
    Huntt & Parks vs. Gist, et al.
    
    "W P, being seized of a tract of land called P Z>, ] containing 275 aeres, executed a bond of conveyance to if C* conditioned that he 1 would convey to him all his right,' &c. ‘‘ofyin and to, 120 acres of land tailed P£Jfsituate, an the county of J?, with the apperienances thereunto belonging, or appertaining* now in the possession or occupation of the §aid W P.” On a bill in chancery for a specific Serformance, fee. dd, that there being no designation of the 120 acres of land, nor any , description whereby it could 1>e identified and located, parol evidence is not admissible to show ' that it was intend* ed by the parties that they were to lie laid off at the southernmost part of the tract. 7'hat the bond is void for uncertainty, except on the principle of election, and that there was no evidence to prove that there was any election made by either of the parties anterior to the time of the execution of the depd from W P, for part of the tract des. erihed bv metes and bounds, to one of the defendants who was a fa,ir and bona .fide nuruhas— . ; i | er of the laud conveyed to 1dm, without notice that there was any designation of the 120 acres.
    ■ Appear from a decree of the Court of Chancery. The bill filed by the appellees against the appellants, on the 16th of January 1795, stated that J-HUiam Parks, deceased, was seized ánd possessed of a tract of land in Ballimore county called Turkey Cock Alley, containing 50 acres, which by virtue of a special warrant,- was on the 10th of July 1754 resurveyed for him, and a certificate thereof re* turned into the land office, by which he caused to be added 102 acres of land supposed to be vacant, and consolidated the whole into one survey by the same name of Turkey Cock Alley. That Parks, neglecting to compound for the added vacancy within the time required, a proclamation warrant was thereupon granted to Edward Stevenson, and he, on the 22d of February 1764, assigned the same to Parks, who by virtue of the warrant of proclamation and assignment, on the 28th of the same month, had resurveyed for him the added vacancy before mentioned, excluding seven acres thereof as being within the lines of elder surveys, and upon the resurvey caused to be added the quantity of 127 acres of vacant land, giving to the whole the name of Parks's Death Knot; and on the 5th of March 1764, he obtained a patent on the certificate. That on the 14th of April 1764, Parks executed and delivered to Joshua Cockey, deceased, a bond of conveyance for 120 acres of the land called Parks's Death Knot, by which bond it was, as the complainants believe, intended to se« cure to Cockey 120 acres of the vacancy added on the proclamation warrant, forming the southernmost parts of Parks's 
      
