
    Thomas H. Luckett vs. Stephen White and others.
    
      December, 1839.
    After an order of publication against non-resident defendants to a bill in chancery has been published, and a decree passed taking the bill pro confesso, in consequence of the neglect of the defendants to appear and answer, the allegations of the bill are considered as admitted.
    A devise to one of the testator’s sons of his real estate, “he paying to his younger brother one hundred pounds current money,” creates a charge upon the lands devised, which a court of equity will enforce.
    It is too late to object to a bill upon the ground of multifariousness, after a decree pro confesso has passed; and a demurrer is the proper form in which such an objection should be presented.
    The admissibility of a paper purporting to be a will executed and proved in Virginia, cannot be objected to in the Court of Appeals, no objection having been taken to it in the Court of Chancery.
    
      The provisions of the act of 1795, ch. 88, authorising non-resident defendants, against whom doeroes pro confesso may have passed for want of ap. pearanco after publication, to require a review of the same by the Chancellor within eighteen months from the date of such decrees, applies also to the decrees of the Court of Appeals.
    The Chancellor, in such a case, may entertain a bill to review a decree of the Court of Appeals.
    Appeal from the Court of Chancery.
    The original bill in this cause was filed on the 27th June, 1825, by the appellant, Thomas II. Duckett, of Loudon county, 'Virginia. The will of his father, Thomas H. Duckett, was dated on the 27th December 1786, and after declaring that his wife Elizabeth should have the full possession of his whole •estate, real and personal, whilst she continued his widow, and that she raise and -educate his children, proceeded to devise as follows:
    
      “I give and bequeath to my oldest son Otho, his heirs and assigns forever, all the land that I bought of William Hough, in Montgomery county, Maryland, he the said Otho paying to his younger brother, not yet baptized, (the complainant,) one hundred pounds current money of Virginia, as at this time valued.”
    The testator then made a similar bequest to his son Valentine, of all the land bought of his brother John L/wckett in the same county, subject to a like charge of one hundred pounds.
    The bill alleged that, the land called “Conjuror’s Disappointment” and “Georgia” wrnre purchased from John iMclcett. That “Gleanings” and “Resurvey upon Discord” were purchased irom William Hough, and that the will, executed according to the laws of Maryland, was duly admitted to probal in Virginia; that Elizabeth Luckell died a widow in 1817. That in 1805 the said Elizabeth relinquished to Otho and Valentine respectively, all claim she had to the land devised to them, to enable them to convey it to one Samuel Clapham of Virginia, and said land was accordingly so conveyed; at which time complainant wms a minor. That after he arrived at age, and became entitled to said legacies, he exerted himself to procure payment of the same from his said brothers, and from the sai<? Clapham, who had purchased the said lands, and would long since have resorted to suits at law, but for the unsettled residence of his brothers, so that he could not know in what place to institute such suits successfully; and so long as there was any, the remotest probability of being able to recover the said legacies from his brothers, his sense of justice would not allow him for a moment to entertain the idea of resorting to the land upon which the said' legacies had been thus charged, as the same had by a fair bargain and sale passed into other hands, to wit, into the hands of the said Clapham for a valuable consideration, but not without notice of the said incumbrance; that his brothers being unable to pay, he again applied to Clapham, who had now sold the land to Daniel Trundle; that both Clapham and Trundle knew that the said legacies were a charge upon the lands, when they respectively purchased the same, and have been-continually reminded thereof, and neither of them are innocent purchasers without notice. The bill also claimed interest on the said legacies from the period of the father’s death, or at least'from the time of Elizabeth’s acquittance in 1805 to her sons ;• also, publication against Clapham, and Otho, and Valentine, and subpoena against Trundle; a salé of the lands; payment of the legacies, and for general relief.
    With this bill were filed as exhibits; deeds of 30th December 1-784, and'41h March 1785, from John Duckett to Thomas IT. Duckett the elder; the will of said Thomas H. Duckett; the release-of Elizabeth Luckett of 6th May 1805; the deed of William Hough and Elizabeth Duckett of 30th October 1800, to Otho Duckett; the deed of 6th May 1805 -from O. W Duckett and Valentine P. Luckett to Samuel Clapham; the deed of 2nd April 1812, from Samuel Clapham to Daniel Trundle; proposal from T. H. Luckett of 13th May 1823; to Samuel Clapham for a reference, and his refusal.
    An order of publication as to Otlio and Valentine Duckett and Samuel Clapham, was passed on the 27th June 1825.
    
