
    Carter’s Executor v. Carter and Others.
    Decided March 20th, 1816.
    i. Partition — Irregularity—Acquiescence-Effect of.— A partition, which has long- been acquiesced in, and acted upon by the parties generally, ought not to be disturbed at all on the ground of irregularity only: though if unjust or illegal it maybe impeached by a party who never acquiesced.
    3. Same — Case at Bar.-Under the circumstances of this case, one of the persons entitled to partition having been in possession and enjoyment of the whole land, for many years, through want of knowledge of the title of the other partners, to whom he made their title; known, immediately after it was discovered by himself; upon a bill filed by them for partition, it was considered equitable thathe should account for their proportions of the rents received by him, deducting his disbursements for securing the title: that all the leases, and agreements of lease, he had made of the land should be acquiesced in by the plaintiffs; and that, for a part which he had sold, he should pay the price received, with interest from the time of the sale: the time when he received it not appearing to be different from that of the sale.
    3. Same -Same, — Interest also would have been allowed the other partners, on their proportions of the rents received by him, from the time of filing their bill; but, by their consent, it was allowed from the beginning of the next year after the last receipt.
    This was a suit in chancery, in behalf o£ Charles Carter (of Shirley,) and others, against Robert Carter of Nornony.
    The bill stated that Robert Carter (of Corotoman,) Robert Carter (of Nomony,) Charles Carter of Gleve, and Mann Page (of Rosewell,) entered into a partnership as tenants in common, for working a copper mine adjoining a run, called Prying' Pari, in the then county of Stafford, and sundry agreements respecting the same, and for the purchase of some adjoining lands; after which, the said Mann Page died, having first devised *bis share among his six sons, Ralph, Mann, Carter, John, Matthew and Robert: —that this devise was confirmed by the surviving partners by a written agreement, under which the said lands and the slaves belonging thereto were held by Charles Carter and Robert Carter, and finally by the latter only, from whom they came to Robert Carter the defendant: but, in the mean time, the owners disposed of their respective interests, as follows, viz. Robert Carter (of Corotoman) devised his fourth to his son John in tail male, whose son and heir was the plaintiff, Charles Carter, (of Shirley,) who was also heir to the said Robert Carter of Corotoman: — Charles Carter (of Cleve) devised his fourth to his sons John and Eandon, of the first of whom the plaintiff Anne Eyons was the heir and representative, and the latter said he was entitled either to the whole or a moiety of his father’s share: — that the plaintifE’s representatives of Mann Page did not agree in the construction of his will; and stated then several pretensions :— that Robert Carter the defendant, on the 26th of January, 1778, addressed a letter to Mann Page, Charles Carter of Shirley, and Charles Carter of Stafford, in which he informed them of his having seen a copy of the deed of copartnership of the 4th of November 1731, and stated that, if there had been no written agreement to invalidate it, he could see no good reason for his keeping the whole, and was willing to make partition ; mentioning at the same time that a tract of 3390 acres had been sola by him to one Semple in 1762, which he was willing to have included in his allotment, or to pay for it the money received, with interest.
    The prayer of the bill was for a division of the lands, slaves and stocks; and of the rents and profits, and for general relief.
    Robert Carter (of Nomony,) by his answer, admitted the partnership; but denied that any slaves, utensils, or other personal property, ever came to bis hands. He alleged that, in the year 1749, when he came of age, the property in question was delivered to him, with the rest of a very large estate,' by his guardian John Carter late of Shirley, and Charles Carter of Cleve, two of the persons interested in the original partnership; from which period the defendant continued to rent the lands, sold the tract to Semple, and acted in every respect *as the absolute owner, which he supposed himself to be; that, having accidentally discovered the title of the plaintiffs, he immediately wrote .the letter in the bill mentioned. He was willing to account for the profits actually received ; but his father and himself had made disbursements on account of the said lands; — especially for a re-survey thereof, by which a large quantity of surplus land was secured to the partners; of which disbursements, he would produce a copy from his books.
    In an amended answer, he stated that, before he discovered the title of the plaintiffs, he had made sundry leases, which, as well as his sale . to Semple, ought to be confirmed by the decree to be rendered between the parties.
    The chancellor made an order for a division of the lands, and an account of the profits; upon which, the commissioners reported that they had divided the lands into four lots; one of which was allotted to the representatives of each of the original partners. A report on the subject of the profits was also made by them, but was afterwards referred to commissioner Keith, who reported a balance of 162,7901bs. of tobacco, and 35541. 11s. Id. in money, to be due from the defendant.
    In September, 1797, the defendant filed exceptions to the report of partition: — 1st, because the commissioner had included in the allotment to Charles Carter the tract sold by the defendants to Semple; although the defendant had offered originally to account for the price of that tract, “with interest from the time he received it,” or to take the tract into his own allotment: — 2d, because the report had paid no regard to the leases made by the defendant.,
