
    
      Bedinger vs. Whittamore, &c.
    
    Chancery.
    Error to the Nicholas Circuit; II. O. Bown, Judge.
    
      Parol contracts for land. JVotice. Equity. Assumpsit. Parol lease.
    
    October 31.
    Proclamation by crier, on sale of town lots, that “purchasers may use in common, certain salt spring,” is parol promise by owner of town lots, to that effect, & is not absolutely void. And if inserted in deeds,-after-wards made t0 purchasers of lots, will Ntthp'’“_ perior to that acquired.by any interme-ser of' spring, with, notice of 3uotl P*ro! contract.
   Judge TJiraEtiwooD

delivered the opinion of the Court.

G. M. Bedikqer and Wm. Bartlett, owned the lands including the lower Blue licks on both sides Licking river. The tract held by each, was held separately, and not jointly. The line, dividing their tracts, passed through the centre of both salt'springs, to wit: The spring on the north, and also that on the south side of Licking. The original pa-tentee, who owned both springs, and the land around both, had sold out to different persons; and in the deeds of conveyance, describing the dividing line, called for the centre of the salt springs; thus manifesting an intention, beyond all doubt, to divide the advantages arising from the salt water, equally between his vendees. Under this division of the springs, the land fell into the hands of Bedinger and Bartlett. Bartlett determined on his side of the line. lo lay off a part of his land into lots, and to establish a town thereon*

Accordingly he had a survey made,-laying off a portion of his lán^ into streets, and alleys, and lots, thirteen poles long, and six and a half 'poles wide, One of his streets, called Front street, was laid off thirty feet wide, and bound upon the line between him and Bedinger, and included his half of the salt spring, on the north side of Licking. After Bartlett had laid on his town, and given to it his own name, and before any establishment thereof by law, he proceeded to sell out his lots, and disposed of a number of them at public auction. ' '

Bartlett repeatedly declared, that the streets and alleys, and the interest he had in the salt spring, were to remain public, for the use of the town; and his crier, who sold the lots, was directed-so to proclaim it on the days of sale, and did so. The crier made the proclamation when lot No. seven was sold, in the presence of Bedinger, who bought said lot,-and which is situated near the salt Spring. ,

Bartlett sold to Williams some lots in the town, and some land, and the ferry across Licking, and gave his bond to make a title. Williams assigned this bond to Radford. Bartlett, in 1818, executed a deed of conveyance to the property described in the bond, to Radford; who, on the same day.,- conveyed it to Whittamore. . ,

In the deed from Bartiett to Radford, and from him to Whittamore, the following clause is inserted: “Also, to have the entire and free privilege of using, and causing to be made use of, in common with others, the salt water, and benefits arising, from the spring on the north side of Licking, as herein before described, and made mention of, to the said Radford, (in the deed executed by Bartiett, and to the said Whittamore, in the deed executed by Radford,) and his heirs and assigns forever.” Bartlett’s bond to Williams, bears date in March, 1816, and contains no stipulation, that Williams shall have any right to the salt water.

In March, 1817, Bedinger contracted with Bartlett, for certain lands; and they entered into articles of agreement, signed by both, in which it is stated, that “said Bartlett sells to said Bedinger, a tract of land at the lower Blue licks, containing about twelve or fourteen acres, being the balance unsold by him, of Bart-lettsburg, agreeably to a plat of the town, and to make said Bedinger a general warranty deed for the same.”

Under this clause, in the agreement, Bedinger not only claims,the unsold lots in Bartlettsburgb, but he likewise claims the streets and alleys; and, consequently, all the interest which Bartlett ever had in the salt spring on the north side of Licking. To assert this right, Bedinger filed his bill against Bartlett, Whittamore, Ballingall, &c. praying, that Ballingall, Whittamore’s tenant, might be compelled to surrender possession of the part of the spring, enjoyed by him; that Whittamore might be compelled to relinquish his title, derived under the deed from Radford; and that Bartlett might be compelled to convey, according to his contract.

it is satisfactorily proved, that Radford and Whit-tamore, had notice of Bedinger’s claim before the ■execution of the deeds of conveyance, and there would be no ground for refusing the relief sought for, by regarding Whittamore as an innocent purchaser, without notice, unless Williams, under whom Whit-tamore, through Radford, claims, had an equity equal or superior to that of Bedinger; or unless Bed-inger’s covenant on Bartlett, should be so construed, as to impose no obligation upon Bartlett, to convey to Bedinger the streets and alleys in Bartlettsburg.

