part* ner with Trenchard, according to his own testimony, as well as the exhibits in the cause, in the original purchase. He was then unknown to Banks and Claibourne. He after wads agreed to become interested with Tx’enchard, by contract with him, and Claibourne accepted hjm in the bond in all respects as a security! Barnes also has his hand and seal affixed by Trenchard, which was designed ás a farther'security. But whether Trenchard had or had not authority to do this, we need not inquire. The security of Burges-Allison is enough. The se-curily of a bond from the purchaser alone was held aufficient formerly , to destroy the lien. This has since been often overruled; but it is still maintained by all the cases, that personal security removes thelien, and that by accepting it, the seller waives . the lien, and others knowing this, may purchase with safety. Another fact renders it evident that Allison was a surety. As ¿we have observed, the bond was given for this and other lands also, in which Burges Allison had not the most remote interest or claim. Why then did he unite in the bond to secure more than what he himself owed, if it was not as surety for Trenchard. Nor will the attitude of Banks as a defendant 'not yet paid, against a holder of the legal estate help him in this respect. The application is not made to get the ¡e-gal title from him; but only to renew evidences once existing and held free from any lien which he might have retained. There is then no difficulty in Blight reaching his titles down to himself, on the admission made by the silence of the other defendants. But we may add to this, that the exibits or conveyances from the commisioners of' bankruptcy, down to Blight, are proved by the depositions in the causp,

An order of publication, directing the advertisement eight weeks, hut ii fact published for two months, is sufficient. 1

Depositions filed under the agreement with Lewis.

We are aware that exceptions have been taken to the orders of publication. In the original record they may not be complete; but they are shown to be so by the additional record brought up by certiorari. One of the orders, it is true, directs the insertion to be made by the editor, eight weeks only, instead of two months, and it has been frequently held by this court, that proof of insertion for eight weeks only, is insufficient. But the proof is clear that the order was, in fapt, inserted two months in succession, and it has never been held, that if the order said eight weeks, it vitiated the publication made . the proper length of time. The note of the time of insertion in the order, is designed as a direction to the printer, and is not essential to the validity of the order, and if the printer, knowing that this direction to insert it, is not long enough to comply with the law, shall continue the publication for a sufficient length of time, no reason is perceived for holding the publication defective.

It has also been urged, that as all the bills were dismissed in the court below proforma, and an agreement added to the decree, that the cause should be tried here, and the same objections be made to evidence here, as could have been made in the court below, the depositions to which we have alluded as proving the exhibits, cannot be read, because they were taken to be used in another cause and another court, and copied and tiled here, and that Banks has never agreed that they shall be read.

But there.is an agreement made that they shall be read iiere by another party, which it'is insisted, must be extended to Banks.

History of Lewis’ claim.

Suits, decrees and agreements between Banks and. jL,ewis.

This introduces another character or party, not heretofore noticed, and we will proceed to give a succinct history of his claim and standing, and with this objection ,to the deposition, consider the pther questions azdsing out of his case.

Banks appears to have drawn an order jn favor of Abraham. Morehouse for $50,000, tp be paid in lands in Kentucky, on his agent Cuthbert Banks, residing in Kentucky; Cuthbert Banks discharged part of this order in lands, the balance was assignee! by Morehouse to Ia. H. N. Tot Bastrop, who applied to Cuthbert Banks, the agent, for the payment thereof, and Cuthbert Banks, by articles of agreement or executory contract, in the year 1800, sold the tract now in contest, with othérs, tp Bastrop, who immediately, or in the same year, mortgaged them to said Morehouse, to secure him in the payment of a sum of money expressed in the mortgage. On this mortgage Morehouse filed his bill against Bas-trop in the late Danville district court, and obtained a decree of foreclosure and .sale, at which John Blanton bought this tract of 113,482 acres. The executors and heirs of John May having a judgment against Blanton, sold this tract of land by execution against him, and Thomas Lewis became the purchaser thereof, asid obtained the conveyance of the sheriff.

Lewis then filed his bill in the Hardin circuit court, against Henry Banks and Claiborne, to compel them to convey the title, and having advertised against them as non-residents, obtained a decree for the whole tract, and a conveyance was accordingly made to him, by a commissioner appointed by that court. Henry Banks, some tiine after this decree, filed his hill of review, to set aside this decree of Lewis, and at the hearing thereof, the same court reversed and set aside this decree at the prayer .of Banks, and annulled the title of Lewis. Lewis and H. Banks then made an adjustment of their controversy, in which H. Banks released all his title in this tract to Lewis, and agreed that the decree on the bill of review should be set asidp, and the first decree reinstated, which was accordingly done by the court.

Lewis introduces himself into this cause, and is made party.

Slight’s amended bill against the representatives of Lewis and Banks.

Lewis’ and Banks’ answer to Blight, exhibiting their partnership agreement.

Lewis’ agreement to the reading of the depositions, held to be obligatory on Banks.

This latter proceeding took place pending this suit. Lewis appeared in this cause, and prayed to be made a defendant or a party thereto, which was granted to him, and he filed a cross bill against both Blight and Henry Banks, praying that each might be compelled to convey and release their title to him, whicli was' answered by both H. Banks and Blight, and this was tried and decided by the same decree, which we are now revising, and the bill of Lewis was dismissed; he having previously departed this life, the suit was revived in the name of his executors and devisees.

Blight, on discovering the friendly manner in which H. Banks had released his titlc to Lewis, and ratified the decree, which had been reversed in the bill of review, filed an amended bill in this cause, suggesting that both H. Banks and Lewis had entered into a combination to defraud him, and that an article of agreement to that effect, and for the purpose of embarrassing his title, existed between them.

In their answer they exhibit the article in which they agree .that Banks had conveyed all his title to Lewis, and that their claims should thus be united, and that they would sell the land and divide the proceeds equally between them, so soon as, by their united effort, they could defeat Blight in this suit. In the same article it is stipulated that the whole control and management of this suit shall be given up to Lewis, in as strong terms as can well be expressed, and all that Lewis had done or should do in the -cause, was ratified and declared to be binding on H. Banks.