    In May 1798, the court confirmed the report respecting the lands, as to all the parties, except Charles Carter of Shirley, and Robert Carter of Notnony, as to whom, “by consent of parties,” it directed the allotments to be exchanged, so that Robert Carter might have the lot which contained Semple’s tract; — and, as to so much of the bill as claimed an account of slaves and their profits, directed the same to be dismissed; — without prejudice, however, to any future demands of such slaves and profits. But, on the 3d of October following, the court, being satisfied that the defendant did not consent to the exchange of purparties between him and the plaintiff Charles Carter, as was, from a mistake by the counsel of the former, *supposed in the decree pronounced in this cause, on the 14th of May last, did, on motion of the defendant by his counsel set aside so much of the said decree as ratified that exchange, and, instead thereof, establishing the partition reported by the commissioners, adjudged, ordered and decreed that the plaintiff Charles Carter and the defendant do hold in severalty the pur-parties allotted to them, respectively, by the commissioners.”
    No decree having been made concerning the profits of the lands; and several of the parties having died; — a bill of revivor was filed, in January 1807, by the representatives of Charles Carter of Shirley, and the rest of the plaintiffs, against George Carter executor of Robert Carter of Ñomony, and the heirs of the said Robert Carter; — stating the nature of the suit, the proceedings and interlocutory decrees, and complaining of the alteration made in the allotments by the last mentioned decree. On this subject, the bill of revivor stated, that Charles Carter had brought an ejectment, for the land sold to Semple, against the persons now in possession, who thereupon pleaded the act of limitations; that the cause was decided by the district court in favour of the defendant, but that the plaintiff had appealed, and the controversy remained undetermined. The plaintiffs therefore prayed that the lot first decreed to Charles Carter (of Shirley,) be restored, or that indemnification be made to them for the alienated land.
    A subsequent bill of revivor, rendered necessary by the deaths of other parties, stated, that the judgment in the ejectment had been affirmed by the court of appeals,  and prayed for general relief.
    The answers of several of the representatives of Robert Carter, stated that, by his last will, he charged his personal estate; (which he gave to his son George,) with the payment of his debts; and devised his Prying Pan lands to his others children. They therefore prayed that the defendant George Carter might be compelled to. make satisfaction to the plaintiffs, if any should be decreed.
    The answer of George Carter referred to his father’s answer to the original bill, and said he was desirous, as his father *had requested, that the land sold to Semple should be allotted to his estate.
    The court in June 1810, decreed that George Carter, executor of Robert Carter, out of the assets in his hands should make compensation to the executors of Charles Carter, (of Shirley,) for the loss of the land sold to Semple, “and would have proceeded to direct an issue to ascertain the value of the said land at the time of the sale thereof as aforesaid;” but, by consent of the plaintiff’s executors of Charles Carter, that value was fixed at the sum which Semple paid for it, with interest: — ■ the court then directed one of its commissioners to take an account of the personal estate of the said Robert Carter, deceased.
    At February Term 1811, leave was granted to George Carter to amend his answer; and it was agreed between the parties, by their counsel, that such amendment should not impede the trial, and that the suit should not abate by the death of any of the parties.
    The amended answer of George Carter stated the order for setting aside the exchange of allotments between Charles Carter and Robert Carter was made without the knowledge of the latter, who, always, in conformity with his answer to the original bill, wished the land sold Semple to be included in the allotment to himself.  This respondent required the plaintiffs, executors of Charles Carter, to shew their authority to accept a pecuniary «compensation for the loss of the land sold Semple; insisting that satisfaction ought to be made out of the real estate of the said Robert Carter in Virginia, or out of the share 'of the Frying pan lands which fell to Robert Carter. This position he en-deavoured to support from the intention of “'that testator, as apparent from circumstances, and written documents exhibited with the said amended answer.
    It appeared from these documents that Robert Carter, having an estate consisting of many thousand acres of valuable land in Virginia, residing himself in Maryland, and having ten children, on the 13th of May, 1795, wrote a letter to Spencer Ball, the husband of one of his daughters, for the information of all his children, proposing to divide his lands in Virginia into ten equal shares; each of his children to take one by lot; to pay him an annuity during his life, of one thousand dollars, specie, to satisfy all demands against him relating to his Virginia concerns; the whole landed estate (except a small tract in Fairfax county) to be subject thereto; and they to indemnify him by a joint bond and mortgage against every suit at law which had been or should be commenced against him. This proposal was, in . part, tout not completely, carried into effect.
    The defendant George Carter, afterwards, admitted before the commissioner personal estate, of his testator, in his hands to be administered, sufficient to satisfy the demand of the plaintiffs, if the court should think him liable for it.
    On the 10th of June, 1812, the account of profits heretofore reported in (his cause was referred to commissioner Nicholson, who was also directed to state the amount thereof due the respective parties. Upon his report the court, having caused the cash value of the balance due in tobacco to be ascertained by a jury, decreed, 1st, to the respective parties the several sums found due to them by that report,  with interest on each sum from the 1st day of January', 1798; and, 2dly, that George Carter should pay to the executors of Charles Carter, of Shirley, the price given toy Semple for the land purchased by him, with interest from the time of the sale thereof by Robert Carter to Semple:—  saying nothing of the leases x'which Robert Carter had made of part of the Frying pan lands, before he discovered the title of the plaintiffs.
    From which decree, George Carter appealed to this court.
    Wickham for the appellant.
    Call, Wirt, and Nicholas, for the appel-lees.
    