      Daniel Trundle appeared and answered this bill. He admitted that he did purchase of the defendant Clapham the lands described in the complainant’s exhibit No. 9; — that he obtained a conveyance for the same in the year 1812, and has ever since been in the undisturbed possession of the land thereby conveyed, without having ever had it intimated to him until the year 1823, that the complainant or any other person had any claim on the said land. This defendant admits, that in the course of the year 1823, the complainant did mention to this defendant that he had a claim under the will of his father; — that he had then paid the whole of the purchase money, and could not suppose why, if the claim really existed and had not been satisfied, steps should not have been previously taken to recover it. This defendant states that the complainant concealed the claim which he now sets up from this defendant, and suffered this defendant to pay the purchase money without any notice of it, althoug'h this defendant is unable to state what is the age of the complainant, yet if the paper which he has filed as a copy of his father’s will be correct, (which this defendant cannot admit,) and if the complainant be the person mentioned therein he must have been born on or before the year 1786, and of course must have been twenty-one years of age in 1807; the purchase was made by this defendant in 1812, and yet no claim was set up — no notice of any' such claim was given to this defendant — until the year 1823. Such conduct on the part of the complainant would, this defendant is advised, have deprived the complainant of all equity as against this defendant or the land in his possession, if he could have shown himself entitled to relief had an earlier application been made for it. This defendant expressly denies that, at the time he made the purchase as aforesaid, or when he paid the purchase money, or when he took the conveyance for the land, he had any notice of the claim of the complainant now set up, or any reason to believe that there was any lien upon the land. He purchased of the defendant Clapham, who obtained his deed from the eldest son of the complainant’s father, who died in 1786 or 1787, and of course the defendant Olho W. Luckett was the heir at law of the father. This defendant has long since paid for said land a full and valuable consideration, without notice of the claim of the-complainant; he therefore insists that, being a bona fide purchaser without notice, the land in his hands could not beeharged with the payment of any claim, as stated by thé complainant, even if the claim could not be resisted by this defendant on other grounds. But this defendant insists that the length of time which has been suffered to elapse since the-claim, if it ever existed, might have been enforced, before the filing of this bill, or the giving of any notice to this defendant of the claim-, would of itself furnish- a bar to any relief, and he pleads and insists upon- the same, as furnishing proof that the claim, if it was just, has been satisfied. As to what is (stated in the bill of complaint in order to account for the delay, this defendant does not admit the same; the defendants Otho and Válentíne and the complainant resided a number of years in Maryland, and as to the insolvency of said Otho and Valentine, this defendant herewith produces exhibit A, which he prays may be taken as a part of this answer, and which will show that both of them applied for the benefit of the acts of insolvency as long ago as the year 1810, This defendant does not admit the allegation in the bill with regard to the defendant Clapham, and if it was true, this defendant insists that it could not prejudice this defendant. This defendant does not believe, and does not admit, that the complainant’s exhibits,, with the exception of the deed to this defendant, are correct. He believes it to be true that the mother of the complainant never married again. He does not know when either she or her husband died. This defendant has already denied all knowledge of the legacy at the time he purchased the land; what knowledge Clapham had, this defendant is unable to state. This defendant has already stated when the complainant first stated to him his claim, and never afterwards, according to the recollection of this defendant.
    