      .Death Knot. That before Parks obtained the assignment from Stevenson, (which was procured by Cockey,) or at the tune of such assignment, it was agreed between 1arks and Cockey, that as Parks was unable to pay the caution money on the certificate to be returned in virtue of the assignment, Cockey should pay the same, and should have, for such payment, 120 acres of the laud, to be secured by the certificate; in consequence whereof Cockey did pay the caution money, and thereupon patent issued, as before stated, to Parks, and the bond of conveyance was given in pursuance of the agreement. That Parks, in his life-time, although he never made any conveyance in pursuance of the bond, always acknowledged the right of Cockey, and always was ready and disposed to make the conveyance. That Parks died about 10 years ago intestate, leaving a son named William Parks, (one of the defendants,) of full age, hjs heir at law, who hath also at different times acknowledged the bond of conveyance, and the equitable right thereby created. That Cockey died some time in 1765, having first duly made his will, dated the 3d of December 3764, whereby, among other things, he devised as follows: “Item. I give, and bequeath to my eldest daughter Penelope Deye Cockey, 100 acres of land, being part of a tract of land known by the name of Parks’s Death Knot, lying in the county aforesaid, which said parcel of land I give and devisa unto her and her heirs for ever;” and of the said will constituted and appointed Thomas Cockey Deye sole executor. That Joshua Cockey left the complainant, Thomas Deye Cockey, his eldest son and heir at law, then an infant under the age of 21 years, and also the other children mentioned in the will. And that after the death of Joshua Cockey, his executor proved his.will, and took out letters thereon, and, among other papers of Joshua Cockey, came to the possession of the bond of conveyance, and kept the same in his possession until the 4th of February 1793, when he delivered it to the complainant, T. D. Cockey, as heir at law of J, Cockey. That Penelope Deye Cockey, afterwards intermarried with Thomas Gist, and she and her husband are two of the complainants in this cause. That Thomas Deye Cockey, one of the complainants, believing that the whole of the land intended to be secured by the bond of conveyance was meant to be devised to Penelope peye Cockey, now Gist, by the will of Joshua Cockey, al-* 
      though only 100 acres are therein mentioned, did on the 17th of January 1794, execute a bond of conveyance; by Winch he bound himself to convey to her, m fee, all Ins, fight, title apd interest, in the said land. That on the 19th of December 1789, Parks, the yopnger, gold and convey- ■ pd papt of Paxks’s Death Knot to J.pb Hun tt, (one of the defendants;) and that the land included, within the metes and bounds in that conveyance, is the south east part of the land intended to be secured by the bopd of conveyance before mentioned; and that Huntt, had fujl knowledge pf the bond, and had seen and read it, and well knew the premises at the time of his purchase, apd before t]ie making of the conyeyance to him. That on the 13th of March 1790, Parks, for the purpose of indemnifying and securing Huntt from all claims ¿gainst the land so; conveyed to him, did by another deed convey to hipi jn fee all the residue of Parks's Death Knot,, yvith proviso that if Parks should indemnify him from all claims against the land first conveyed to Huntt, the last mentioned conveyapee should be void. That on the 10th of April 1790, among the other lands, conveyed to Huntt in fee all the tract called Turkey Cock AD fey, with an exception as to ¿small part thereof, and also all the tract callee] Dqrfys’s Death Knot, excepting 31 acres thereof before conveyed tó Huntt by the deed first herein referred to, and algo excepting 120 acres of that tract, for which the bond pf conveyance was given. That Parks, the elder, at sundry times, and down to the time of his death, applied tó Deye, as executor of Cockey, to pay various assessments and charges on the 12Ó acres of land in the bond of conveyance mentioned, alleging, that as the land belonged to the estate of Cockey, ¿11 charges thereon pught to be paid out of his estate; in consequence of which applications Deye, as executor of Cockey, paid all such assessments and charges as were exhibited fp him by Parks, who acknowledged the bond of. conveyance, and that the consideration of the bond had been duly paid, and frequently offered to Deye to malee hip a Conveyance, of the. jand mentioned in the bond, as'executor pf Cockey, &c. That, in the deed of conveyance last'before referred to, parks, the youpger’, and limit, (the defendants,) have both acknowledged the bond pf’conveyance,’' and an existing right under ap(f in virtue of . the same.' ’’ That Huntt, in pppsequenpe of’ lije conveyances to him from Parks, hatb entered into and taken possession of the land therein mem-, tioned. Prayer, that the defendants may be compelled to convey to the complainant, Penelope Deye Gist, in fee simple, or to such of'the complainants as may be thereto entitled, the 120 acres of land by the bond of conveyance meant and intended to be conveyed; and for other and further relief, &c.
    Exhibit, (among others.) The bond of conveyance from Parks and wife, to Joshua Cockey, dated the 14th of April, J 764, in the penal sum of *.’500, and conditioned a.s follows: “The condition of this obligation is such, that if the above bounden William Parks, and Eleanor liis wife, and each and every of them, and each and every of their heirs, executors, administrators and assigns, dp and shall, upon demand and at the request, cost and charges, of the above named Joshua Cockey, liis heirs or assigns, well and truly convey and assure, or cause to be conveyed and assured untohim, the said Joshua Cockey, his heirs and assigns, for ever, all the estate, right, title and interest, of them the said William Parks, and Eleanor his wife, aqd ííieir heirs, and each and every of them, of, in and to, one hundred and twenty acres of lapd called Pftrks’s Death Knot, situate, lying and being, in the county of Baltimore aforesaid, with the appeytenances thereunto belonging or appertaining, now in the possession or opeppatiou of them the said William Paries, and Eleanor his wife, by such sufficient conveyances anti assurances in the law, as by the said Joshua Cockey, liis heirs or assigns, or his qr their counsel learned in the law, shall ' advise and require; then the said obligation to be void and of none effect, or else to be and remain in full force and virtue in law.” "
    The answers of the defendants stated, among other filings which it is not material to notice, that they weye totally ignorant for what consideration the land wqs to be conveyed, or what part of the land was intended fo be conveyed; and they did pot know or admit that the southernmost or south easternmost parts wqs intended to be conveyed under the bopd of conveyance. That Cockey, or any person claiming under him, neper was in possession of anv part of the land — nor did they ever hear at any time that Cockey was, by virtue of the contract, entitled to the southpnmost or south easternmost part. TJjat Penelopeone qf the complainants, came of full age 15 years past or more, and T. I). Cockey, (one other of the complainants.) not less than 11 or 12 years past. That Parks, the grantor, and after his death, Parks, the son, were willing to comply with the bond of conveyance, and convey to Cockey, or to whomsoever was entitled under the bond, whatever land they were thereby entitled to have cpnveyed to them; but no person chose to come forward and receive a conveyance, or ascertain what part of the land he, she or they, were entitled to under the said contract. That on the 23d of October 1789, Parks, being desirous of selling the residue of the land to extricate himself from difficulties under which he then suffered, did advertise publickly in the Maryland Journal and Baltimore Jldoertiser, requesting any person who was entitled to the benefit of thp bond of conveyance to appear, prefer their claim, and receive a conveyance for the land they might be entitled to thereby. That T. I)., Cockey and Penelope JDeye Gist, were then both of full age, and that neither of them did apply to receive the conveyance, although thus called upon. That Parks was at that time under execution, and had no method of freeing himself therefrom but by a sale of some part of his lands. That he applied to Huplt, and proposed to sell him a part of his lands in order to raise money to free himself from the execution; and in consequence Huntt purchased from Parks the lands mentioned in the deed of the 19th of December 1789, which was then supposed to contain 31 acres, for which Huntt paid six dollars per acre, That the land being found to contain eight and a quarter acres more, he paid for the surplus on the 15th of March 1791. That Huntt was induced to purchase the particular part of thq land described in that deed, because it lay adjoining to lands which he then owned; and the greatest part thereof actually ran in, and lay between, two tracts of land owned by him. That Huntt had seen and knew of the bond of conveyance \vhich had been so executed by Parks, the elder, to J. Cockey, ar,d had advised with counsel as to the effect thereof, and it was by the advice of coungel that he made his purchase. That on the 10th of April 1790, Parks executed a deed to Huntt for the lands, therein mentioned, which was intended to secure to Huntt the payment of ¿388 3 6, then due to him, with interest. Huntt admitted, that on the 13th of March 1790, Parks, 
      executed in due form of law another conveyance to him, the object and intention of which was to secure and guarantee to him the lands first sold to him; that after deducting the lands so conveyed by Parks to Iluntt by the first conveyance, there remained a greater quantity of Parks'a Death Knot, than was contracted by the bond ot conveyance to be conveyed to Cocksy. That they were instructed, that after the length of time which had elapsed since the execution of the bond of conveyance, without the complainants either possessing the land so alleged to have been contracted to be sold to their father, or claiming an execution of the contract, the complainants were not, nor was either of them, entitled to the aid of this court specifically to execute the contract to the prejudice of Iluntt, who is a purchaser for a valuable and bona fule consideration; and they claimed the benefit of the laches of the complainants, and of those under whom they claimed, and of the length of time, as fully and to ail intents and purposes as if they had pleaded the same, and relied thereon for their plea.
    
