
    Blair v. Owles.
    Monday. March 12, 1810.
    1. Vendor and Vendee — Notice of Lien — Effect.—Notice of a lien or encumbrance on property binds the purchaser, if received by him at any time before the execution of the conveyance.
    2. Same — Same—Liability of Vendee. — A purchaser, vWLth notice of an annual encumbrance, having' prevented the lawful claimant from enjoying the benefit thereof, is personally liable, in equity, to the full value.
    3. Same — Same—Same.—In such case, the purchaser, or the property, may be made liable, in the first instance, at the election of the plaintiff.
    
      4. Same — Same—Sait by Claimant of Lien — Parties.— In a suit in equity by the claimant of an encumbrance against a vendee having notice, a person who joined the vendor iu the deed, for the purpose of relinquishing a collateral claim, need not be a party.
    
      .5. Same — Same—Witness Thereof Purchasing Agent. —A purchasing agent is a competent witness to prove that his principal hah notice of an encumbrance, notwithstanding such agent joined in a deed conveying the property to the principal free from the claim of any person whatsoever; for the vendor himself may he purchasing agent for the vendee hy his appointment; and the vendee, hy constituting him his agent, makes him a competent witness to prove the notice.
    Nancy Owle and Betsy Owle, infants, by Daniel Vandewall, their guardian and next friend, brought suit in the Superior Court of Chancery for the Richmond District against William Price, administrator with the will annexed of Charles Price, deceased, Archibald Blair and others; stating in their bill, that Charles Price, their father, made his last will and testament, dated the 18th of June, 1797, and recorded the 3d o± July ensuing, in which he expressed his desire that “twenty pounds per year should be raised out of the schooner Virginia, and paid for their support so long as the said schooner should last, and that they should have the privilege of get-39 ting firewood off of the land *that he bought of Barret Price’s estate, for ten years to come;” that, soon after the death of the testator, William Price, administrator with the will annexed, sold his interest in the schooner, subject to the encumbrance upon, it, to Richard Thompson; who, thereupon, paid the twenty pounds per annum for four years, but afterwards ^having sold the schooner to James Brown) refused to make any farther payments; that the executors of Barret Price (as the complainants believed) executed a deed for the said land to Charles Price, in his life-time, but the deed was not recorded; that the said administrator possessed himself of the said deed, and then sold the said land to Archibald Blair, who knew of the said last will and testament; that, as the testator had four sons and daughters, the said William (as one of them) owned but a fourth part of the said land; that it was agreed on between the said William Price and the said Archibald Blair, that the deed which had been executed by the executors of Barret Price to the said Charles Price, should be returned to the said executors, and that they should execute a new deed to the said Blair; which the complainants believed was done to exclude them from the benefit of cutting firewood from the said land, of which the said Archibald Blair, after the execution of the last-mentioned deed, deprived them. They therefore prayed relief in equity, against the said Archibald Blair personally, or otherwise, as the Court should think proper.
    As to all the defendants, except Archibald Blair, the suit remains undecided in the Court of Chancery. He, by his answer, admitted that he requestecf a friend (whose name he did not mention) to bid for the land (being fifty acres, near Scuffletown) in his behalf; and that it was struck out to him, as the last bidder, for sixty pounds; but averred “that, at the time of purchase, he knew of no encumbrance that the said land was under whatsoever.” He farther stated “that, some time after he had purchased, Daniel Vandewall mentioned to him that the said land was under 40 *an encumbrance, by the will of the late Charles Price, to furnish firewood for a certain number of years to certain persons; that he was surprised at the information, having no knowledge that the said Charles Price had ever any claim to the said land; but, upon finding there was such a will, he applied to William Price, executor of Barret Price, (who sold the land,) for an explanation concerning the said will; when the said William Price informed him that the said Charles Price had no right to make such a will; that there had been a kind of a bargain with the said Charles Price for the land, but that the said Charles had never complied with the terms thereof; and the deed passed to him was incomplete, having only two witnesses, and had never been recorded; but that, as farther security and satisfaction to the respondent, William Price, executor, and one of the children of the said Charles Price would join in the conveyance to him of the said fifty acres; which he accordingly did. The respondent denied that he had any other knowledge of the plaintiffs’ equity than above stated, and therefore pleaded that he was an innocent purchaser without notice, for a valuable consideration actually paid;” insisting, “that, if the plaintiffs were entitled to any compensation, they ought to recover it of those who sold, and not of him who had thus innocently acquired the land.”