      Samuel Clapham also appeared and answered said bill. He admitted the statement of complainant’s bill to be correct relative to his father’s land, and will, which was made in the year 1786, and that it may have been executed and attested according to the then laws of Maryland, and admitted to probate in the court of Loudon county, Virginia; yet of its due and legal execution he does not pretend to judge. He admits the devises to Otho W. Luckeit and Valentine B. Luckett, subject to the payment of <£200, to be correctly stated in the bill; which sum was to be paid to the complainant, at that time unnamed; and that all his land, together wTith his personal estate, was devised to his wife, while she continued his widow, and refers to the will as part of his answer; that Elizabeth Luckett moved to Kentucky he believes in the year 1816, and died as he has been informed in the year 1817, a single and unmarried woman.
    This respondent admits the deeds mentioned from E. Luckett to her sons, but cannot say whether there was or was not a consideration absolutely given' — -they were made preparatory to their deeds to him, and for their true construction he refers to the deeds themselves, At the time the deeds were made, the complainant was privy to all the transactions relative to the bargain, and it was distinctly understood that E. Luckett was to pay the money which the sons were bound for; the deeds from E. Luckeit to her sons, and from them to this respondent, all bear date in May 1805; and Elizabeth Lucketl had always acted for the complainant, and he confirmed her acts when he came of age. The very land on which the complainant’s father died, lying in Loudon county, Virginia, was during his minority sold by her to this respondent, and the purchase money paid to her, and long after he had arrived at lawful age (he thinks in 1816) he made him a deed for the land, to a copy of which he begs leave to refer, and never insinuated a claim against this respondent. His mother moved into Virginia from Fredericktown, Maryland, and lived on land under the direction of this respondent; the complainant lived with her; and in 1816 he thinks she removed to Kentucky, and he went with her; from 1805, when the deeds were executed, until the period of removal, he was often, very often, with the respondent, and might have communicated his pretensions, but never did, notwithstanding his circumstances were needy.
    . And further answering saith, that about the year , being since the deeds of 1805, Valentine and Otho W. Duckett availed themselves of the insolvent debtors’ act in the State of Maryland.
    
    On the -26th February 1829 the complainant filed an amended and supplemental bill, and bill of revivor. This bill alleged the death of Samuel Clapham without heirs, leaving ■Elizabeth Clapham his widow; that in the original bill it is stated that the said Samuel Clapham had sold all the lands which he purchased from said Valentine and Otho to Daniel Trundle, whereas, it should have been alleged that, the said Clapham had sold the parcel of land called “Resurvey upon Discord” to the said Daniel Trundle, and that the said Samuel Clapham did on the 17th day of June 1824, by deed executed by himself and wife of the one part, James B. Murray of the second part, and James Thompson of the city of Mew York of the third part, convey the said three parcels of land called “Conjuror’s Disappointment,” “Georgia” and “Gleanings,” to the said James B. Murray, in trust, to sell the same for the payment and satisfaction of a debt due by the said Samuel Clapham to the said James Thompson, in case the said Samuel Clapham should not perform the condition of a bond referred to in the said deed of trust. That the said Samuel Clapham failing to comply with the condition of the said bond, .the lands mentioned in the aforesaid deed of trust were sold by the said James B. Murray to a certain Elisa Thompson, Peter Augustine Jay, and Eliza Ratcliffee, of the city of Mew York, executors of the last will and testament of the said James Thompson, and conveyed by deed bearing date the 9th day of June 1828. Your orator alleges and charges that the said James Thompson and James B. Murray were aware and had full notice of your orator’s claim to the said lands at the time of the execution of said deed of trust, and that the said Eliza Thompson, Peter Augustine Jay, and Eliza Ratcliffe knew of the said claim when they purchased the said land; the proceedings under the original bill of complaint being then pending in this honorable court. That the said Elizabeth Clapham resides in Virginia, the said Otho H. Luckett and Valentine P. Luckett also reside in Virginia, as your orator believes, and the said James B. Murray, Eliza Thompson, Peter A. Jay and Eliza Ratcliffe in the city of New York.
    