      Testimony was taken and returned under a commission; and the lands were directed to be surveyed, and a plot thereof was returned.
    Kilty, Chancellor, (July term 1806.) The chancellor is of opinion from the evidence, that the bond of conveyance was intended to secure 130 acres of the vacancy added on the proclamation warrant taken out by Edward Stevenson, and assigned to William Parks, on which a survey was made the 28th of February 1/64, as appears by the certificate returned to the land office, being in the whole 127 acres. And also that it was intended to exclude the part added as the third vacancy, although the third vacancy is returned as containing only six acres. The first and second vacancy added are returned as containing, the one six, and the other ] 15 acres, making together 121 acres instead of 120, which it may be inferred from the evidence they were supposed to contain by the parties to the bond. The complainant, Penelope Deye Gist, is therefore entitled under the will, and bond of conveyance from Thomas Deye Lackey, which are not contested, to a conveyance for that part of Parks's Death Knot, which is claimed by the bill. The part of Parks's Death Knot which was conveyed by the defendant TViUiam Parks, to the other defendant; 
      Job fíuríll,. by the deed óf the fifth of December 1789, was stated therein to contain' 31 acres, and by the mortgage of the Í3th of March 1790; the residue is also conveyed tó him, thereby vesting iii him the lega! title in the Whole; Arid inasmuch as Parks has an equitable title to the’ residue, and by joining in the conveyance for the part conveyed by him to Hunlt will riot be bound to make á general warranty, or be liable to any risk or loss thereby, it is, considered that a joint deed will be the most proper to vest the legal title iii the complainant, Penelope Deye Gist, according to the bonds — Decreed, that the defendants shall, by a'good deed to be executed by them, and acknowledged and recorded according to law, give, grant, &c. to the complainant, Penelope Deye Gist, and her heirs, Í20 acres of land called Paries’s Death Knot, situate, &c; the" said 120 Seres being part of a tract of land restfrveyed for William Parks, deceased, father of William PaJcs, one of the defendants, on the assignment of Edward Stevenson, on or about the 28 th of February 1764, and patented to William Parks, deceased, on or about the 15th of March 1764,• to be laid off as follows, to wit: To include the whole of the first vacancy described in the certificate of the resurvey, to begin at, &c. containing she acres; to include also the second vacancy described in the certificate'of the resu'rvey, to begin, &c. containing 115 acres, except one acre thereof, which one acre is to be taken off by extending reversely the' 16th line of the resurvey on Turkey Cock Alley, on which the proclamation warrant was taken out, &c. And all the estate, &c. of the defendants therein, and which was in William Parks, deceased, and all and singular the hereditaments and appurtenances to the same belonging, or in' any mariner appertaining. And upon the due execution,, acknowledgment! and recording of the deed, tile complainant, Penelope Deye Gist, her heirs and assigns, shall be entitled to hold the said land free, clear and discharged, from all claim of the defendants, or either of them; the said conveyance being in satisfaction of the bonds in the proceedings mentioned. Decreed also, that the defendants, and each' of them, deliver u-p to the complainants, Thomas Gist, and Penelope Deye Gist his wifef the quiet and peaceable possession of the land hereby decreed to be conveyed; and that they pay to the complainants the costs of this suit, &e. Prom this decree the defendants appealed to this court.
    The cause was argued before Chase, Ch. J. Gantt, and Earle, J.
    