      
       Partition — Irregularity —Acquiescence—Effect of.— There is no principle better settled than that apar-lition long acquiesced in by the parties generally will not be disturbed for irregularity. Colvert v. Millstead, 5 Leigh 99, citing the principal case as authority.
    
    
      
       Note. See the case of Carter’s trustees v. Washington and others. 2 H. & M. 345-355.
    
    
      
       Note. The decree of October 1798, (setting aside the exchange of allotments, made, "by consent of parties,” in May 1798) was founded on the affidavit of a certain Benjamin Dawson, stating “that he was agentfor the defendant; that, before the division by the commissioners took place, he objected to the including of Semple’s tract in the defendant’s share; that he was answered that the difficulty would be removed by his taking Charles Carter’s share for the defendant; — which he declared himself willing- to do if it was made equal in value to the others: that he either informed, or meant to inform, the defendant’s counsel of these circumstances, and that he dissented to taking this lot for the defendant, because it was inferior in value to the other allotments; tout was misunderstood. by him.” — Note in Original Edition.
    
    
      
       The chancellor’s opinion was, "that a receiver of rents and proiits should, like a receiver of a principal debt and interest for a third person, account, for the same with interest, which, in this case should commence from the filing of the bill,” (which took place on the 5th oi June, 1794); “but Cor the consent of tile plaintiffs to take interest from the beginning of tile year a fter the last rent was received.” — Note in Original Edition.
    
    
      
       The time when Robert Garter received the money of Semple did not appear. The date of the deed was the 2d of November, 1762. — Note in Original Edition.
    
   March 20th, 1816, the president pronounced the following as the court’s opinion.

It seems lo the court here that the partition of the lands in this case, was made under an interlocutory decree, which proceeded on the principle, that the sale by Robert Carter to Semple was null and void; and the lands embraced by that sale were included in the division, in the same manner as if the sale had never been made. If the sale to Semple were now to be regarded as null and void, the partition, as first made, would undoubtedly bé confirmed by this court, as there is no evidence of any inequality. That principle, however, was abandoned by' the final decree; and this court thinks that it was correctly abandoned, under the particular circumstances of the case. The chancellor nevertheless has confirmed the partition made as aforesaid, with the following alteration ; — in lieu of the lands sold to Sem-ple, and which had been allotted to Charles Carter, he has decreed to the said Charles Carter’s representatives the purchase money which Robert Carter had received therefor, with interest thereon.

The first question to be decided is, whether the partition, as thus modified, shall be established?

The question should be considered, as if Robert Carter were now alive and before this court; and it will be much simplified by recollecting that all the other parties assent to the partition, as made by the final decree; and of course, that it will not be disturbed, unless it be shewn to be improper, in relation to him; nor will it be sufficient even for him or his representatives to shew that some other mode of division might originally have been more regular; for the petition having been so long acquiesced in, and acted on by all others, he will not now be permitted to impeach it, but ou the ground of its being unjust or illegal.