Was Williams’s equity equal or superior to Bedinger’s? Has Bedinger any equity at all, in respect to the streets and alleys, under his contract? In answer to the first question, we are of opinion, that the statements made by Bartlett, that the streets and alleys, and salt springs, were for public use; bis authorizing and directing the crier so to proclaim it; and the fact that it was so proclaimed, were equivalent on the part of Bartlett, to a parol contract, with the purchasers of lots inBartlettsburg, that they should enjoy cbe «se of the streets and alleys, and'water forever. Such contracts not -being absolutely void, are good for many purposes, and do, frequently, constitute valid considerations in equity.

As Bartlett, in his deed to Radford, chose to recognize what he had verbally promised the owners and purchasers of lots in his town, and secured in the deed, what he had so promised, we are of opinion,. that the equity of the vendee, thus secured, relates to the date of the sale of the lots. This overreaches any equity of Bedinger’s, under the supposition, that his contract gave him a right to the streets, alleys, and salt spring. That Bedinger, before he contracted with Bartlett, in 1817, .had full notice that the streets, alleys, and. spring, were reserved for the use of the purchasers of lots, and as inducement to make the lots sell high, there is not a shadow of doubt. An attempt on his part, thereafter, to deprive the purchasers of lots of these advantages, (and without which, their lots might be worthless) when Bartlett was willing to secure them to the purchasers, cannot' be favored in a court of equity; Upon this ground, therefore, the circuit court did right,'in dismissing the bill, as to Williams, Radford, Whittamore, and Ballingalh

Whether the town of Bartlettsburg had been legally established, according to law, at the date of Bartlett’s deed, in 1818, cannot, in our opinion, affect the controversy. If it had been, the title to the lots, streets,. &c. was vested in the trustees, and Bedinger would have had no cause to sue Williams, Radford, Whitta-mor.e, and Ballingall, without also bringing the trus* tees before the court, and if the town was legally established, and the streets and alleys, vested in trustees, and Bedinger had made them-parties, he could' not have succeeded. We see no error in refusing to. permit Bedinger to file his amendatory bill»

In respect to the spring, on the south side of Licking, it is not alleged that he has been actually obstructed in the use of the water, by any of the defendants; and, therefore, the case of Lyon vs. Ross and wife, I. Bibb, 466, is not analogous. If, as he supposes, that spring is altogethenon his side the line, he has nothing to do but to take possession, and let those who may assert claim to the use of it, sue him.,, as we believe, the water of that spring, is only half his, and a controversy should, hereafter arise, by either claimant obstructing the other, a court of chancery may properly interpose, to settle the controversy,. Until then, we shall leave the parties in stalu quo.

Petition for a re-hcaring.

Wicklijfe, T. Ji. Marshall, and John Trimble, for appellant; Crittenden, Mills, and Brown, for appellees.

It is not improper to remark, that the expressions used in the agreement, between Bedinger and Bartlett, do not, under the facts exhibited, necessarily convey the idea to our minds, that the streets, alleys, and salt spring, were contracted by Bartlett to Bed-inger. Bartlett parted with the balance of his ground in Bartlettsburg, “unsold by him.” May not this expression, properly mean the balance, which, according to the plan of the town, he had a right to sell, as lots, and no more? But, as there is no necessity to express a positive opinion, on this point, we shall forbear to do it. The idea of a proprietor selling the streets and alleys of a town, after laying it off, and selling out lots, and thereby rendering the lots sold, useless, cannot be tolerated, unless it be clear and unequivocal. The facts on which this opinion is based, are established, without regarding the depositions objected to, on the score of interest.

The decree is affirmed with costs.

The counsel for Bedinger, presented the following petition for re-hearing.

The counsel for Bedinger, solicit a re-argument of his case:

lst‘ ®ecai,se be respectfully suggests that the court have in some degree, misapplied the evidence to the case, and not ascertained the facts of the case according to the evidence when duly weighed. For a minute detail of the evidence, the counsel refer to the manuscript A. herewith presented.

It is also believed, that that part of the opinion which affixes a construction to the contract, between Bedinger and Bartlett, needs an examination.