Now, before this time Lewis had made an express written agreement in this cause, that the depositions now objected to, should be copied, and filed, and read in this controversy. This agreement must have been known to Banks at the time he solemnly submitted his case to the management of Lewis, and conveyed to him. Indeed, by this agreement Lewis or his devisees must be taken as H. Banks himself. They hold the title of. Banks, such as it is, one half for themselves and the other half as trustee for Banks, except certain parts which Lewis had preViously agreed to part with to others, which he reserves wholly for himself. Of course, if these depositions can be read against Lewis, they can he read against Banks also, for his claim, as well as the fate of his case is vested in Lewis, by his own act, yet binding upon him,

Banks’ eroga against sentatives of Lewis; their answer, and tacase on the controversy with

Vendor, who after his con-^5 chiim^o the land, and sells and con-other^cannot subject the claim of his vendee and his alienees to sale, for a the consideration money,

It is true, that before this cause was tried, Banks appears to have rued this contract, and files an answer in the nature of a cross bill against Lewis’ devisees and executors, praying that this contract with, and conveyance to Lewis, may be set aside, alleging that Lewis, when he made this contract, had defrauded him, (as he alleges was the case in all his different sales of this land, from that to Trenchard in 1794, to this with Lewis in 1818,) by representing that he, Lewis, possessed and held the claim of Blight. This is denied by the answer of Lewis’ executors, and we do not well perceive how it can ever be proved; because the writings between them expressly shew that neither Lewis or Banks had Blight’s claim, and that they were struggling to defeat it in this suit, and that the design of their agreement was to make their united effort bear more forcibly against it. It is true that this part of this controversy between Banks and Lewis’ devisees is still retained in the court below, to be hereaiter decided, and We are not now to decide it, but are bound to look into it so far as it may have a bearing on the other parties to the suit; and looking into it for this purpose alone, we perceive nothing that weakens its obligation on Banks, or that will prevent ns from considering Lewis as Banks, as he has rested his claim in Lewis’ hands; of course these depositions must be read.

Here we are furnished with another decisive refutation of the lien set up by Banks. He has made a disposition of all his claim, both legal and equitable, to Lewis, totally incompatible with a- decree selling this land for the purchase money. Lewis is tó have certain parts thereof, exclusively to himself, and then is to hold one half of the residue. There is no way of making ibis supposed hen effectual,consistent with bis disposition to Lewis, but to make it operate exclusively on the claim of Blight, and expose it to sale, leaving Lewis to reserve ids claim! as well as that of Banks.

¡Putt iSse°ii 6" to* in dis-fcliarge of hot claims to land! aim

Equity has {orenwTnd simplify the tnvncr’s evi-tie-smd°to*íé-move incum-brances and lated to aiiU" iioy his°jKw-session, add lessen the yal-ue o tie fes-tats.

resist apriorj unrecorded J Subsequent conveyance, must not only have paid the consideration money, but must have obtained a conveyance before notice.

A court of equity will sell lands m discharge oí Jjfeng5 but not claims, without the land, and to offer this land to purchasers, all claims must be brought into market. At all events, this contract with Lewis shows the estimate placed by Banks himself, as weh as Lewis, on 'this lien. He did not esteem it as valuable as a union of strength with Lewis, for the purpose of defeating Blight entirely, and supposed the half of Lewis’ claim aided by his skill, was worth more than his claim on the bond, set up by him as a lien upon the land.

The question now occurs, What is to be done with Lewis and his title. Is lie to be excluded from all participation in the contest, and excluded from it holding his title, Or must he be retained and compelled to surrender it. If he had remained in the same situation in which he appeared, when he voluntarily brought himself into the controversy, he might be excluded; But he, or his representatives llow aPPeai' clothed With the claim of Banks, as well as other claims to fortify it, claiming the land; arid actually disturbing the possession; and Blight has, by an amended bill against him, claimed ^ i-jg rei¡eV<id of this burden on his title also, and that his claivri may be released. To grant this relief against him, is within the jurisdiction of the chancellor. íhe bill of Blight has become in this respect, still more like an ejectment bill, and is framed, not only to renew and simplify his evidences of title, but to remove encumbrances and claims calculated to annoy his possession, and lessen the value of the estate, and he is entitled to this relief, unless something is found in the claim of Lewis to forbid it.

The sale to Bastrop cannot stand in the way; because it was not only long after Lhfe sale to Do Lorn-' eiae anP Trenchard, but was by executory contract only, and did not inaké Bastrop a purchaser for a taíuable consideration, without notice as to Trench-ard and De Lomerie; to do this, it was necessary that Bastrop should not only have paid the price, but have received a conveyance, ignorant of the former sale of the patentees, and the proof shows that he was informed of it.

Sale and conveyance, under a decree against one not having the legal title, docs not affect the holder of th* legal title, not a party;

Sale by execution, a-gaiust Blan-ton, not having the legal title, passed nothing.

Decree oh ■ tained on a publication for eight weeks, is not binding on even the par ties, but is void.

Ratification of Lewis’ claim pending the suit, ineffectual.

Lewis’ claim under the Register’s sale and deed.

The decree of the Danvilíé district court, cannot Oppose this'relief; because the mortgage of Bastrop to Morehouse was of a supposed equity only, and the decree and sale thereon could pass no more. Neither Blight, nor any under whom he claims, were parties to that suit, and cannot be more affected by the decree, than they would by a private sale by executory contract.

The sale by execution to Lewis against Blanton, the purchaser under the decree of the district court, cannot defeat Blight,-or give title to Lewis; because Blanton had at best, an apparent .equity only; and it has been repeatedly held that an equity cannot be sold under ex ecu! ion.