    The bill then prayed for an order of publication against the said parties, and for relief, &c.
    The deeds referred to in this amended bill were filed with it as exhibits, and an order of publication having been passed and published, the chancellor, on the 9th October 1829, passed the following order:
    The complainant having produced proof of the publication of the order passed on the 27th day of February 1829, according to the terms of said order, and the defendants, Otho H, Luckett, Valentine P. Imckett, Elizabeth Clapham, James B. Murray, Eliza Thompson, Peter A. Jay and Eliza Ratcliffe, not having appeared and answered the premises within the time limited by said order — it is thereupon this 9th day of October 1829, upon consideration of the original bill and exhibits, and all other the proceedings, adjudged, ordered and decreed, that the original bill be taken pro confesso against the said Otho H. Luckett and the said Valentine P. Luckett, and the amended and supplemental bill, and bill of revivor, be also taken pro confesso against the said Otho H. Luckett and Valentine P. Luckett, and the said Elizabeth Clapham, James Br Murray, Eliza Thompson, Peter A. Jay and Eliza Ratcliffe„
    The genera] replication was now7 entered, and a commission issued to take proof.
    On the 8th May 1832, the complainant filed another bill of revivor, alleging the death of Daniel Trundle, leaving as his heirs Mary Elizabeth, the wife of Benjamin Shriver, and Ann, the wife of Stephen White. — -Prayer to make them parties, &c.
    The heirs of Trundle appeared and relied upon his answer to the original bill as their answ7er. A commission was issued and proof taken, which is sufficiently referred to in the opinion of this court.
    At September term 1837, the Chancellor (Bland) being of opinion that, apart from the strong presumption against the plaintiff’s claim, arising from great lapse of time, it was not sustained by legal, sufficient and convincing proof, dismissed the bill with costs.
    From this decree Thomas H. Luckett appealed to this court
    The cause was submitted on the written arguments of counsel to Buchanan, C. J., Stephen, Archer, Dorsey, Chambers, and Spence, J.
    By S. Pinkney and J. Johnson for the appellant, and
    By J. C. Cooke and A. C. Magruder for the appellees.
   Spence, Judge,

delivered the opinion of the court.

The object of the bill in this cause is to coerce the payment of a legacy by the sale of certain real estate mentioned in the proceedings, upon the ground, as the bill alleges, that the same is made a charge thereon, under and by virtue of the last will ■and testament of a certain Thomas H. Luckett.

After filing the original bill, the complainant, as he alleges in his amended and supplemental bill, discovered that he had made a mistake, in charging in his original bill that Trundle had purchased all the lands devised by Thomas H. Luckett to his two sons Otho W. Luckett and Valentine P. Luckett; when the fact was, that the part of the said lands which was devised to Valentine had been conveyed by the said Valentine to a certain Samuel Clapham, and by said Clapham to a certain James B. Murray. Having discovered this error, and learning further that Clapham, one of the original defendants had died, the complainant filed his amended and supplemental bill, in which he charged the conveyance to Murray, and prayed that said Murray, James Thompson, Eliza Thompson, Peter Augustus Jay and Eliza Ratcliffe might be made parties to the bill, and the proceedings revived against the then representatives of Clapham.

The amended bill alleges that the defendants, Otho H. Luckett, Valentine P. Luckett, James B. Murray, Eliza Thompson, Peter Augustus Jay and Eliza Ratcliffe, were non residents, and prayed an order of publication giving said non-resident parties notice of the substance and object of the original and amended bill, and requiring them to appear and shew cause by a certain day, if any they had, why the lands mentioned in the proceedings should not be sold as prayed. On the 9th October 1829, the Chancellor passed a decree “that the amended and supplemental bills, and bill of revivor, &c., be tafen pro confesso against Otho and Valentine P. Luckett, Elizabeth Clapham, James P>. Murray, Eliza Thompson, Peter A. Jay and Eliza RatdijfeP The original bill was also decreed to be taken pro confesso against Otho and Valentine only.

It may be well here to premise that this decree could have no operation or effect upon that portion of the land mentioned in the proceedings called “Resurvey on Discord,” which the testator by his will devised to his son Otho, because he, Otho, had conveyed the same tract of land to S. Clapham, and by Clapham it had been conveyed to a certain Daniel Trundle, who had appeared and put in his answer to the bill, and furthermore, the decree of the Chancellor of the 9th October 1829, was not designed to have any operation or effect upoñ Trundle or those claiming under him.

The first question which is presented for our decision is, what is the legal operation and effect of the Chancellor’s decree of the 9th October 1829?

