
    Sarah B. Gist, and Others v. William Cattell, and Others, Executors of States Gist, and Joshua C. Gist, Administrator of Independent Gist.
    For the purpose of making partition, and division of an estate, a small portion of the property was assigned to one of three devisees and legatees, and the residue'to the two others, charged with the payment of the debts of the testator. The property assigned to each, was valued, and the debts enumerated, and specified in a schedule ; and the difference between the parties was equalized, by a payment in money. Mutual releases were executed, and bonds of indemnity given: by the one, to the two others, to bear his portion of the burden of any debts, which might be established, in addition to those enumerated; and by the others, to indemnify him against the enumerated debts. A large debt due to the State, for the purchase money of lands, which were included in the property assigned to the parties, who were charged with the payment of the debts, was released by an act of the Legislature, reciting that the consideration had failed. Held, that the parties, who were charged with the payment of the debt, were bound to account to the other for his share of the debt released ; and that, although they would be intitled to an abatement, for any part of the property assigned to them, which they had failed to obtain, to the extent of the value set upon it in the partition, yet the matter of such abatement, and its extent, must be proved, and that a loss of property, of equal value with the debt, was not to be inferred from the release of the latter.
    A clear mistake, in making a partition, and settlement of an estate, as to its liability for a supposed debt, is a ground for opening mutual releases executed by the parties, where it appears that the settlement was not a compromise, or speculation : and it makes no difference, that it is uncertain, whether the mistake were one of law, or of fact.
    A party brought into Court as a defendant, for the purpose of adjudicating a claim set up by him, has the same right to open a release, for error in the settlement of mutual demands, upon which the release was founded, as if he were a complainant, provided the specific errors are sufficiently charged in his answer.
    It is" within the competency of the Court of Appeals, if any claim, or ground of defence, has been casually omitted to be made in the Circuit i Court, to afford an opportunity of trying its merits; and the Court is always reluctant, whilst the cause is in its power, to exclude any appa- ’■ rently just claim, or defence: and where little prejudice can he occasioned by the short delay necessary for the purpose, an opportunity will be allowed for investigating it.
    ' This was a bill for an account of the estate of States Gist, deceased ; but in order to settle the account, it became necessary, ^lat a cla*m upon bis estate, on behalf of the estate of his brother, Independent Gist, also deceased, should be adjudicated : and for this purpose, Joshua C. Gist, the administrator of Independent Gist, was made a party. This claim was as follows.
    Independent Gist, and States Gist, together with their mother, Mrs. Mary Gist, were devisees, and legatees of their father, General Mordecai Gist, of Maryland, and were each of them intitled to one third of his estate. He left property in Maryland, and a considerable estate in South Carolina, where he owed several debts, including a bond to the State, for $8,570, which, it appears, had been executed by him, to secure payment of the purchase money of three tracts of confiscated lands. In the year 1810, the devisees entered into an agreement, for the partition of the estate, and a settlement of their respective interests in it; by which agreement, the property in Maryland, was to be assigned to Independent Gist, at a fixed valuation, and the estate in South Carolina, whiph was also valued at a fitted sum, was to be assigned to Mrs. Gist, and States Gist, who were to pay the debts in South Carolina. Mutual conveyances, and releases, were executed pursuant to the agreement; and a schedule of the debts, which amounted' to $12,616, including the bond to the State of South Carolina, above mentioned, was annexed to the instrument executed by Independent Gist, and the conveyance and release was made subject to the payment of the debts enumerated. The property assigned, to Independent Gist, fell short of one third the nett value of the whole estate, after deducting the amount of the. debts ; and the difference wap paid to him, in money, by Mrs. Gist, and States Gist, so as to make their respective- shares exactly equal. A bond of indemnity Was exécuted by Independent Gist, to his mother, and brother, with- a condition to. pay one third of any debts, which might be established against the estate, in addition to those enumerated in the schedule ; and they also, executed a.bpnd to.indemnify him against the enumerated debts.
    Among, the estate in South Carolina,, which was included in the conveyance, and release, of Independent Gist, to.States,Gist, and Mrs. Gist, was the following : “ Eight hundred and fifty-four acres of land, on the south side of Santee River-; also, seven hundred acres in York District; and one hundred and forty-three acres near Beaufort: which said tracts were heretofore purchased by General Gist, from the commissioners appointed for the sale of confiscated British property.” The Legislature of South Carolina, by an act, passed in 1817, released the debt due to the State by General Gist. 
      The preamble of the act recites as follows. “ Whereas, it appears that at a sale of lands, made by the commissioners for the sale of confiscated estates, in the month of February, Anno Domini, one thousand seven hundred and eighty-six, General Mordecai Gist became the purchaser of three tracts of land, and executed a bond and mortgage, dated the 15th of February, one thousand seven hundred and eighty-six; but by reason of some irregularity in the transaction, the said commissioners never gave titles to General Gist, for the lands bid in by him. And whereas, it appears further, that two of the said tracts of land, viz. one in Ninety-Six District, on Obed’s Creek, then late the property of Lord Montagu; and another tract, then late the property of R. English, on Savannah River, on Middle Creek ; have never been located: and that the only tract which has been located, to wit, a tract on Santee, formerly of Elias Ball, was sold by the direction of the Comptroller General, under the mortgage, on the sixth of November, one thousand eight hundred and nine^ when States Gist, Esquire, son, and representative of General Gist, to prevent its being sacrificed, bid in the same, át the sum of one thousand one hundred and ten dollars ; which sum has been paid, and placed to the credit of the bond aforesaid.” The act provides, that titles to the Santee tract should be made to States Gist, on his paying into the Treasury therefor, such sum, in addition to the sum already paid by him, as, with the said payment, will be equal to the price bid by General Gist, with interest on the balance from the '6th August, 1809, when the land was located ; or if the said States Gist should prefer it, the Comptroller General is required to refund the money paid by him, and to sell the land. And upon the adoption of either of these alternatives, the Comptroller General is required to cancel the bond of General Gist, vide Acts of 1817, p. 11, 12.