It is further submitted to the consideration of the court. If they have not settled a principle most dangerous in practice, and against a current of deei-sions of this court. In Hunt and Saunders this court decide that a parol contract for land is void, and that. the vendee can recover the deposit back^ notwithstanding the vendor tender a deed, or in his defence declare his readiness to make a deed by answer or plea. This case is not solitary, but the principle settled in it has been considered by all lawyers and judges, as the settled law of the land for about fifteen years; and I respectfully ask how this can be law, if the opinion as expressed is correct, to-wit: That, if Bartiett made parol promises that the water should be common, and thereafter sold all title, &c. t© Bedinger, not excepting the water, streets, &c. promised, that his subsequent deed is available against his written contract by reason of his parol promises and declarations. It is admitted on all hands that his bond to Williams did not embrace the streets, alleys and springs, and that his deed varied from his bond, and you say, that as he chose to recognize his parol contract with the purchasers of lots, you are of opinion that this relates back to his promise. Now I ask how do you getthis equity by parol? By swearing that such parol contract was made by all the ways that the statute against Frauds and Perjuries forbid you to prove a title to land. If the principle settled in this case is correct what man is safe, if he buy land, holding a bond for it, when he bought, say that he knew that there was a parol agreement; but he also knew, if he knew what this court had repeatedly decided, if he knew what the statute of his country was, that this parol agreement was void'absolutely, that no claim could be asserted, and yet if the vendor chose after he made a valid and legal sale, to recognize an invalid and void sale, he can thereby defeat his legal contract. It is believed that this court has ever heretofore held a knowledge of such contract as wholly immaterial, and yet the court lays stress upon the Pact of notice as proved by Ballengall and others; take this opinion as it stands and what does it establish?

1st. That a void contract can be made to overreach a valid one.

2d. That notice of a void contract, makes void a valid ®ne.

3d. That a parol contract may be added to a written one, to enlarge and give it efficacy, and this parol be proved by parol, or in other words, by parol contracts, for land, proved by parol, a valid claim can defeated; but with whom did Bartlett contract, and what were the terms of the contract with Williams? No. With whom for these alleys, springs, streets, &c? With no one, with no body, corporate, sole or aggregate; no writing was exhibited of a contract with all the world; but a simple and parol contract declared to the crowd, is by the opinion made to hpve the force, body and shape of a contract. Suppose any of these purchasers,before Bedinger’s bond,had died their bill, or brought their action at law for any of these streets, alleys, &c. and to be permitted to take the land under water, what would the chancellor say? Surely not, that he had power to coerce a title; grant that these highways may be opened, and the use of these springs be secured. Then, I humbly conceive that the court have not done equity between the parties; this court cannot certainly understand Bartlett as selling the fee in the alleys and water; but that he only intended to pass the right of way and the use of the springs, for medicinal or family purposes; notin fee, did this parol contract authorize any but Bartlett to make salt; and if the town corporation or other tribunal should shut up the alleys or streets, as ways that, the fee should be in abeyance any more than away over a farm? Surely not. What then can be made of the parol promise about springs, streets and alleys? why that the use should be to the inhabitants, but the fee in Bartlett? The fee was therefore in Bartlett, and is surely embraced in the contract for all the balance of his land, &c. Under a deed with the same words,, the land, the whole fee, would pass subject to the estate or use created. Has not the court erred, in not decreeing to Bedinger the fee, if that fee is subject to the use according to the parol agreement alleged?

I contend that if a mine or a quarry of jewels, were under the streets and alleys, these are Bartlett’s; his land extended to the centre of the earth, and up to heaven, so of the land under the water. God and the state have said the river Licking is a highway for every one, and yet, is not the fee under water, Bart* Sett’s, and does it not pass to Bedingermnder his contract, and just as much and no more than the fee in the lands under water of the spring, and the fee sim-pie beneath the streets, alleys, &c.? Your honours ought certainly to have decided in whom was the fee to the springs and alleys, at the date of Bedinger’s contract, and after, until the conveyance to the trustees of the town; if not in the few who bought lots conveyed to them by parol; if notin the commonwealth ; if in no one else but Bartlett, and Bartlett-sold to Bedinger, all the land he had unsold, he surely sold it to be held and used to all the purposes he could have used it. It cannot be pretended that Bartlett reserved to himself any property, after he sold all to Bedinger, that he intended ■ to, reserve to himself; the fee in the streets and alleys, and the fee and common use of the spring, this is not, and ought not to be contended for. Ought not the court to have settled, what kind of a use the lot holders had in the salt spring; if to drink and use the water, very well; if to use it to themselves and other heirs, for ever, very well; if every lot holder had this interest; if all were tenants in fee by the parol, surely-they all, and each may sell and grant it, as other rights in fee or equity can be sold; but this view will not do. The court must admit that the usufruct of the water, was all that was promised, and that the right to sell the fee in the streets, alleys and salt spring, was never parted with, and to use all that pertained to either, as the owner in fee was reserved. Suppose I convey to my neighbor a right of" way, the right to navigate my water course to pass his water over my land, does not the fee in these grants, notwithstanding remain in me and lie in grant? Does not the fee in the commonwealth’s highway, itself lie in grant and descend; of this there can be no doubt, the owner is not to obstruct the person having the use, and this is all chancery or law will see done. Bedinger filed his hill to be let into the fee as Bartlett held it, and bound himself to convey it. The fee I have shewn was then in no others but Bartlett, and yet you have refused to decree it.