The neglect to answer, and the order or decree pro confesso$ amounts to an admission of the allegations of the bill against all the parties against whom such decree passes. Robinson et al. vs. Townshend, 3 Gill & John. 413.

The allegations in the bill in this case, therefore, being admitted by operation of the decree pro confesso, against all the parties against whom it passed, the next consideration is, are the allegations and averments in the bill sufficient to entitle the parties to the relief sought, and this enquiry necessarily leads to an examination of the allegations and averments in the bilh

The bill alleges that Thomas II. Luckett the testator, made his last will and testament, which was duly executed and attested, according to the then laws of the Stale of Maryland, and admitted to probate and recorded; that by the same, the-three tracts of land, to wit, “Conjuror’s Disappointment “Georgia” and “Gleanings,” were devised to Valentine P.. Luckett, and the other tract or parcel of land called ilResurvey upon Discord” was devised to Otho W. Luckett, upon the express condition that these devisees should each of them pay to the complainant (who is the younger brother described in said will as not yet baptized,).j£100current money of the commonr wealth of Virginia. The bill states that the testator devised the same lands to his wife Elizabeth Luckett during her sole and unmarried life; that the said Elizabeth Luckett executed to the said devisees, Valentine and Otho, separate deeds of release, and acquittances of all her right and title to said tracts or parcels of land, so as aforesaid devised to them. That the deeds from Elizabeth Luckett and William Hough to Valentine P. Luckett and Otho W. Luckett were executed for the purpose of enabling the said Valentine and Otho to sell said lands to a certain Samuel Clapham, which had been before agreed upon, and was thereby consummated on the same day, .as will appear by copies of said deeds exhibited with and made a part of the bill. The bill charges that no part of the legacy so charged upon said lands had ever been paid to the said complainant; but that the said legacies were still due and unpaid; The complainant prays that a decree might be passed for the sale of said lands, or so much thereof as might be necessary to pay the said legacies with interest.

Assuming then, as we necessarily must do, that the allegar tions in the bill are true — that Thomas H. Luckett the testator devised the said land called “Conjuror’s Disappointment,” “Georgia” and “Gleanings,” to his son Valentine, his heirs and assigns forever, he paying to his younger brother not yet baptized, the sum of ¿6190 current money of Virginia — the legacy is, according to the adjudicated cases, a charge upon the lands thus devised, and one which a court of equity will enforce.

If the objection urged in the argument, that the bill is multifarious, be true, it neither comes at the proper time, (the de■cree pro confesso having been passed,) nor in the regular and proper form, as it should have been presented by a demurrer. Gibbs vs. Clagett et al. 2 Gill & John. 24. Story's Eq. 224. Coop. Eq. Plea. 182.

We are therefore of opinion that there is error in the Chancellor’s decree dismissing the complainant’s bill, as to Valentine P. Luekett, Elizabeth Clapham, James B. Murray, Eliza Thompson, Peter A. Jay and Eliza Ratcliffe.

The next question which arises in this cause is, — whether there is error in the Chancellor’s decree of the 1 Oth October 1837, dismissing the complainant’s bill with costs as to Otho W. Luekett, Benjamin Shriver, Jr. and Mary Elizabeth his wife, and Stephen White and Ann his wife?

The bill of revivor having suggested the death of Daniel Trundle and prayed that the suit and proceedings might stand •revived against the said Benjamin Shriver and Mary Elizabeth 'his wife, and Stephen While and Ann his wife, the heirs at law of Daniel Trundle. Daniel Trundle, to whom Samuel Clap-¡ham had conveyed that part of the real estate mentioned in the proceedings called uResurvey on Discord,” which the testator Thos. II. Luekett devised to his son O. W. Luekett, had appeared to the complainant’s bill in his life time and put in his answer, and admitted that he purchased the land described in the proceedings of Samuel Clapham in the year 1812; that he paid the purchase money therefor and obtained a conveyance from said Clapham, but expressly denies in his answer, that at the time he made the purchase, or when he paid the purchase money, or when he took the conveyance for the land, he had any notice of the complainant’s claim, attempted now to be set up, or any reason to believe there was any lien on the land; and insists that, being a bona fide purchaser, without notice, for a valuable consideration, the land in his bands could not be charged with the payment of the claim relied on by the complainant.

