
    Josiah Legrand v. the President and Trustees of Hampden Sidney College.
    Decided January 21st, 1817.
    1. Evidence — Private Acts of Assembly — Judicial Notice. — Though private Acts of Assembly may be given in evidence, without being specially pleaded, they are not to be taken notice of, judicially, by the Court, as public Acts are, but must be exhibited, as documents, if not admitted by consent of parties.
    2. Trustees of College — How They May Sue. — The Trustees of a College, being incorporated, may sue by their corporate title, without setting out their individual names.
    3. Specific Performance — Agreement for Sale of Corporation Land — Seal.—A written agreement for sale of the lands of a Corporation, though not with the common seal affixed, may be enforced in Equity.
    4. Same — Agreement for Sale of Land — Title—Case at Bar. — In a written agreement for sale of Land, it was described as a tract which had escheated to the Commonwealth and by the Commonwealth had been given to the Vendor, who stipulated to make compensation, if a better Title than his should thereafter be established. The title of theVendor appearing to be such as described: on a Bill in his behalf for specific performance, the purchaser was not allowed compensation for locating and obtaining a Patent for part of the Land as waste and unappropriated, but was decreed to release his claim under the Patent, before the Vendor should be compelled to make him a Deed; aijd a stipulation, conforming to the agreement, was directed to be inserted in such Deed.
    See Alexander v. Greenup, 1 Munf. 134-149.
    The Appellees exhibited their Bill against the Appellant in Charlotte County Court in Chancery, setting forth, that, on the 9th of January 1807, they agreed with the said Legran d to sell him their right to a Tract of Land, lying in the County of Prince Edward on the waters of Appomattox, containing by estimation 912 1-2 acres, for the sum of four thousand dollars, payable in four equal annual instalments, with legal interest from that date; they to give him immediate possession, he to give, when required, Bond and Security for the purchase money, and thereupon they to make him a Deed in fee, with special warranty, against them and their successors, only, and with a particular agreement as to the manner in which the said purchaser should be compensated, by ‘ ‘re-payment of the Money without Interest, if a better title than that of the College to the said Land, or any part thereof, should thereafter be established:” that, in pursuance of this agreement, the defendant was forthwith put into possession, which he had ever since held; but, pretending that possibly the title of the complainants might not be good, though at the time of the contract the nature of their title was fully understood by him, and plainly set forth in their written agreement, he refused to give Bond for the purchase money, or to “pay the instalments already due. The Complainants therefore prayed a specific execution of the Contract; or, if, on account of the insufficiency of the defendant, the Bond and Security could not be obtained, or the Money when due, that then the Complainants might be permitted to retain the Title to the said Land, and obtain such relief as should be agreeable to equity.
    The defendant demurred generally. The plaintiffs, with leave of the Court, amended their Bill, and set forth, that, at the defendant’s request, their agents had furnished him with the muniments of Title, and Charts and copies of Deeds of the Land; he promising to use his endeavours to perfect the title; instead of which, he surreptitiously obtained a Patent from the Common wealth for part of the Land as waste and unappropriated, under which he sets up a Title of his own against that which he had bought of the College: they pray, therefore, if specific execution of the Contract be denied, that he be decreed to release to them his pretended title derived from the patent, and for general relief.
    The written Agreement, exhibited as part of the Bill, bearing date the 9th of January 1807, “between Charles Scott, Isaac Read, and William M. Watkins, acting for Hampden Sidney College, by virtue of an order of the President and Trustees thereof, on the one part, and Josiah Le-grand on the other part,” described the Land, as “containing 912 1-2 acres by a late Survey, made about the first of last November, and as part of the Lands for merly possessed by Robert Rutledge deceased, and which escheated to the Commonwealth, and were afterwards given by the Commonwealth to the said College.” The terms of the agreement were in conformity with the description of it in the Bill.
    The defendant demurred specially to the amended Bill; 1st, because the names of the President and Trustees were not set out; 2d, because the seal of the College was not affixed to the Contract, nor did it any way appear that the same was the act of the Corporation.
    In June 1813, the County Court sustained the demurrers, and dismissed the Bill. The College appealed to the Superior Court of Chancery at Richmond.
    *In January 1814, CHANCELLOR TAYLOR reversed the Decree, over ruled the demurrers, retained the cause, and ordered the defendant to answer.
    The defendant then filed his answer, admitting the agreement, declaring he had always been ready to execute it with good faith; that the plaintiffs promised to shew him their title-papers, but had never done so; that he had seen only some extracts from some of them, from which he had reason to think the title defective, but thought it unnecessary to state the particulars of his objections, until the papers should be produced. He insisted that, if the title of the Commonwealth to a part of the Land (in consequence of which he had taken measures to obtain a Grant) should be found good, he had a right to a rateable deduction from the price, by the terms and spirit of the Contract. He denied any knowledge of the title at the time of his purchase; averring, that he then believed it good. He now prayed that, before he should be compelled to execute the Contract on his part, the plaintiffs might be obliged to produce their title deeds; that a Survey of the Land be directed, and an inquiry made as to their title to every part. He doubted also their authority to sell according to the agreement, and prayed that such authority be shewn to the satisfaction of the Court.
    The plaintiffs (besides the articles of agreement) made exhibits of four Deeds, from different persons to Robert Rutledge, dated in the years 1763, 1764 and 1765, for twelve hundred and seventy two acres in all; two Inquests of Escheat, dated May 23d 1794, by which those Lands were found to belong to the Commonwealth, “except as much thereof, as was sold for public taxes,” Robert Rutledge having died without any heir “claiming the same;” and a plat of the Survey, in November 1806, of the Land sold by the College to Legrand.
    They also proved by the deposition of Richard N. Venable, that Legrand informed him, that he as well as his son understood surveying, and if the deponent would procure all the information he could on the subject, and put it in his possession, he would make a thorough examination, and communicate to the deponent any discovery he could make, “and give to the College all the aid that he could:” “in consequence of this assurance, the deponent obtained extracts from a *number of conveyances, which he thought related to the subject, also extracts of Deeds for what he supposed to be the adjoining Lands, as far as he could come to the knowledge of them, and delivered them to the said Legrand, or his messenger.” The deponent believed that no other person, but the said Legrand' himself, set up a claim, to the said Land, adverse to the College.
    At January Term 1815, the Chancellor decreed, that the defendant pay to the plaintiffs, 4000 dollars, with Interest from January 9th 1807, and Costs; and, on such payment made, and the defendants executing a release to the plaintiffs, in due form of law, of all claim, which he had or might derive from any Patent, which had been or might be obtained by him from the Land Office, for the Tract of Land, in the Bill mentioned, or any part thereof, the plaintiffs should make him a Deed in fee for the Land, with such special Warranty and Covenants as were stipulated in the Articles of Agreement; without prejudice to the lien of the plaintiffs on the Land itself for the purchase money; liberty being reserved to them to resort to the Court, in this cause, to enforce the said lien.