      Marlin and Brice, for the Appellants,
    referred to Co. Litt. 145, 2 Bac. Ab. tit. Election, (B) 443. Taylor vs. Stebbert, 2 Ves. jr. 437. Moor, 72, case 197. Hayward’s case, 2 Coke, 36.
    
      Johnson, (Attorney General,) and Hinder, argued for the Appellees.
   Chase, Ch. J.

delivered the opinion of the court. The court are of opinion, that in the bond of conveyance from William Parks, senior, to Joshua Cockey, there being no designation of the 120 acres of land to be conveyed to Cockey, nor any description whereby the same could be identified and located, parol evidence is not admissible to show that it was intended by the parties that the 120 acres were lo be laid off at the southernmost part of the tract of land called Parks’s Death Knot. That the bond is void for uncertainty, except on the principle of elec™ tion; and there is no evidence to prove that there was any election made by either of the parties, or their representatives, anterior to the time of the execution of the deed from William Parks, junior, to Job Iluntt, on the 19th of December 1“89. That Iluntt was a fair and bona fide purchaser of the land conveyed to him by that deed, without notice that there was any designation of the 120 acres to be conveyed in virtue of the bond of conveyance to Cockey, or his heirs. That Penelope Deye Gist is entitled to a conveyance of 120 acres of land, part of the 222 acres of vacancy secured by the proclamation warrant taken out by Edward Stevenson, and assigned to Parks, the elder. Decreed, that Die decree of the court of chan - eery be reversed, with costs to the appellants, and that the appellants, by a sufficient deed or deeds, convey to Penelope Dei)e Gist, one of the appellees, and her heirs, 120 acres of the vacancy of 222 acres, to be laid oil together in one body, if practicable, if not, so as to be most convenient, exclusive of the land conveyed to Iluntt by Parks, the younger, by the deed of the 18th of December 17"89, and exclusive of the land conveyed by Parks to MrabelM Worrell. That the court of chancery niake all necessary oi’ders, and take measures for háving this decree carried into full anil complete effect.

DECREE REVERSED; &C.  