    The claim of the administrator of Independent Gist, was founded upon the provisions of this act; and it was insisted, that as the debt had been released, Mrs. Gist, and States Gist, were bound to refund to Independent Gist, his share of the amount left in their hands for the payment of this debt.
    Col. Cattell, one of the executors of States Gist, staled: “ with regard to the different lands bought by General Gist, from the commissioners of confiscated estates, I do not know of any of them obtained by Mrs. Gist, aud States Gist, except the tract called Pigeon Point, near Beaufort. The tract at Santee is explained by the act of 1817. The reason why General Gist, in his lifetime, and his widow, and son, after his death, did not obtain possession, was’ as * a^ways understood, because the lands could not be locatec*'” He also stated, that States Gist never considered the partition which had been made, and the release executed by Indepen. dent Gist, as a bar to the claim of the latter, to his share of the debt released by the State ; and that he had actually paid a part of it, and, but for his, Col. Cattell’s, advice, would have paid the residue, as he always regarded the claim as just and equitable : but that he reserved it, at the suggestion of him, Col. Cattell,,in order to force Independent Gist to a settlement respecting certain military lands, which he had acquired in right of their father.
    The cause had been referred to the master, who reported a balance of $2,399, due to the estate of Independent Gist, which he recommended should be paid, with interest from the 27th October, 1821, out of the estates of Mary Gist, and States Gist.
    The complainant excepted to the report, on the ground, that the partition and releases were a final settlement of the estate, and con. stituted a bar to the claim now set up for the estate of Independent Gist.
    The cause was heard at Charleston, in February, 1829, by Harper, Chancellor, who made the following decree.
    Harper, Ch. This seems to me a clear case of mistake, and I think that the representative of Independent Gist is intitled to relief. All the parties supposed that there was a debt due to the State, when in fact there was none. Mrs. Gist, and States Gist, received property equivalent to this debt, of which they assumed the payment. They received it for the purpose of paying the debt; but they have been exonerated from the payment, and ought to refund.
    An account stated will be opened, and leave given to surcharge and falsify, on any errors being charged and proved ; and it is said, that the party will not be confined to errors of fact, but may take advantage of errors of law. “ Every release must be founded on some consideration, otherwise (as Lord Chief Baron Gilbert says, For. Rom. 57,) fraud must be presumed. That consideration must be either a valuable consideration then given, or the adjustment of depending accounts. In the latter case, the fairness of the accounts is of the essence of the consideration. If they are not fair, the consideration is not fair, and the instrument founded on such consideration, is in itself void, and therefore operates nothing.” Per Lord Redesdale, in Roche v. Morgell, 2 Sch. & Lefr. 728. I do not think it material to inquire, whether the mistake was of law, or of fact. It did not appear, that the parties knew, under what circumstances the bond of General Gist was given. If all particulars were known, it would probably be impossible to say, how far it was an error of law, or of fact.
    This was not a case of speculation, or compromise. The parties did not agree to take the estate in South Carolina, whatever it might be, and pay the debts, whatever they might amount to. The property conveyed was specified and valued. The debts were also specified, and a provision made, that each party should bear an equal share of the burden of any unknown debts, that might arise. It is plain, that the parties could not have contemplated the chance of such an event, as has occurred. The release is general of all claims and actions: but if they had discovered, and taken possession of a valuable estate, which had been unknown to all the parties, can it be thought, that Independent Gist might not have recovered his share of that 1 In Cocking v. Pratt, 1 Ves. 400, an agreement was made by a daughter, with her mother, concerning the distribution of her father’s estate ; which agreement was afterwards ratified by her husband. It turned out, that what she received was considerably less than her share;. and the Court .relieved. The Master of the Rolls observed, that she clearly did not intend to take less than her full share. He does not decide on the ground of fraud, but of mistake as to the value of her share. He observes, that the Court would not interfere for a trifle; but the. value was material. It was not a case of composition for ready money, as •wanting to marry. I think the principle of that case covers this.
    It was suggested in argument, that if the Legislature thought proper voluntarily to release the debt, it was a gratuity to Mrs. Gist, and States Gist, in which Independent Gist had no claim to share. But the act does not put it on that footing: it was conceded as matter of right. If the facts recited in the act are true, and 1 must take them as concluded, there was a good defence against the bond.
    It was also suggested, that this was not the proper form of proceeding ; but that a bill should have been filed by the representative of Independent Gist, and, according to the authorities, specific errors charged' and proved. But in order to settle the estate of States Gist, it was necessary, that this claim should be decided on. The representative of Independent Gist, was called upon to establish his claim. He was, in effect, called upon to interplead. The defendant was made the actor. I am of opinion, that the error was sufficiently charged, and proved.
    It is ordered, and decreed, that the master’s report be confirmed; and that the defendants, the executors of States Gist, pay to the adrn'n's^rai:or °f independent Gist, out of the estates of Mary Gist, and States Gist, the amount reported to be due to him.
    From this decree the complainants appealed, and now moved that the same might be reversed.
    Finley, and Hunt, for the motion.
    The partition ■ and settlement of 1810, were intended to be a full and final division,- of the estate of General Gist. On that ground, Independent Gist refused to account for the military lands, which he acquired, subsequently to the settlement, in right of his father ; and on the same ground, he might have refused to bear his portion of the loss, if Mrs.. Gist, and States Gist, had been evicted from any part of the estate in South Carolina. For the same reason, he is barred of any right to a share of the debt released to them, by the State. As to Col. Cat-tell’s statements, in relation to the views and intentions of States Gist, in the first place they are not evidence ; and if they were, they prove nothing but the generosity of States Gist. There was no promise; and if there had been, it was nudum pactum. Besides, parol evidence cannot avail, to alter the terms of a deed.
    