    From this Decree, the defendant, upon his Petition, was allowed an Appeal by a Judge of this Court.
    Wickham for the Appellant.
    The Vendor is always bound to shew, that he can make a good title before the Court will decree specific performance. In this case, no Title to the Land is shewn by the College. It is said, -that we are bound to shew the defect of the title: but such is not the rule of evidence. If they have a Title, let them shew it. But there is no document in the Record shewing a transfer to the College of that right, which the Commonwealth had to the Land, either, originally, as waste and unappropriated, or subsequently, as escheated. The Commonwealth’s original right could not be estopped by any inquest of office, but might still be granted to Legrand. Besides, the Inquest itself amounted to nothing; for it is not found by the Jury, that Rutledge died without any heir, but merely that he left no heir “claiming the land.” If, however, the Escheat were valid, the Commonwealth, and not the College, is entitled under it.
    *1 understand that an Act of Assembly is relied upon; but no such Act is inserted in the Record. This Court therefore cannot take notice of it, being a private Act. It should’ appear, too, that the President and Trustees had power to sell the Land; for, if they were only entitled to receive the rents and' profits, they could convey no Title.
    The Chancellor’s Decree is farther erroneous in requiring the Appellant to pay the sum Of S4000, with Interest, absolutely, (instead of being upon condition, that the plaintiffs should make him a Title to the Land in controversy;) and in compelling him to release his rights under the future Grant in the proceedings mentioned; whicn was both unjust and unnecessary. Under the terms of the agreement it was proper, and according to the course of equity, for the Court to direct an inquiry into the title, previous to a Decree for the payment of the Money; and, instead of decreeing the Purchase Money to be paid absolutely, the regular and legal course of the Court is to decree payment of the Purchase Money upon the delivery of a Deed; so as to make the two acts concurrent.
    Bouldin for the Appellees.
    There was a provision in the Contract that the College should make good to Legrand, at the rate of-twenty-six shillings and three pence halfpenny per acre, any Land, he might lose by a defect in their Title. The Records of Prince Edward County Court would have given him all the information he demanded in his answer. He is not an unwilling purchaser: he does not come before the Court, praying to be discharged from the Contract on the ground, that he did not understand the defects in the Title at the time of his purchase. I admit that an unwilling purchaser will not be compelled to take even a doubtful title: but Legrand is willing to hold the Land, of which he is in full possession and enjoyment; but appears only unwilling to pay the money I
    Rutledge’s title is unimportant. The College, being entitled under the Act of Assembly, ought not to be bound to trace their Title farther back, than to Rutledge, from whom it passed to the Commonwealth by Escheat, and from the Commonwealth to the College. Both parties understood distinctly that they were not to trace it farther back. Legrand himself *has no objection to specific performance, but his having himself obtained a Grant for part of the Land as waste and unappropriated.
    The Act for incorporating Hampden Sidney College expressly authorizes the Trustees to sell the College Lands. This power of the Trustees is also recognized in the agreement itself.
    The Court has very correctly decreed, according to the agreement, that a Covenant shall be inserted in the Deed, binding the College to make good any loss, that may be sustained by a better title in other persons. It was therefore just and right to decree, that Legrand should release his claim on the ground of the Location and Grant; because, without such release, that claim might be transferred by him, and enforced by the transferee.
    In Colton v. Wilson,  great stress is laid upon the circumstance, that the purchaser, who wished to get clear of the Contract on the ground of objection to the title, had taken possession of the Land, and was therefore considered as accepting the Title, such as it was. In Calcraft v. Roebuck,  it is said that every consideration, upon which these agreements are to be executed, must depend on the bona fides of the transaction.
    Leigh on the same side. The Contract was, that if,Legrand should be deprived of any part of the Land thereafter, he should be re-imbursed proportionally by the College; not that he should be entitled to a deduction before payment: that such reimbursement should be made upon his being ousted by a better title in another person ; not that he had a right to set up claims in objection to his own Title.
    Are there any reasons, set forth in his answer, for questioning the Title? He does not tell us whether he found out defects before he took possession, or since. But, I say, the Title is satisfactorily deduced: and, according to the practise of the Courts of Chancery in this country, ■ it was not necessary to refer it to a Master.
    The plain meaning of the Inquests of Escheat must be understood to be that there were no heirs of Rutledge. Our law *provides that private Acts of Assembly may be given in evidence, without pleading them specially. In Hunter v. Fairfax’s devisee,  this Court went on the principle, that they could look into and decide upon a private Act of Assembly, though not part of the Record. 
      'The Act of 1794, ch. 37, shews the transfer to the College of the Title from the Commonwealth.
    Objections to the identity of the land are out of the question.
    Mr. Wickham says, that payment of purchase money, and delivery of a Deed from the College ought to be co-temporaneous acts. I should agree to this, were it not for the circumstance, that Regrand had obtained a Grant for part of the Rand. The Chancellor very properly denied his having a right to do this to the injury of his title, derived from the College. It never could have been understood, that they meant to indemnify him against defects, that he could make in the title. A release from him was essentially necessary to enable the College to make him a title.
    Wickham in reply.
    Every position that I have taken in argument was taken in the Answer; in which, however, the defendant gives a sufficient reason for not particularly setting out defects in the title: viz., because the title-papers were not before him.
    If parties contract under a mistake as to title, will not the Court give relief? Where is the immorality in our strengthening our title by getting a Grant from the Commonwealth? Surely we ought to be allowed our trouble and expenses; but the Chancellor has allowed us nothing. The College, being plaintiffs in Equity, are clearly bound to do complete equity to the defendant, before the Court will decree specific performance. It was their duty to produce to him their title papers.
    The Act for incorporating the College is not inserted in the Record, and therefore cannot be regarded by the Court. I ’’■'understand the rule to be that private Acts of Assembly may be given in evidence without pleading; but they must be given in evidence as facts: they are not matters of law, judicially to be taken notice of by the Court. The doctrine, that the Court is bound to take notice of every private Act, that has been passed since the foundation of the Commonwealth, is fraught with such mischievous consequences, that I cannot think it can obtain. As the Record now stands, I deny that these Acts were given in evidence to the Chancellor. If they were, it should either have been stated in the Decree, or they should have been spread on the Record in extenso. This Court cannot receive any new evidence, which was not before the Court below.
    Whether Regrand got something or nothing by the Grant, the Release was unnecessary. All, that is wanted on his part, is a conveyance, from the College, of their title, which, added to his own under the Grant, will make his title complete.
    Why was he not to take possession? He does not seek to disaffirm the contract. This Court has often decided, that taking possession does not preclude the party from getting relief on the ground of defect of title. Such was the case of Beverly v. Rawson’s heirs, 3 Mutif. 317.
    It appears by one of the Inquisitions of Escheat, that part of the land was sold for taxes. For the deficiency, so occasioned, the Appellant ought to be compensated by the Decree. 
    