Thé decree Of the Hardin circuit court in favor of Lewis against Banks cannot resist this relief, although it was obtained before the commencement of this suit, because Lewis was apprized of the title of Blight, as appears in the proof, before he received his deed under that decree; and on looking into that record, we discover that the order of publication was not made the length of time required by law, and of course according to the decisions of this court, the decree itself was void, and not binding on the parties thereto, and consequently, it can have no operation on those who were not parties, and Blight, and those from whom he derived title were not parties.

Nor ban the ratification of that decree by Banks, ímd bis conveyance to Lewis in pursuance thereof, defeat the relief prayed by Blight against Lewis; because this was done pending the suit and with the avowed design of defeating its operation.

But as to the part sold to De Lomerie, Lewis sets up a different claim from any heretofore stated. He produces the conveyance of the register of the land office ünder a sale for taxes, as the property of t)é Lomerie, made to Charles Helm, and from Helm to himself, of the whole tract, by the bounds of De Lomerie’s deed. It seems that the tract was listed for taxes in the name of De Lomerie at the quantity of 5,277 acres, the nominal quantity in his deedi One sale was made by the Register, and was returned by him to the Auditor to be 1,900 acres off of the western end, and the sale of that quantity was recorded by the auditor. This return and record, seems to have been since changed to 4,900 acres, and with this, the Register’s certificate recited in the face of the deed agrees. Afterwards a subsequent sale was made of 377 acres, supposed to be the balance Of the tract, and these two sales are combined by a subsequent Register in the same deed, and tbs whole tract is conveyed, by the Register’s conveyance, according to the boundaries of the deed from Banks and Claiborne to De Lomerie, including upwards of 20,000 acres.

Surplus in tracts of land sold in several parcels by the Register, at different sales, does not pass by bis deed’s for the whole tract.

Sale and conveyance of the Register, by mistake, where the taxes had been paid, does not pass the title.

Where there is a variance between the quantity of the tract, returned as sold, by Use Register to the Auditor, and certificate given the purchaser by the Register, the return made to the auditor shall prevail, and his subsequent alteration of his books is ineffectual.

It is evident that the conveyabce of the Register of the whole tract is not good. For waiving the question whether the purchaser would not be compelled to take his first purchase in quantity, laid off first at the west end^ and then his second purchase in its proper place, which would probably be the correct mode, it is clear that the two sales could not be combined, because the conveyance, according to the second sale, ought not to have been made. Blight had redeemed it, and paid the taxes thereon, and obtained a quietus, and it must have been owing to the oversight of the officers that the conveyance was made. This vitiates the conveyance as to the whole tract, and if good for any part, it can only be for the first purchase.

There is some difficulty in ascertaining what that purchase is.

The certificate of the Register recited in the conveyance, who was not the Register who made the sale, is 4,900 acres, while the quantity returned sold by the Register and recorded in the Auditor’s office is 1,900 acres, and which of these is to prevail is the question, As the entry and return of the sale by the Register and record of the officer requir-edly law, is kept in the custody of the officers of the law, and the certificate is kept by the party, and operates as a mere memorandum, directory to the surveyor, and has no validity in passing title, we concede the preference to the record, and conceive it ought to prevail as fixing the true quantity; and although the return of the Register and record of the Auditor has been since changed by the Auditor to conform to the certificate, yet this ohange was not authorized, and we cannot- deem the sale valid for more than 1,900 acres, to be taken off from the westwardly end of De Lomerie’s survey, by a line parallel to the most westwardly boundary, terminating on the Ohio at one epd and the line of De Lom-erie’s survey, which runs parallel to the river, including the proper quantity, and the devisees and executors of Lewis must release all but that boundary.

Query, as to the effect of the Register’s deed inclu-dingtoo great, a quantity of land.

Register’s sale heldprí-, ma facie correct.

Surplus accounted for by the fact of the boundaries, including other superior adverse claims.

Whether the deed from the Register already obtained, as it includes this land really sold, as well as other lands which it ought not to have included, is valid as to the part really sold, we need not en-quire.

But we predicate our decision on this point, on the fact, that so much was really sold, and as there is no evidence impeaching the sale, it must be held as prima facie correct, according to former opinions of this court.

Another objection to granting any relief as to this part of D.e Lomerie, is the extraordinary surplus contained therein, and it is urged that ought to raise a presumption of fraud. We say presumption, because there is no other evidence of the fact. To this we reply, that this presumption is destroyed by its also appearing on the face of the deed itself, that it contains within its boundaries more than the quantity named, and the reason of the boundaries being enlarged is reasonably accounted for by showing that there were other claims in the names of others, within that boundary supposed to be superior, and it is reasonable to suppose that the parties intended to include that'quantityafter these claims were excepted; and therefore they enlarged the boundary, and it.is shown that the quantity convey? ed will not greatly exceed the quantity named, after these claims are deducted.

Blight’s claim held (;he superior.

Trenchard’s contract with Barbour, Barrett and Servantes, to settle the lands by tenants, to bo interested in the paper •town Ohio-pimingo.

Settlepaenls by the tenants under the contract with Barbour and others.

We therefore conclude that the sales, made by the patentees of this tract of land now held by Blight’s heirs must prove successful over all the su bsequent sales and conveyances of the same land, with the exception aforesaid, as they are the oldest and are unirnpeached, and were completed by conveyances of the legal estate, good against all, except two descriptions of persons — creditors and innocent purchasers.

There is still another incumbrance on the title of Blight not yet noticed, which he seeks to remove by an amended bill. In the deed from Claibourne and Banks to Trenchard, the part before sold to De Lomerie was excepted, But Trenchard in his sub? sequent conveyances and dispositions of the land, did not make this exception, and undertook to con? vey the whole, including the part of X)e Lomerie; and before he sold to David and Burges Allison, he laid off a town upon the part of De Lomerie, probably by protraction only, with both in and out lots marked thereon, and also on the same diagram, divided the whole tract into farms of five hundred acres each, and contracted with Coburn Barrett, Henry Servantes and David Barbour, that they should come to the land, or one of them, and bring upwards of two hundred families, who should settle the lands as tenants, or lessees, on an annual rent. Each settler who should settle and faithfully pay his rent for seven years, and clear a certain quantity of ground, was to be entitled to lots in the ideal town named Ohiopiomingo, which, then, no doubt, appeared brilliant on paper; and other privileges were to he allowed them, and to Barrett, Servantes and Barbour, certain portions of land were to be allowed for the performance of the stipulations on their part.