Benjamin Shriver and wife, and White and wife, put in their answers to the bill, and refer in their answers to the answer of Trundle, their ancestor, and rely upon the statements and averments therein contained.

. The argument of the solicitors on the part of the complainant insists, that there is proof sufficient in the record to carry home to Trundle, if not actual, at least constructive, notice of • this charge. The answer, in the fullest and most unqualified - terms, denies notice; and after a careful and patient examination of the record, we are constrained to say, that we have been unable to discover any proof in the proceedings, which • can by any just interpretation be deemed to amount to the proof of notice* If we turn to the allegations in the bill which touch this point in the case, to ascertain what conclusions may be rationally and legitimately deduced from the language used, what is the result ? This is the language of the bill, — “and so long as there was any the remotest probability of your orator’s being able to recover the said legacy from his said brothers, his sense of justice would not allow him for a moment to entertain the idea of resorting to the said land upon which ■ the said legacy had been charged, as the same had by a fair bargain and sale passed into other hands.” — This is the language of the bill filed in the year 1825, to coerce the payment of this legacy out of the land devised to Otho W. Luckett, and which he had conveyed to Clapham on the 5th May 1805, The bill charges that Clapham conveyed the tract of land called the “Resurvey upon Discord” to Daniel Trundle on the 2nd of April 1812, Trundle’s answer avers, that he has ever since that time been in the undisturbed possession, and never heard of thi? claim until some time in the year 1823. Can we in the absence of all positive proof, in the face of Trundle’s answer, which fully and flatly denies notice, from such a statement of' facts, reach the conclusion that Trundle had notice of this charge? We think not.

The doctrine of constructive notice has also been pressed upon us; but let us see with how much more success.

Constructive notice, says Mr. Justice Storey, (Com. on Eq, 387,) “is in its nature no more than evidence of notice, the presumptions of which are so violent, that the court will not allow even of its being controverted.” And this learned judge thus illustrates his rule. “Where the party has possession or knowledge of a deed under which he claims his title, and it recites another deed, which shows a title in some other person, then the court will presume him to have notice of the contents of the latter, and will not permit him to introduce evidence to disprove it. And, generally, it may be stated as a rule on this subject, that where a purchaser cannot make out a title, but by a deed, which leads him to another fact, he shall be presumed to have knowledge of such fact.” Now what is the fact of which Daniel Trundle shall be presumed to have knowledge? It is this: that the tract of land called “Resurvey upon Discord” is charged with the payment of a legacy of ,£100 with interest thereon from 1787, under and by virtue of the last will and testament of Thomas H. Luckett. Now all the proceedings admit that this will never has been admitted to probate or recorded in the State of Maryland; and it is conceded that Daniel Trundle has a deed from Samuel Clapham dated the 2nd April 1812, for this identical land; but in said deed there is not one word about Thomas II. Luckett — his will, or a legacy charged thereon- — to be found. But, says the argument, Mr. Trundle must not stop here. Admit then that he must trace his title back. The next document is a deed from O. W. Luckett to Samuel Clapham for the same land, in which there is not a word to be found about the testator Luckett or his will; and again, we have the deeds from Elizabeth Luckett and Wm. Hough to O. W. Luckett for said lands, the latter of which recites, “that for the purpose of carrying into effect the contract heretofore, to wit, on the 24th July 1804, made between him the said Wm. Hough and Thomas Hussey Luckett, the late husband of the above named Elizabeth and father of the above named Otho; and also for and in consideration of ¿61186.10.5 to him in hand paid by the said Elizabeth and Otho,” and there is not one word said of Thomas H. Duckett’s will, a legacy or charge upon the lands conveyed. This deed recites that it is made for the purpose of carrying into effect a contract made with Thomas II. Luckett more than three years before the will exhibited in this cause was executed. Having traced this title to a point of time in its history anterior to any interest of Thomas H. Luckett, and having sought in vain to discover a fact, or facts which can, under this rule, fix this presumption upon Trundle, we are necessarily driven to another conclusion, which is entirely conclusive; namely, that this case is not within the rule upon which the argument was predicated, and that the averment in Trundle's answer is not invalidated or impaired.