There is a fatal error not noticed by the court. In the decree below it was gross error to try the cause by halves, Bartlett’s heirs were necessary parties, and. the fee was clearly in them for the use of Bedinger, if their father sold it to Bedinger; Bedinger claimed under them, so did Whittamore, and it was essential cour^ sh°uld settle between them and Bed-iuger, what they were bound to convey, and Bedinger’s recovery in this case, would be measured by his contract with Bartlett; and yet you try the cause and decide it in favour of Bartlett’s heirs, without their being before the court. Again, it is considered that the court has failed in its duty upon the whole case. This is a bill to settle boundary between persons deriving title from the same source; there are many persons claiming, and these circumstances independent of the fact, that Bedinger had not acquired the Segal title, forms a right to go into chancery. The defendants contest the boundary. Was it not the duty of the court, to have the boundaries formed, and to direct Bartlett’s heirs, and the trustees and all others to convey to Bedinger? Boundary, fixed it, where the court will. But the court say, that one end of the boundary, the south spring, is not a subject of equity, because it is not shewn, that Bedingeris interrupted. Here the court seems to have lost sight of the fact, that this decree is absolute, and that Bedinger is suing for a title, and that he was praying to have settled a part of his boundary in which he had been interrupted, and that the defendants claim to the centre of the gum.

It is surely enough in a bill in chancery, that the complainant shew, that he is interrupted in a part of his boundary; and that (he whole line is contested, to • give the chancellor jurisdiction. And can it be right for this court, in a case so circumstanced, to say, there is no necessity, now, to settle the boundary? Surely not. But if the court were to dismiss the suit, because they would prefer an interruption; that is, let this suit beget another suit, ought the bill to be dismissed absolutely, and can the court renew Us remark, that for future interruptions, if he hath any, a court of chancery would relieve, without having great doubt of the accuracy of the legal opinion, so expressed? Had the court garbled the controversy, and dismissed the bill, for part, absolutely; and for this part, without prejudice, the opinion could scarce. lyhave been sustained, as it was an entire subject ■controversy, to wit: Boundary; and yet, without any reservation of the right, hereafter, to sue. The court seem to imply, that, the right exists to sue again, and the attention of the court is seriously invited to that part of the opinion, in which the court say,if he have right to the south spring, let him enter, &c.

May not this be said to every man, who files his bill, to settle boundary; and this most valuable power of chancery, thereby become worse than useless. This court do not deny the right ol Bedinger to come into chancery, to settle boundary. The right cannot be denied on authority. His case is one. of the very cases,given where chancery ought to relieve; where the suit in chancery, will supersede divers suits at law, and.permanently fix the boundary; and yet he is dismissed, without a singlé inch of his boundary being ascertained or fixed. His cause is tried, as to fraudulent purchasers, with notice, if they passed his boundary, while the suit against his vendor is pending. Indeed, the court has split the cause, and left him to a scuffle with Bartlett’s heirs. - Suppose, in the suit with Bartlett’s heirs, you decree, as you may, the fee in the land, under the water of Licking, and the springs, and the fee in the alleys, &c, can you decree a conveyance! No; and for the reason that Whittamore, &c. whom, you admit, bought with notice, hath the legal title, nor can you go back to Whittamore; thus, by'splitting up the cause, you disable yourselves, to do justice, however apparent the right, when all the views of the casé are taken. A re-hearing is prayed. R. WJCKLTFFE.

There are cases, where there may proper parties, who are not necessary parties. In such cases, the cause may be tried as to a part only, of the defendants. But where all the defendants are necessary parties, it is error to try the cause as to part of the defendants; and for that reason, the decree ought to be reversed, and the cause remanded for further proceedings. See the case of Cox’s heirs vs. Strode, IE Bibb. JOHN TRIMBLE.