An attempt was made to perform this agreement. David Barbour arrived on the land in 1795 or 1796, with sundry families-, though not near enough to comply with the contract, most of whom settled clown at the mouth of Doe Run, on the site of the town of Ohiopiomingo, and some attempts were made by Barbour to make the requisite leases. Subject to this arrangement Trenchard conveyed to David and Burges Aliison. Most of those settlers became dissatisfied with their new situations, and were disquieted by other claims appearing on the land. As they were from Europe, it is probable that some of them were dissatisfied with the wilderness into which they were led, and foundthem-selves in a country where unsettled lands conld be had in abundance, without rent. They, therefore, began to transfer their possessions to others, until all, or nearly ali, abandoned the enterprise. Barbour staid on th.e land for several years, endeavoring to recruit his settlement. Some of those settled on the land, and that outside of the claim of Do Lomerie, remained thereon, or those claiming under them, till Blight himself entered in Í8Í0; since which time Ire has been possessed by himself or tenants; and now, in his amended bill, he makes Barbour, Barrett, Servantes and some who claim under them, or their representatives, where any of them have died, defendants, and prays relief against these contracts of Trenchard, and requires them to be surrendered, on the ground that the enterprise failed, and there was a total failure on the part of Barrett, Servantes and Barbour to comply with their contract. We perceive no objection to granting this relief also, as this contract is a dormant burden on his title, and may affect the enjoyment thereof or lessen its value, and the proof is clear that the contracting parties only attempted, and utterly failed to comply with their stipulations, and that they have done nothing to entitle them to a conveyance of any portion which they might have been entitled to by a compliance.

Contract with Barbour &c. not having been performed, but remaining a dormant bur den on tho title, is rescinded, and a release oi-dered.

Where the defendants in a bill for a new deed, in confirmation of former deeds, lost or ed, for the purpose of simplifying the title, answers, not resisting the relief, the complainant may have his decree and deed but pay the costs of the suit.

One other question has been made in argument worthy of notice. It is insisted that if Blight, or his representatives, shall be found entitled to a completion of his title by proper registry of conveyances, it ought to be granted at his costs, as the non registry of these deeds was not owing to the grantors. As before observed, if the defendants had have met his application to a court of equity, by a willingness to perfect his title, it would, no doubt, have been equitable to have left the costs on him. But in this case a different rule must prevail with regard to the defendants Banks and Lewis’ devisees and executors. Banks has, by subsequent transfers of this land, embarrassed it to the great prejudice of his ñrst sale. Lewis has bought up one claim after another, still knowing of Blight’s, and' finally they formed a union for the purpose of more effective opposition, and through every stage of the cause, Blight has met with the most decided resistance, until the record is swelled to an inconvenient and unusual size. Under these circumstances we cannot say that either Lewis’ representatives or Banks can escape from the burden of the contesl, unnecessarily enlarged and increased.

Decree dismissing the bills of Banks and Lewis’ devisees affirmed.

Decree dismissing Blight’s bill reversed, and mandate for a conveyance.

■Costs.

petition for a re-hearing.

Upon the whole case, therefore, the decree of the court below, so far as it dismissed the cross bills of Banks and Lewis’ representatives must be affirmed with costs. And so far as it dismissed the bill of Blight, (whose heirs now prosecute it, he having died pending the appeal,) it must be reversed, with costs, as to Banks and Lewis’ executors, and the cause be remanded, with directions to the court below, to enter up a decree against all the defendants, that they release and convey to Blight’s heirs all the tract of 118,482 acres of land, with the exception of nineteen hundred acres, based on the whole extent of the western boundary of De Lomerie’s deed, and extending with bis line eastwardly on one side, and with the Ohio river on the other, till a line parallel to the base shall include that quantity.

Banks must pay the costs of his appeal and Banks and Lewis’ executors and devisees the costs of Blight’s appeal.

Petition for a Rehearing by

Haggin & Monroe.

That all the forms and ceremonies of practice, known and unknown,' should have been strictly observed, and the proof made perfect, touching all the matters of fact controverted in this complicated cause, and in the first instance, must be the effect of rare luck, or very extraordinary skill and assiduity; in so much, that although the opinion seems to have been written with a running pen, no difficulty presenting itself upon any point: yet we trust that upon more mature consideration the complainants have in many instances failed.

Petition for a re-hearmg.