    The counsel for the Appellees afterwards obtained a certificate from Chancellor Taylor, in these words] “As to what passed on the trial of this case, before me, I cannot undertake to say. But I can state, with great certainty, that the Court of Chancery never dispensed with any thing, called for by the pleadings, unless by consent of parties. All the counsel know, and my side-table now exhibits the fact, that many cases are now resting on it under such circumstances; and, I can have no doubt, as the answer in the case puts the authority *of the Trustees to sell, in issue, but the Act of incorporation was either produced, or the necessity of it was waived by the opposing counsel. I feel so confident of it, that, if I were commanded, as the Judge of my Court, to certify a more complete record under a certiorari, I should have incorporated in it a copy of the charter, as omitted, under the head of “sundry exhibits.”
    (Signed) Creed Taylor.
    “January Term, 1817.”
    In consequence of this certificate, and by consent of the parties by counsel, the Court inspected the Act of Assembly of May, 1783, ch. 172, and considered it as a part of the Record.
    
      
       Evidence — Private Acts of Assembly — Judicial Notice. — See monographic note on "Evidence” appended to Lee v. Tapscott, 2 Wash. 276.
      The principal case is cited in Stribbling v. Bank of the Valley, 5 Rand. 155,171; Hart v. B. & O. R. R. Co.. 6 W. Va. 350.
    