•Judge Underwood delivered the following response of the court, to the petition for a re-hearing. ,

The first suggestion made in the petition for a rehearing, is, that the facts of the case, according to ihe evidence, were not correctly ascertained. It ‘would have afforded us pleasure, to correct any error in point of fact, into which we may have 'fallen. Upon re-examination, we have detected none. The petitioner has not-designated, specially, any assumption of fact not sanctioned by the evidence, but suggests, in general terms, that we have not “duly weighed if,” and refers us to abreviations of the depositions, made out by another and filed by him for re-examination, so that we may correct the misapplication of the evidence imputed to us. It would have been more agreeable to the court, and perhaps more beneficial to the client, had the learned counsel designated precisely, the nature and extent of the error, in point of fact, committed by us. As he has not done this, it may be, we have again misapplied the proof. If we have, we are not sensible of it, nor do we believe that we have fallen into any mistake, misapplication or misconception of the true character and weight of 'the evidence, or the facts established by it.

•It is next believed by counsel, according to the petition, that the opinion needs a re-eXamination in that part of it which “affixes á construction to the contract between Bedinger and Bartlett.” We apprehend that the petitioner has paid but little attention to the opinion, for we have affixed no construction to any such contract. The contract between Bedinger and Bartlett, may hereafter be presented for consideration. If it should be, there is nothing in the opinion which will influence or control us in our construction of their contract.

The most formidable ground upon which a re-hear-ingis asked, is the intimation given that the opinion “settles.a principle most dangerous in practice and against a current of decisions.” The petition assumes the position that ,a parol contract for land is vot'd. And that is the principle of law which the court is supposed to have overturned. The principle assumed, never existed, at least it never existed to the extent, to which, by the petition, it is attempted to be applied. In support of it, the case of Hunt vs. Sanders; See I. Marshall, 553, is refered to.

Money, paid on parol contract for land,' may be recovered bade again, in as-sumpsit for money-had & received.

But no such recovery can be had where vendor, by way of de-fence to the ■■ action, shews his ability & tendors performance.

Written contract, or assignment of title bond for land, cannot prevail against claimant of sama land, under antecendent parol contract, tvho thereafter obtains an assignment on separate piece of paper.

This, and other cases, which have been decided» are authorities to prove, that money, paid on a verbal contract, for the sale of land, may be recovered by the purchaser, from the seller in assumpsit, for money had and received. Such recovery is allowed', because the parol contract cannot be enforced under the statute of Frauds, when the seller resists the execution of the contract; but no such recovery can be had, when the seller, by way of defence to. the-.action, shews an ability, and tenders performance of, the contract on his part.

The petitioning counsel is.altogether mistaken in supposing that the ease of Hunt vs. Sanders, tolerates a recovery, where the vendor- tenders a deed, shews an ability to make a good title, and in all respects-, acts conformably to the parol contract. The case of Lewis vs. Whitnell, V. Monroe, 190, is an authority directly in point. Other adjudications to the like effect, might be cited. The cases of Barnes, Anderson, &c. vs. Wise, III. Monroe, 170; and Roberts vs. Tennel, Ib. 250, have been selected from among many-, others, and are here referred to, id order to prove that parol contracts are not void. In, the first, the court uses this language, speaking, of parol contracts, that they are “good in the mouth of a defendant, asa matter of defence; and that.in a defensive attitude, such a contract should be a shield, and its obligation be acknowledged/*

The case of M‘Connel, &c. vs. Smith, &c. III. Monroe,. 432, is strikingly analogous to the present, and proves, that a written contract or assignment of a title bond, for land cannot prevail against the claimant of the same land,’ under an antecedent parol con.T tract,, who, thereafter, obtains an assignment on a separate piece of paper. . Much stronger is the protection, afforded.by an executed contract, a deed of conveyance, recognizing the right of the vendee, as promised under, and by a parol stipulation, as is done in the present case. So far are parol contracts, concerning lands, although falling under the provisions and operation of the statute of Frauds, .from being void, that they do, and may constitute a valid fountla-ti°n, upon which, extensive liabilities rest.

Parol romise, to make leasefornum-wüUecure’ valueofiaBor and money, expended in impnmng

Even a parol promise-, to make a lease for a num~ ber of years, will secure the, value of the labor and-money expended in improving the land. Findley, &c. vs. Wilson, III. Littell, 394. We believe, therefore, that we have adhered to “principle, safe in practice,’* and settled the case of the petitioner’s client, in con-fortuity to doctrines, maintained by “a current of úeciú¿ns»

We think the case might have been disposed, of in respect to Whiitamore, &c. without waiting to have it prepared, or brought to trial, as it regards Hart-ley’s heirs, in relation to the boundary, we are still of opinion, that such a case was not made out, as authorized Bedinger to proceed in chancery, against Whittamore, or his tenant or vendor.

The petition is overruled.'  