On the subject of jurisdiction. We find that the learned counsel who prepared the bill, was at a great loss to shape its prayer. They who argued the cause for the complainants seemed to have no definite views of the tenor proper for a decree. And so far as our practice or knowledge will extend, it is without precedent or authority. The defend' ants therefore, denied the power of the court. But this honorable court disavowing any doubt on the subject, and the counsel of the defendant being very sensible that their arguments unsupported by cases can avail but little, it is most probable this will stand, as it has been announced from the bench, an ejectment bill. Still as this is the first case, and in a land presenting thousands of titles in like manner perplexed, and leads to a most frightful scene of litigation, we should have been gratified that this honor-bie tribunal had pointed out the analogies, and had not rested content in avowing itself “unable to perceive why this case was not within the spirit of those.” This innovation, however, upon the practice as we trust we are authorized by the opinion delivered to consider it, would not have alarmed the defendants in this cause, had it not been oil owed by a greater inroad upon principle. The rule that he who would ask the aid of the chancellor, must first do equity is expressly, declared inapplicable and laid aside. Baidcs might not have suffered very essentially in being required to convey his lands upon the payment of the price with its interest. But to deprive him of his lands and money too, is palpable injustice. He purchased from his country, paid the price, and obtained a grant. The land was his. In the year 1795, he sold, or contracted to sell, at the sum of £8000. He has not yet been paid, nor has fraud been imputed to him. And now he is compelled to convey his land, or consu-mate the title without value, or the hope of it. For the purchaser or sureties are insolvent, dead or fled the country, it may be the rule, but if it be, the chancellor sometimes lends himself a willing instrument for purposes unfair and iniquitous. That instilution which owes its existence to the necessity of redeeming itself from the hardships incident to the rigid and inflexible rules of the common law, becomes itself most technical, and improves on the outrage. Blight no where suggests a fact calculated to place him in a better attitude than that of the first purchaser. Suggests no fraud, no encouragement on the part of Ranks, that ho should make the purchase. No delusion, no mistake on his own part. We believe he could not in truth, for he is a purchaser of the whole claim of 113,000 acres of laud, for $400, or about that sum in the year IS — , and at that time, Others claiming by contract for purchase under Ranks, were in the actual possession. It must however suffice, that he alleges nothing to better his condition. Left at law under the imperfect state of his title papers, he could only recover so much of the purchase money as had been paid with its interest. Now the consideration is withheld, and the land is decreed. The consideration! paid by Blight is but little more than nominal; yet he probably gets an estate worth 0100,000, at id Banks receives nothing. This is intrinsically wrong. All must so exclaim. And such are our views of the duties of the chancellor, whenever we witness palpable injustice at his hand, we suspect principle has been violated. The sacrifice, in the present case, we do not apprehend to he required by the law of the chancery.

retition for a, re-hearmg,

Most certainly had this transaction remained in bonds, between the original parties, (and it is most clear that Blight cannot claim other advantages,) however absolute the terms, and however satisfactory the security for the price had been in the first instance, yet no conveyance could have been decreed without a payment of the price. The chancellor must answer to every such application, that he only acted upon the condition of,doing justice to all concerned. And could not be tempted to become a partisan. Gratuities and favors, he neitlier dispenses, nor will he coerce. He looks to the consideration, requires that it be adequate and full}'' satisfied. Why then do we dispute about specific liens, the discharge of that lien, &c. &c. The principle for which we contend, applies to all contracts of every character, and in relation to all subjects. The complainant must do equity before he can call in aid the just chancellor. And those questions of lien apply, when the vendor may seek a recovery of his money. Now it is not contended that the purchaser who has stipulated for long credit, and an early perfection of the title, the ultimate payment of the money being secured, shall not have a title. But we do say that so soon as it shall appear to the chancellor, that the money which was deemed secure, is jeopardized by subsequent events, he must hold off until that difficulty be removed.

Petition for a rc-hoaring.

It is however supposed that an attempt to. consúmate the title in this case, essentially changes^ the rule. This were to overlook the .substance of things, and yield circumstances of no worth. In foro conscientice, the man who has obtained a deed for land without price, has no higher claims than one who lias but a bond. And lie who has paid the value, however informal his evidence may be, has equal merit with him who holds the deed. At law these solemnities, and estoppels avail much, but in chancery they are light indeed. If the complainant has deeds sufficient to recover the land, possibly 'the court would not cancel them upon any state of case which Banks could prove. Then let his hill be dismissed without prejudice. This is the plain and common, anduniversallcourse. Let him sue at law, and make the most of his title. Perhaps Banks will defeat him, and he may find it expedient to close the transaction upon just terms. No, says the court, it is wrong to dismiss Blight’s bill, because they couklnot decreefor Banks. A rare conclusion. In direct opposition to the most general and familiar principles. Then the rule should not be to inquire into the equity of the complainant, but what Would he the pretentious of the defendant, should be change sides. Then no bill should be dismissed without prejudice to the complainants remedy at law, but however imperfect his equity, the court should weigh it in the scale with his adversary, strike the balance, and close the contest. We trust it will be found an invariable rule in equity to refuse relief to the complainant upon any other terms than that he shall do what is fair and equitable on his part.

Petition for a re-hearing.

The court howdvfer seems to find some consolation for the hardships the defendant may suffer in the estimate which he put upon his claim, as evidenced by his contract with Lewis. There he was willing to take half. The remark we had not expected. We knowr that counsel sometimes indulge in such allusions. Their motive is obvious. Yet we have still understood it to be the province and the duty of the court to decide upon rights as they appear in proof, and not as they may be appreciated by the parties. It appears that Blight paid but four hundred dollars for the adverse claim, and from this perhaps the inference might be drawn, that he was also to pay Banks his £8000 with its interest. But suppose it had been shown that he paid, and only expected to pay $¡400, and that he had agreed to give his lawyer or some speculator, one half the land which he might recover, as a compensation for bis services in superintending the suit. Yet none who know this court, we presume, would venture to say, that this fact will prejudice the cause of the complainants, or his attorney or agent.

We do not consider Blight as having proved his claim of title. Banks may successfully resist any claim except from those who shall show a purchase from him. This is to be done as every other fact, by proof;by deeds, depositions, &c. and in taking depositions, it is his privilege to cross examine the witnesses. And because this privilege cannot be exercised in the preparation of answers, the answer of one defendant in chancery cannot be used in evidence against another. Whenever therefore, a complainant would avail himself of the testimony of one defendant, he must obtain leave, and take his depostion. Thus are the authorities in regard to answers. But we think there can be much ie=s said in favor of giving the bill in evidence against one defendant, because another has not answered it.

Petition for a re-hearing,

Before the act of February, 1815, 1 Dig. L. K. 61. Neither of the complainants could have maintained his bill against the unknown heirs of the several persons alleged to have been interested in the title to this land, all of whom are necessary parties,

This statute authorizes the suit, but it expressly makes it a condition, “that such complainant before the emanation of any process, or making any order agaiust such heirs, do file in the clerk’s office, with his or her bill, an affidavit, stating that he or she does not know the names of such heirs.

The want of this affidavit made the bill demura-ble, the decree liable to be set aside, or reversed, on an appeal or writ of error.