    
      
      Agreement for Sale of Realty — Seal of Corporation. — The seal of a corporation is not necessary to give validity to an agreement for the sale of real property. Banks v. Poitiaux, 3 Rand. 136, 143, 147, citing principal case.
    
    
      
       May 1783; ch. 172.
    
    
      
       3 P. Wms. 193.
    
    
      
       1 Vesey jr. 224.
    
    
      
       1R. C. ch. 76, sect. 30, p. 112.
    
    
      
       IMunf. 218.
    
    
      
       Note. Judge Roane observed to Mr. Leigh, that, in that case, he considered the Act of Compromise as a letter to the Court, directing Judgment to he entered up: notas a part of the Record, but as a matter in pays. Mr. heigh replied, that he believed it would be found, that the point was settled by that case, that a private Act may be relied upon, though not in the Record. — Note in Original Edition.
    
    
      
       Note. See Hull v. Cunningham’s Executor, 1 Munf. 330 and 336.
    
    
      
       Note. This exception .was not taken intheAn-swer: and indeed appears to be unfounded under the agreement; for by the Inquests, the land sold for taxes was expressly excepted as not escheated; and, by the agreement, the defendant was to have only such of the lands as were “escheated.” — Note in Original Edition.
    
   January 21st, 1817. JUDGE ROANE pronounced the Court’s opinion as follows:

The Court, in consequence of a certificate from the Chancellor, filed among the papers, have inspected the Act of May, 1783, ch. 172, and considers it a part of the Record; the necessity of a certiorari being waived by counsel; and so considering it, is of opinion that there is no error in the said Decree, which is therefore affirmed. 
      
       Note by the Reporter. The Court s eems not to have considered it necessary to m ake the Act of 1794. ch. 37, a part of the Record, because the donation of the escheated lands from the Commonwealth to the College was not put in issue bv the Answer, as was the right of the Trustees to sell. Indeed, the fact of that donation might well be considered, under the circumstances of the case, as admitted by the defendant. — Note in Original Edition.
     