The argument offered against the admissibility of the reported original will of Thomas H. Luckett, as evidence in this cause, finds a conclusive answer in the fact that it was not excepted to in the court below.

Under this view of the case, the court affirm the decree as to Otho W. Luckett, Benjamin Shriver, Jr. and Elizabeth 'his wife, and Stephen White and Ann his wife, with costs; and reverse the same as to Valentine P. Luckett, Elizabeth Clap-ham, James B. Murray, Eliza Thompson, Peter A. Jay and Eliza Ratcliffe, and will pass a decree for the sale of the real estate mentioned in the proceedings called u Conjuror's Disappointment," “Georgia" and “ Gleanings," or so much thereof as may be necessary to pay and satisfy the complainant the • sum of $333,331, (being the value of ¿£100 Virginia currency,) with interest thereon from the 12th February 1788, and the costs of this suit, unless said respondents bring into this court the said sum of money and interest on or before the 1st day of July 1840.

decree reversed.

At June term 1840, the appellees filed the following petition in this cause.

To the Honorable the Judges of the Court of Appeals for the Western Shore.

The petition of Peter Augustus Jay, one of the defendants to this cause, and of Betsy C. Mason, and of Betty Mason, Matilda Mason, Ann Mason, Thompson F. Mason, John Mason, Virginia Mason, Caroline Morris Mason, Arthur Mason, and Clapham Mason, which Betty, Matilda, Ann, Thompson, John, Virginia, Caroline, Arthur and Clapham, are infants under the age of twenty-one years, and now sue, by the said Betsy C. Mason, their mother and next friend humbly shews* that the object of this suit was to procure a decree for a sale of certain lands in the proceedings mentioned, in order to satisfy certain- claims of the complainants, which are therein set forth. And that said cause was so proceeded in that, on the 10th October 1837, a decree was passed dismissing the bill of complaint with costs.

That from the said decree, the complainant appealed to this honorable court, where such proceedings were had, that at December term last past, the said decree in so far as it related to the said Otho H. W. Luckett, Benjamin Shriver, junior, and Mary Elizabeth his wife, and Stephen White and Ann his wife was affirmed, and in so far as it related to the defendants Valentine P. Luckett, James B. Murray, Elizabeth Clapham, Eliza Thompson, Peter A. Jay and Eliza Batcliffe was reversed with costs, and certain of the lands in said decree described, are directed to be sold by Somerville Pinkney esquire, a trustee therein named for the purpose, in order to satisfy unto the said complainants the sum of $333.33^ with interest and costs as are in said decree specified, unless the said last named defendants, or some of them, should pay to the complainant the said principal sum of money with interest and costs, by the first day of July next, as by the proceedings in said cause now remaining in this court will appear.

And your petitioners further charge, that the complainant in his aforesaid bill alleged, that the said defendants, Eliza Thompson, Peter A. Jay, and Eliza Batcliffe, did not reside in the State of Maryland, and in progress of the suit, procured an order of publication to- be passed against them as non-resident defendants, and upon proof of publication of such order and without service of any process whatsoever on them, procured a decree to be passed for taking his bill of complaint pro confesso, as against the said defendants; and the final decree in the cause was likewise passed against them as nonresidents as aforesaid. And your petitioners aver that, in fact the said Thompson, Jay and Ratcliffe, (if the said Ratcliffe is a real person and known to these petitioners) at the time of filing the aforesaid bill of complaint in this cause against them7 were, and ever since have been, and the said Jay and Rap cliffe, the said Thonvpson being lately deceased, now are nonresidents of this State, and never had notice of the proceedings in this suit, until after the decree hacl been rendered in the Court of Chancery, as aforesaid. And your petitioners further charge that, pending the aforesaid proceedings, the interest which it is therein supposed, was vested in the said Thompson, Jay and Ratcliffe, in the aforesaid lands, so as aforesaid decreed to be sold, became vested beneficially by assignment in your petitioners, Betsy C. Mason and her children, who have at all times been, and now are, non-residents of this State.