In the case of Hynes vs. Oldham, fall term, 1826, page 267, this court says, “such an affidavit is expressly required by the act which authorizes a bill in chancery to be filed against unknown heirs, and the want of it would be undoubtedly fatal on demurrer, and even render the decree erroneous; and liable to be set aside, where it has been, as in this case, pronounced upon the bill taken for confessed, for want of an appearance of the defendants.”

If a decree had been rendered by the General Court for Blight, giving him the relief he prayed, it would have been “erroneous and liable to' be set aside.” And if so, it is respectfully insisted this court will not reverse the decree dismissing his bill — - Except it be merely because the dismissal is absolute, whereas it may be said it ought to have been without prejudice; but in such a reversal no costs will be decreed. Galloway and Hamilton, fall term 1826, page 270, and many other cases.

In the mandate, the court has directed a decree to be rendered, that all the defendants, including, of course, all the unknown heirs, release and conyey to Blight’s heirs all the land except the nineteen hundred acres. And yet if the counsel understand the case of Hynes against Oldham, had such a decree been pronounced against these unknown heirs on the hearing in the General court, it would have been erroneous and liable to be reversed or set aside. These unkown heirs are appellees in Blight’s appeal.

Petition for a se-hearing.

There is an affidavit of one of Blight’s counsel, made on the filing of an amended bill, and a bill of revivor against Richard Claibourne, stating that the persons and names of the heirs of Claibourne were unknown to him, and he verily believed they were unknown to his client, Samuel Blight. And there is another affidavit of another of Blight’s counsel, swearing without qualification to an amended bill, in which it is alleged the heirs of Clibourne, and a number of other persons were unknown to the complainant, but that they were all non-residents of this state.

The- statute prescribes the proof the court shall require before it proceeds in a cause against the unknown. It says the complainant shall swear, he or she does not know. The reasons are so obvious and unanswerable against such a departure from the unambiguous law as would be required to permit a lawyer to swear, in his client’s stead, to his client’s ignorance of a fact, that is not believed it would be respectful to the tribunal to dwell upon it. It is presumed, the objection, for the want of the complainant’s affidavit escaped the court; we are sure the court has not taken those of his lawyers as a substitute for it.

The orders of publication against the absentees who have not answered, are insufficient; the publication of them, and the evidence thereof, we would respectfully insist, are all insufficient.

As to the orders of publication, Blight never obtained but two; at all events he never attempted to publish more. The first, was when he filed bis original bill in tbe Hardin circuit court, at the April term 1814, (before the passage of the ¡aw author-king the proceedings against the unknown heirs.) This order is against H. Banks, R. Ciaibourne, J. Trenohard, the heirs of D. Allison, B. Allison, the heirs of W. Shannon, Will. Tilghman, J. Hop-kinson, Thom as Compton, Samuel Jones, James Ewing, J. Keighan, J. Fries, Guy Bryant, John Lisle. This was for eight weeks. The other order was obtained in the General Court, January term 1825; and is against the unknown heirs of said Ciaibourne, Trenchard, D. Allison, B. Allison, William Shannon, Thomas Ewing, Samuel Jones, J. Keighan, and new parties introduced after the original bill, David Barbour, Colburn Barrett, Ilenry Ser-vantes, Pierre Louis Philip GalbottDe Lomerie, omitting the following, who are included in the first order, William Tilghman, Joseph Hopkinson, Thomas Compton, John Fries, Guy Bryant, and John Lisle.

Petition for a rc-Uearing.

We would insist the first order is defective, in not directing the publication to be made for two months, and in expressly requiring it to be made for eight weeks. It seems to us, it had better been wholly silent as to the publication, and left that matter with the complainant and printer.

To prove the insertion of this order in the newspaper for two months, an affidavit of an individual is relied upon. We object to its competency. No statute authorized the justice to administer such an oath, and no usage of equity allowed any such proofs. But the other day, a cause was reversed, because the only proof of the service of a subpoena was an affidavit of a private individual, that he had executed it by delivering a copy made before a justice of the peace, and filed in the record. If this objection could be gotten over, the affidavit does not prove enough. It is sworn to in Breckenridge on the 22d day of July, 1814, four days after the commencement of the July term, on the first day of which, the order required the absent defendants to appear, and it only states, that the order had been published in nine newspapers since the last term of the Breckenridge circuit court, one in each week successively. It does not say these njne papers werp all published before the commencement of the then current term of the court. One may have been published on the Tuesday, Wednesday, Thursday or Friday of the first week of the term and yet the affidavit be strictly true. And if the lust paper had been published even the Saturday before court, and each of the others on the same day of the eight preceding weeks, there were yet not two calendar months from the publication of the paper in which the order was first inserted to the first day of the July term; it would be only fifty-eight days; the case of Miller against Hall and Hanks, 3d Monroe, case 85, page 242 is conclusive. For the same uncertainty as to whether the publications had been made prior to the term, the absentees were required to appear, the decree is reversed. And the court refused to enter into any construction of the affidavit but held the complainant to a strict compliance with the law.

Petition for a re-hearing.

As evidence of the publication of the other order, there is h certificate of Amos Kendall, who stiles himself one of the editors. The law requires the certificate of the printer. We think the printer of a paper and the publisher of a paper may he, and are in fact, frequently, very different persons from the editor; and as the law has given this credit to the certificate of the printer and not to the editor, we do not think the court ought to extend this innovation on the common law and usage. It is a rule of construction that the common law shall not he repealed, but by express enactment or necessary implication.

'The title of De Lomerie, we would again respectfully insist, passed to Lewis, by the sale of the Register of the Land-Office. The court decide that he acquired by the conveyance to him, all the land embraced by. the lines of the deed, though the quantity is called but 5,277 acres, and it appears there are actually included within the line, twenty thousand acres and upwards. And as we understand the record, the same tract of land conveyed to De Lomerie, was sold for the taxes, by the two sales, upd passed by the Register’s deed.

Petition for a re-hearing.

