
    John Nesbit, v. John Brown, Ex’r of Hugh Montgomery.
    From Rowan.
    A bill should cor.taiu only a statement of facts on which the Plaintiff’s case is founded, not the evidence of those facts -, therefore, when lapse of time forms no bar to the claim asserted, but only raises a presumption of fact inconsistent with it, the lapse need not be accounted for in the bill.
    It seems, in such cases, that the lapse of time should be relied on, in the answer, as a defence.
    When one sells the land of another, setting out the title of the latter, and eovenanting against it, no estate passes by the deed, and a second vendee cannot sue at law, in his own name, on the covenants.
    When a vendor covenanted, in case of eviction, to pay double the purchase money, and also all damages, held this to be a penalty, not stipulated damages, and the purchase money and interest only could be recovered.
    The original bill was filed in 1803, and alleged that ono Jlndrew Cranston, in February, 1758, conveyed to Mary Montgomery, the daughter of Hugh Montgomery, a lot in the town of Salisbury. That Montgomery and his wife, in April, 1762, in consideration of sixty pounds, conveyed the lot to one William McConnell, with covenant of quiet enjoyment, against the claim of Mary, and for further assurance from her, and also “ that in case the said Mary, her heirs or assigns, should at any time thereafter enter into the said bargained premises, so as to dispossess the said William, his heirs or assigns, that the said Hugh, and Mary his wife, their heirs or assigns, should return and pay back double the purchase money with interest, and all damages that the said William, his heirs and assigns may suffer thereby.” The bill then aver-ed that McConnell, in August, 1762, conveyed the lot to the Plaintiff, who took possession thereof; that Mary Montgomery not only refused to assure the title of the Plaintiff, and had died without so doing 5 but that Anthony Newman, who intermarried with her, had by course of law, turned him out of possession. That Me-Connell died insolvent and without personal representatives, and that Hugh Montgomery, died in 1778, leaving the Defendant his executor. The bill prayed general relief, and that the Plaintiff might recover of the Defendant, the price of the lot.
    The facts as set forth in the bill, were not varied either by the answer or the testimony ; from the latter, it appeared incidentally, that the Plaintiff had sued at law upon the covenants in the deed to McConnell, and that the suit was decided agaiut him as late as the year 3 800. (vide Taylor’s Reports 82.)
    
      Murphey and Mash, for the Plaintiff.
    No Counsel appeared for the Defendant in this Court.
   Henderson, Judge.

— When this cause was first opened, 1 thought, that the great length of time which elapsed after the eviction, before the filing of this bill, formed a bar; but on reflection, I am satisfied that it does not. Lapse of time is matter of defence ; and in cases suck as this, where lapse of time is of itself no bar, hut affords a presumption only, of a fact which is a bar, it is not cause for demurrer,- but in cases where lapse of time of itself forms a bar, as in cases where the statute of limitations may be pleaded, then it is cause for demurrer, according to the ¡ate English decisions, recognised ar-guendo, in this Court, in the case of Falls v. Torrancef at the last term. For, as Lord Thurlow says, the bill should contain the facts, not the evidence j and the reasons why a suit has not been sooner brought is evidence to repel the presumption of fact, which forms a bar, and which arises from such omission. The Defendant, if lie. intended to rely on the lapse of time as a ground of de-fence, should have insisted on it in his answer. The Plaintiff would then have been prepared to repel it, if he could, and the Defendant having omitted to make that defence, affords reason to believe, that if made, it could have been repelled.

The only other objection is, why did riot the Plaintiff filie on his covenant at law ? The answer is, that he could not sue in his own name, for in Montgomery’s deed to McConnell, it is stated that the lot belonged to his daughter 5 and there being affirmation against affirmation, estoppel against estoppel, no estate passed to McConnell by the deed of bargain arid sale. The covenants in the deed were therefore mere personal covenants with McConnell, not annexed to any estate, and did not pass to Nesbit by McConnell’s deed to him, as was decided many years ago, at Salisbury, by the Chief-Justice, in an action brought on this very deed. (Nesbit v. Montgomery’s Ex’r. Taylor's Reports, 82.)

Nesbit’s only remedy, therefore, was in this Court, for McConnell became Nesbit’s Trustee, as to those covenants, when he conveyed the land to him, and in equity, Montgomery was bound to fulfil them to him. As to the agreement to restore double the consideration in case of eviction, we must look upon that as a penalty only, if for no other reason, than the one that is expressed in the deed, to wit, that Montgomery shall also pay, over and above double the consideration, all damages which McConnell mightsustain upon,oroti account of an eviction. There is no pretence, therefore, to say, that the parties have agreed On a sum as liquidated damages, contrary to their express agreement; besides, liquidated damages are favoured no where, and less in Courts of Equity than elsewhere.

The Master will therefore take an account of the principal and interest, from the time the consideration money was paid to the present time, making the sum mentioned in the deed the amount of principal, and adding 25 per cent, to equalize the proclamation money to our present, currency. He will also take an account of assets in the hands of the Defendant. As great lapse of time lias taken place, the Master may state any fact, which, in his opinion, may tend to diminish the interest, or which the parties may desire, he will also deduct the war interest.

Taylor, Chief-Justice.

— This Bill seeks to recover a compensation from the executors of Montgomery, for the breach of a covenant, contained in a deed made by him to McConnell, in the year 1762, for a lot of land in the town of Salisbury, which lot, McConnell afterwards sold to the present Complainant, who claims the benefit of the said covenants as assignee. A great lapse of time has taken place since a breach was committed, and the delay is not accounted for in the bill; but as this lapse is not relied upon in the answer, nor was insisted on at the hearing; and as the printed report of the case at law between the same parties, upon the same covenant, compared with the time of filing this bill, shows that the Complainant has been engaged nearly the whole of the time since 1773, in asserting his right, and that he failed at law, because his legal title as assignee was imperfect, we may proceed at once, to a consideration of the case upon its real merits.

The covenant contained in Montgomery's deed, so far as it afiects the question to be decided, is in these words, tc and further, it is hereby covenanted, premised and agreed by the said parties hereunto, that in case the said Mary Montgomery, her heirs or assigns, shall at any time hereafter, enter into the hereby bargained premises, so as to dispossess the said William McConnell, his heirs or assigns, or break, determine or nullify, or make void the hereby bargained premises, that then the said Hugh Montgomery and Mary his wife, and their heirs or either 0f ebal 1 return and pay back double the purchase money with interest, and pay also for all damages, unto the said William McConnell, his heirs or assigns, whatsoever they may suffer thereby.”

If the Complainant could have recovered at law, and no fixed sum had been agreed on in the deed, the measure of damages would have been the purchase money, viz. sixty pounds, with interest from the 25th of April, 1762; and if a recovery had been made according to the sum agreed upon in the deed, viz. double the purchase money and interest, I conceive a Court of Equity would have relieved upon payment of the first sum. Whatever difficulty there may be in ordinary cases to distinguish between a penalty and liquidated damages, the terms of the covenant have here clearly ascertained that sum to be a penalty ; for double the purchase money is not to be repaid as the probable estimate of damage, McConnell or his assigns, might sustain by an eviction, but it is to be paid in addition to all damages. The parties have not therefore left it to inference or construction, but have fully expressed, that the sum is to be paid as a penalty upon Montgomery, for not performing his covenants— Under this view, there must be a decree for the Complainant for the purchase money, with interest from the date of the deed, and the costs of the suit.

Decree accordingly,  