And your petitioners further charge that, they are aggrieved by the aforesaid decree of this honorable court, which is erroneous for many reasons, as they will he prepared to show in due time; and they did therefore lately file their petition to the' Chancellor, praying a review of the aforesaid decree, according to the. form of the act of Assembly in such case made and provided, and praying leave to file their bill of complaint in the cause, in order that the aforesaid matters of defence may property be put in issue, and the said cause reviewed and determined as if the said parties had .originally appeared, and in the mean time that the said trustee, Somerville Pinkney, may be enjoined and restrained from proceeding to execute said decree by a sale of the aforesaid lands. But his honor the Chancellor, upon consideration of said petition, refused to pass any such order as: was prayed for, and refused to enjoin and restrain the- said trustee as aforesaid, as by a copy of their aforesaid petition, and; the order thereto certified, according to the form of the act of assembly in such case made and provided and herewith filed will appear.

Whereby your petitioners aver, they are much aggrieved^ and are wholly without redress, unless this honorable court will interfere for their protection. Wherefore they pray your honors to pass an order, declaring the right of your petitioners to review the aforesaid decree of this honorable court; and authorising and directing the Chancellor to entertain a bill to be filed by your petitioners, for the purpose of reversing the aforesaid decree, in manner and form as directed by the aforesaid act of assembly, and in the mean time, to enjoin and restrain the aforesaid complainant, and trustee, from proceeding to execute the aforesaid decree, and that your honors will grant them such further relief as shall seem meet, and as, &c.

Archer, J.,

delivered the opinion of this court.

The right of the party to have a review under the act of 1795, ch. 88, we are inclined to believe exists, although the_ decree was passed against the petitioners in the Court of Appeals. No other construction of that act would reach the intention of the legislature. They designed to give to non-residents the privilege within a limited time of reviewing decrees in equity against them. The act, it is true, is in terms confined to a review of decrees in the Chancery Court. But a liberal interpretation should be given to the law, to effectuate the legislative intention, and to reach mischiefs intended to be remedied by the law. This could only be done by extending the right to file a bill of review, in all cases of decrees of a court of equity, against the persons described in the act, whether such decrees are of the appellate, or of an inferior jurisdiction. But we cannot grant the injunction prayed for in this Case — although we think the Chancellor ought to have done so, on a proper application, and upon the execution and filing such a bond as the Chancellor should approve, and at such time as he should prescribe — because the petition of the party has been dismissed by the Chancellor, and if we allowed the injunction this singular anomaly would be presented: that an injunction would exist in a dismissed cause. A different case would have been presented had, the Chancellor entertained the petition, and refused the injunction. We could then, under the act of 1832, ch. 302, with propriety, on a proper case being' made, have awarded the injunction prayed for. We have now no power to act on the propriety of the order dismissing the' petition, and feel ourselves obliged to refuse the injunction.It is apparent that the Chancellor was restrained from action, from an apprehension of encroaching on the authority of the appellate court. But whether correct in- this or- not, we think the petitioners should' have an opportunity of filing a bill of review, and of having in the mean time a preventive remedy-against the absolute-loss of property, as to them, pending the controversy. But to entitle the party to an injunction pending the-rehearing, he ought to present a prima facie case;such a state’ of facts or of circumstances as, if true, would entitle him. to a reversal of the decree. No such facts are stated' in the petition to the- Chancellor, and- no proper case being, presented, independent of the difficulty- growing out of a dismissal of the petition by the Chancellor, we could not award-an injunction-as now prayed, &c.

As the Chancellor has dismissed the petition without prej.u- ■ dice, it is probable, upon knowing the views of the judges of this court, he might entertain a new petition, and grant an injunction, pending the application for a review. On the first impression, there would seem to be a difficulty, in filing a bill of review in chancery, in relation to a dbcree of the Court of Appeals. But had the decree reserved in terms, a right to non-residents to go into chancery, and review the decree within the period prescribed by law, there would have been no difficulty.. Now although the decree has not this provision, yet if our construction of the act of 1795 be correct, then the law attaches itself to the decree, and the petitioners would be entitled to a review, in the same manner as if the decree had-made a special provision-for such a review.-  