    It is said, however, that the arrangement of 1810, was founded in mistake. But of this there is no evidence. How does it appear, that the parties were ignorant of the circumstances connected with the debt to the State 1 The probability is, that they were well acquainted with them; and that the chance of a release by the State, was a motive to the undertaking of Mrs. Gist, and States Gist.
    If there was any mistake, it was mutual; and when that is the case, mistake -is no ground for opening a settlement; 1 Mad. Ch. 73. Pearce v. Crutchfield, 16 Ves. 48. No case can be found, which comes up to this. That of Cocking v. Pratt, 1 Ves. 400, went upon the ground, that the compromise was obtained through parental influence; Atherley, Mar. Settl. 364. There is no pretence of influence, or unfairness, in this case.
    If the release by the State were ' a gratuity, Independent Gist, unquestionably, had no title to share in it. But regarding the act of 1817, as founded on the failure of the consideration, for which the bond was given, surely the release of the debt on the one side, is balanced by the loss of the lands on the otherand yet the estates of Mrs. Gist, and States Gist, are ordered to pay to the representative of Independent Gist, his share of the debt released, and no allowance is made for the loss of the lands : although some of the lands, particularly a large tract in York district, could never be located, and-the only tract whic^ could be traced, that on Santee, was actually sold by the State, and bought in by States Gist. This cannot be law. Certainly it is not equity.
    Grimke, contra.
    