* Thecompany having agreed to sanction the sale of the land which Robert Carter had made to Semple, they had a right to consider as their’s the money which he had received for the land; and being the proceeds of the sale thereof, they had a right to consider it, in the division, as land; and to allot it, accordingly, to one, or to divide it among all the partners. The substitution of the money for land cannot be unjust or illegal, as to him by whose act the substitution became necessary; — and cannot therefore afford any just ground for objection to the partition. The court perceives no impropriety in the allowance of interest on the price of the land. But if it were disposed to doubt its propriety, or general principles, the conduct of Robert Carter would remove that doubt, — for, in the very exception on which his counsel so much relies, he expressly declares his willingness to account for the interest.

The interest is not to be regarded as profits on land, but, when added to the principal, is to be regarded as representing and substituting the value of Semple’s land in the partition. Considered .in this view, the partition could be objected to, on the ground of inequality only. The only evidence on this point is that furnished by Robert Carter himself: that lot, or portion, to which this money with its interest was attached, and of which it constituted a part, was offered ' to him; but he rejected it, on the sole ground of its being of inferior value: When, therefore, it has been assigned to another, who receives it without objection, it would not be permitted to Robert Carter to say that it was of too great value.

A partition which is thus just and proper, in relation to all the partners of the company, not excepting even Robert Carter himself, cannot be set aside by considerations which relate to a contest, between his representatives only.

■ That contest is as to the fund out of which the money decreed against Robert Carter’s estate shall be paid. His son and executor George Carter, who is also the residuary legatee, insists that it should be charged on all the real estate of the said Robert Carter, in Virginia; or that, if it be not so chargeable, it ought to fall, at least, on his interest in the lands of the Frying-pan company. The first position can prevail only on the idea of the validity of the contract, to that effect, between Robert Carter and his children, as contended for by the ^counsel of the appellant. But that was merely a plan proposed for the division of Robert Carter’s lands in Virginia, which was never carried into a contract. A Mr. Queenlain, who married a daughter of Robert Carter, after that plan had been proposed, and after she had signed a paper purporting to be an acceptance of that plan, laid claim to that portion which was to have been allotted to her, and forbade a division of it among her children, as wished by Robert Carter. In a letter from Robert Carter to his son, the present appellant, shortly before his death, and in direct reference to this controversy with Queenlain, he gives a detailed account of all the proceedings in relation to the proposed plan, for the purpose of shewing that it was never executed. He expressly says that the plan was rejected by him, and that neither Mr. Maund, nor any other person, ever proposed a second. It is very evident also, from another circumstance, that he never considered the proposed plan, as having been carried inco a contract: — -The plan proposed contemplated the Frying-pan lands, whereas the plan executed expressly excludes them: — moreover, instead of a joint bond and mortgage (as contemplated by the plan proposed,) that adopted was to convey the property .by deed, subject to such provisions and conditions only, as the' deeds contained; among which, the payment of debts is not to be found. The claim of the appellant, therefore, so far as it depends on this alleged contract, falls to the ground.

Nor does the court perceive any reason for charging this money on Robert Carter’s, portion of the company lands. These-lands passed by his will, which intimates, no intention thus to charge them.

This money is, as to Robert Carter, a debt due to the company; and the personal estate-, when competent to the purpose, is-the proper fund for the payment of debts. In addition to which, the personal estate is, by this will, expressly charged with such payment.

But the court considering that the appel-lees ought not to be relieved in equity, but on the terms of their acquiescing in the leases, and agreements of lease made by Robert Carter before the 26th day of January, 1778, .the date of his letter to Mann Page and others; (especially, as they claim a share of the rents arising from such leases and agreements;) is of opinion, that *the several parties should hold the lands severally allotted to them,' subject respectively to all such leases, or agreements of lease, as they would be subject to, if they had been the sole property of Robert Carter: and that liberty should .be reserved to the defendants, representatives of Robert Carter, to resort to the chancellor for specific execution, if the tenants, or persons claiming under such agreements, shall proceed against them, or either of them, for damages out of the estate of Robert Carter, on such agreements.

The court therefore reverses so much of the decree of the chancellor as contravenes this opinion, and, affirming the residue,' remands the cause to be finlly proceeded in, according to the principles hereby declared.  