We would make no remark on the answer, of Banks, but for regard for the feelings of that gentleman. We do not understand him at any time to acknowledge that the deeds aré genuine; but confiding in other matters of defence, he was willing to admit the deeds, if those facts were conceded to him. The counsel of the complainant understood him thus, and not willing to grant his terms, presented an amendment requesting an explicit answer. And he then expressly negatives the instruments. Still he is supposed to labor under a weighty consciousness of their truth. But the deeds are said to be proved by depositions taken in another suit, copies of which are filed in this. There Banks was no party. An order of peculiar caution was made on the calling of this cause by consent. All documents and proofs were excepted to, and every exception reserved to be made with full effect in this court. And a decree was pronounced by consent, with a reservation of every right.

Whatever testimony should have been rejected in that court must now be excluded.

Banks is not bound by depositions taken between others. This is acknowledged. But it is relied that Lewis made an agreement to read them, that Lewis became agent of Banks, by a subsequent agreement, in which Banks affirmed that arrangement. And that Blight filed his bill and compelled the production of the agreement between Banks and Lewis.

Now this supposed agreement between Lewis and Blight is not proved, nor do we find that it was ever recognized by rule of court; nor when it was deposited among the papers. We do not admit it binding on Lewis, it is certain a bill in chancery was filed, calling forth an agreement between Lewis and Banks. The object not very distinctly avowed. But let it be, that it was to give effect to aside bar arrangement, for the reading of irregular depositions. Truly a singular bill. In all other cases, unless the parties assent in court to informal testimony, the court rejects and requires the defect shall be supplied. May we not presently have bills in. chancery to continue suits. The papers, however, are brought forth. And it does not appear when this alleged arrangement between Blight and Lewis was filed; nor that Banks ever saw or heard of it; nor ever approved .or disapproved. He did constitute Lewis his agent, to prosecute and defend suits, and expressly bound himself by agreements of Lewis, made or to be made for a compensation of his attornies &c. &c. We do not believe any thing can be found in those writings in any shape referring to the agreement between Lewis and Blight, about those depositions. Presently, however, Banks and Lewis assume cross attitudes and thus continue. We say that when this arrangement was entered into, Lewis had no authority from Banks. That -the writing expressive of that arrangement does not purport to bind Banks; that Lewis, at no time after he acquired power from Banks, did any thing calculated to bind Banks; and that Banks, if it be genuine, neither knew or approved of it. Iiow can they be read against Banks. A rehearing is, therefore, respectfully solicited.

Petition for a to-hearing.

Equity ha.s jurisdiction to order noiv deeds of conveyance to be executed, where the oi-iginals are not registered, that they may be re-protect the estate from the creditors grantors,

Judge Mills

delivered the opinion of the Court on the petition for the rehearing.

In pursuance of the petition for a rehearing, we have revewed the former opinion in these appeals, as well as re-examined the extraordinary and confused record, and do not feel willing to retract a single principle before advanced. The opinion, it is true, is written with a “running pen,” and indeed, necessarily so, lest the long detail of facts necessary to be recited, when added to a lengthy discussion of the principles involved, should swell the opinion to an extraordinary length.

-Our attention is again invited to the main points, to-wit; the jurisdiction of a court of equity over the bill, and the lien claimed by Blanks upon the land. It is true that bills to make legal titles which are valid against all the world, except two description of persons, recorded titles, and thus to protect them from creditors and innocent purchasers, have not been frequent. But if such bills cannot be allowed under one state of conveyances, it must certainly be said that there is a defect of justice in our country. A court of common law can give no relief in such a case, and if equity cannot do it, then is the case a hopeless one.

auufileTde feotive in for-mslitios, sup-kjgal Titles'* where the ’ evidence cannot bo adduced in the court",°0° take jurisdiction, merely to tiTiTitvof” suits, or clear an entangled

it is no de-fence for the Cajnst The" bill of the re-mute alienee, Brought for a £o recorded* that he had’ not r-ceived ™LraiJc1hL?<L it appears he had taken attitude of .gives the party in such case 110 acl" Vdn ag

If, however, the principles which govern courts of equity are examined, it will be found that there are many circumstances in this case, independent of defective conveyances, which sustains the jurisdiction, Courts of equity will aid titles defective in the formalities of law, supply deficiencies, and even enforce legal titles, where the evidence cannot be got at, in a court of law, and even where it can, if many suits can be prevented, or where the title is much entangled, equity will entertain jurisdiction of the matter. If these and other principles of the jurisdiction of courts of equity are scrutinized, and this record is examined, the mind must be sceptical, which still contests the jurisdiction.

As to the lien claimed by Banks, it is still less tenable. He had personal security, and the present holder of the legal estate is an innocent purchaser, Liens of this nature do not follow unregistered more than registered conveyances; and why must he have his lien, when he is not asked for a title, hut to furnish those who claim under him with a recorded deed? Barely it is said, because he is a defendant. If he be a defendant must he be per-mised to do iniquity, before he does equity. A sells to B a tract of land, and conveys it by an uure-corded deed, but takes personal security for the price. B sells to C. who is ignorant that any thing is due to A, and also conveys by an unrecorded deed; C loses both deeds, and comes into a court of equity, to be relieved from the accident; A refuses relief till he shall pay him the.price of the land; not on the ground that he has any right to it in law or conscience lrom O, but because he is a cieiendant, and C, because he is complainant, must suffer gross injustice; must with his deeds lose the price of the land. To state such a proposition refutes it.

It is insisted that we ought not to bind Banks by the agreement of Lewis to read depositions admited by Lewis, because the written agreement of Lewis is not proved, and this is insisted upon, because the cause under the agreement of the parties, is to be tried here as it would have been in the court below. We might almost as well be told that we ought not to admit bills or answers, unless they were first proven to be genuine. If the parties have supposed that this consent could give original jurisdiction to this court, they were mistaken. A written agreement touching the management of the cause, filed by the parties and signed by themselves or counsel, where the court below knows the band Writing, or can bring the parties before it, are read as much in causes as the pleadings, and if it is to be questioned here, and the original papers are to be brought up, and their genuineness to be here proved for the first time, by living witnesses or new depositions, then we would be converting this court into one of original jurisdiction, and we disavow such a power. We conceive the depositions are admissible under tills agreement, and that both Lewis’ representatives as well as Banks, under his agreement with Lewis, are bound by them, and the agreement was not questioned below.