    It is almost unnecessary to say one word in support of the decree, which is in itself conclusive. The argument for the appellants is founded upon the error, that the partition of 1810, was a compromise. It was a compromise to be sure, so far as it includes a mutual releasé of joint interests ; but it compromises nothing more. The debts, and property, are all specified, and the property valued; and the settlement is made on the basis of this specification and valuation.
    It is urged, however, that the release of the debt is balanced by the loss of the lands; It may be conceded, that, if the title to any of the lands has failed, States Gist, and his mother, are intitled to a discount pro tanto ; but this discount cannot extend further than the valuation placed on these lands, in the partition. The loss of any part of the property, assigned to Mrs. Gist, and States Gist, can furnish no ground for depriving independent Gist, of his right to share in the debt released, except by way of discount. Now it does not appear, that any valuation whatever, was placed on the lands in question ; and it is fairly to be inferred, that they were thrown in, as of no value. With regard to the sum paid by States Gist, on buying in the Santee lands, it was directed by the act of 1817, to be refunded to him from the public treasury ; so that there can be no claim for any discount, for that payment. The answer then to the argument is, that if the complainant have any claim arising out of the loss of the lands, it is to a discount, which they should have established before the master. This they have failed to do, and it is too late to do it, now.
   Harper, J.,

delivered the opinion of the Court.

This Court concurs in the opinion delivered by the Chancellor; and his decree is affirmed, so far as respects the several matters settled by it. It is now, however, suggested, that of the several tracts of land conveyed, or released, by Independent Gist, to States Gist, and his mother, some of them, and particularly a tract of seven hundred acres, said to be situated in York district, but which could never be located, were never obtained, or enjoyed by States Gist. This, as was urged in the argument, could not be a ground for dismissing the claim of Independent Gist; although it might have been matter for a counter demand, or abatement. In strictness, this claim comes too late. It ought to have been made before the master, on the reference. This was not done; and there was neither any exception to his report on that ground, nor was the point made at the heaiang *n ^ie Court below. Still, however, I suppose it to be within the competency of this Court, if any claim, or ground of defence, has been casually omitted to be made, to afford the parties an opportunity, of trying its merits ; and the Court is always reluctant, whilst the case is in its power, to exclude any apparently just claim, or defence.

The release, or conveyance, from Independent Gist to Mrs. Gist, and States Gist, is not before the Court, but has been mislaid since the hearing; and it may be, that if it were before us, it would ap. pear, that there was no ground for opening the cause; It may be, that no value was set upon the land thus released. The Court perceives several other objections to the establishment of the claim. These, however, ought to be properly investigated before they are decided on ; and as little prejudice can be occasioned to any party, by the short delay necessary for the purpose, the Court is disposed to grant an opportunity for such an investigation. Perhaps it may still be in the power of the parties to produce the release on a reference.

It is, therefore, ordered, and decreed, that the master’s report be so far opened, as to allow the complainants to prove, and establish, any claim, or demand, which the estates of States Gist, and Mrs. Mary Gist, may have against the estate of Independent Gist, by the failure of the land, or other property, released, or conveyed, by Independent Gist, to the said States Gist, and Mary Gist, according to the views herein expressed : the decree being in other respects affirmed;

Johnson, J., and O’Neall, J., concurred.

Decree modified.  