An agreement of parties filed in the circuit court touching the management of a cause, and there used, regarded and given effect here.

It is not necessary in a bill by a remote alienee of the paten-tee, for a renewed deed, to be registered, that all the intermediate grantors and grantees be parties, if their deeds he proved.

But various objections are taken to the orders of publication, as not authorizing the bill to be taken as confessed against absent defendants, and that without the confession, many of the intermediate conveyances cannot be read against Lewis or Banks, it is true the opinion is expressed that the silence of the absent defendants, or their tacit confession might be used against Lewis and Banks, so far as they had no interest affected by the confession, and so we still suppose. But on a more critical examination of the record and the decree rendered, it will be found not necessary to resort to this principle, except with regard to one single conveyance. It. ought to be recollected that these absent defendants are not complaining, nor are they appellants, but it is Lewis’ devisees and Bardes who complain for them. As the whole of the conveyances, to be used from these absent defendants, pass the legal estate, and the objection is, that they are not recorded, it is not necessary that these absentees should be before the court, except to have the benefit of their confession, or to procure renewed conveyances from them, if the complainant should choose to proceed against them for that purpose. But if the proof shews that these conveyances, to and from these absentees, were executed, they cannot be necessary parties before relief can be obtained against Lewis and Banks. One objection is, that the confession obtained by the complainant, is by order of publication against unknown heirs, when there was no affidavit made by the complainant, but only by his ottorney or agent, to obtain these orders. We will see how many of these unknown heirs were necessary parties.

Deeds of the intermediate parties, how proved &c.

In the first place the unknown heirs of De Lome-rie are in this publication. They were unnecessary, because Blight has a conveyance from De Lomerie, recorded in due form of law, and the conveyance to De Lomerie from Banks and Claiborne is admitted.

The unknown heirs of Richard Claiborne are next. They are also unnecessary, because Claiborne, after his conveyances to De Lomerie and Trenchard, conveyed the whole tract to Banks, by deed duly acknowledged and recorded in the Bards-town District Court, within eighteen months after its sealing and delivery, which was in due time, and places Banks in the room of both himself and Claiborne. This conveyance was not noticed in the original opinion, as not supposed necessary; but it leaves the complainant in a situation to omit him as a necessary party. .Trenchard, David Allison and Burges Allison are next, whose heirs are called upon as unknown. These conveyances as stated in the original opinion as admitted. Shannon remains as to David Allison’s share of the title, and his unknown heirs are among the number. The conveyances from David Allison to him, and from him to Bryan, Lyle and Fries, are both satisfactorily prow ed, and as to Bryan, Lyle and Fries they have conveyed to Blight by deed duly recorded., and they were, therefore, unnecessary parties.

Ewing, Jones and Keighan age the remaining decedents, whose unknown heirs are involved. By examining the conveyances from Ewing and Jones to Keighan; from Keighan back to them; from Ewing to Jones, and from Jones to Blight, it will be found that they were all acknowledged before the Mayor of Philadelphia, and recorded in the general court of this State, within the time prescribed by law, and there was no need of bringing either them or their heirs before the court.

Certificates of publication of orders against absent defendants, ivliat certainty required.

Editors, whether the printers fr not may make such certificates — See the statement of the facts, in the petition, page 218, and the reed'd of the pase.

Want of an affidavit of the complainant, that he does not know the names of the persons sued as unknown heirs is error, —such affidavit can be made by none but complainant, unless it appear why he could not make it: —query, as' •to what would excuse him.

The only remaining conveyance, is that from Compton, Tilghman and Hopkins to Ewing and Jones, the genuineness of which is not proved, and which is recorded properly, except as to the time, and the execution of it must, therefore, rest on tlieir confession by their not appearing. They are living defendants, and against them publication has been made.

The affidavit that the publication has been made, has been objected to, because it was made after the appearance day, and one of the nine insertions in the paper proved by it, might have been after the day of appearance.

If this affidavit is wholly disregarded, a minute examination of the record will disclose, that there is other proof of this publication, made by the editor of the paper, that the order was properly inserted. This permits the complainants to avail themselves of this conveyance.

But on re-examing these orders of publication, as to the unknown heirs of Trenchard, Barrett, Serv-antes and Barbour, for the purpose of setting aside the leases and contracts between Trenchard, on one side, and Barrett, Servantes and Barbour on the other, (a branch of the case with which Banks or Lewis has no concern) we conceive that the order is insufficient, because there was no affidavit of the party to warrant it, and no reason shown why he was incapable of making such affidavit. It follows therefore, that the complainants below, will not be entitled to such decree against these unknown defendants, on the return of the cause, as the original opinion directs, until these parties are brought be-' fore the court by p Co per publication or process, if the complainants shall see proper to proceed against thenr.

Decree by consent, held to be a decree between only the parties who had appeared, excluding the absent defendants.

Correction of the mandate,

Talbott and Darby, for Blight’s hiers; Haggin and ¿Mayes, for Banks; Monroe, for Lewis’ executors.

Upon a further examination of the decree .brought before us for revi.son, we conceive it did not dispose of the cause finally, as to those absent defendants, although the cause came on to be heard as to them. The decree that was rendered, was by consent, and it was agreed that that consent should not prejudice the rights of the parties'on an appeal. As the absent defendants were not there to assent, and all that was done was by consent, nothing is done yet as to them.

Their cases, therefore, or as many of them as the complainants may see cause to proceed against, for releases or other relief, are left under the power and direction of the court below.

So much, therefore, of the first opinion as conflicts with this, is set aside, and the former decree and mandate of this court, is to be so amended, as to direct only Banks and Lewis’s executors to convey the land as in the first decree is directed. The residue of the petition is overruled.  