    Annexed to this answer, and prayed to be taken as part thereof, was the deed mentioned therein from William Price, the elder, executor of Barret Price, and William Price, the younger, “executor,” and one of the children of Charles Price, dated the 12th of April, 1798; in which they, 11 for the consideration of sixty pounds, one half to them in hand paid, and the other being secured to be paid,” (without specifying by whom the public sale had been made,) jointly conveyed the said land to Archibald Blair, “free from the claims of all persons whatsoever.”
    The answer of William Price, jun. (among other things), alleged, “that he knew 41 nothing of the execution of the *deed supposed to have been made by the executor of Barret Price, and required that the plaintiffs should produce proof of all matters appertaining thereto; that the complainants were not born in wedlock; and that the land sold to Archibald Blair was sold after public notice given by the crier of the encumbrance of the firewood mentioned in the bill.”
    The deposition of William Price, the elder, (executor of Barret Price,) stated, “that he was present when the land was offered for sale by the administrator of Charles Price, and heard the crier proclaim that there was an encumbrance of ten years’ firewood on the said land; that he became the purchaser thereof in behalf of Archibald Blair; that, on the day the same was to be sold, he called on Mr. Blair, agreeable to his request, and informed him the said land was to be sold under the encumbrance before mentioned; that Mr. Blair informed him it was not in his power to attend the sale, but signified his desire to become the purchaser, and requested him to purchase on his behalf, limiting him as to the price; that he accordingly attended the sale, and, the land being struck off within the price limited, became the purchaser, for Mr. Blair, as before stated.”
    On the 21st of September, 1807, the Judge of the Superior Court of Chancery directed an issue to be tried at the bar of the said Court, on the 10th day of the then next term, “to ascertain the value of firewood which the plaintiffs were at liberty to get upon the land in the bill mentioned, for ten years from the death of the testator.” A Jury was accordingly empanelled, and returned a verdict, “that the said firewood was worth 22 dollars annually,” amounting in all to 220 dollars for ten years; and the Court decreed, that the said Archibald Blair was liable for the value, as fixed by the Jury, for 9' years and 4 months, and that he should pay to the plaintiffs 205 dollars and 32 cents, the value of the said firewood, for the time last mentioned, according to the verdict. From that 42 decree, * Archibald Blair appealed, and, on the petition of the appellees addressed to this Court, the appeal was taken up out of its turn on the docket.
    Williams, for the appellant, contended,
    1. That Blair had no notice at the time of the purchase. His answer, positively denying such notice, is contradicted by one deposition only, which (being that of one .of the bargainors) ought not to have been admitted as evidence.
    2. The notice given him by Vandewall, coming from a stranger to the contract, ought not to affect him.  When he made inquiry into the subject, William Price, sen. who had sold him the land, denied the right of Charles Pric^ to devise or encumber it; but, for his satisfaction, procured William Price, jun. the administrator, to join in the deed, in which they convey the land “free from the claim of all persons whatsoever.” If, then, he were considered as a purchaser with notice, the two Prices were bound to make good the title to him. Therefore,
    3. William Price, sen. executor of Barret Price, ought to have been a party to the suit, and he and William Price, jun. administrator of Charles Price, should have been decreed to pay the money, to prevent circuity of action and future litigation; and according to the rule of equity that the Court should make him pay that ought to pay.  So, in a bill against a devisee, you must make the heir a party, upon the same principle,  If, however, I should be mistaken in this,
    4. The decree should not have been against Blair personally, but against the land in his hands; for, perhaps, the land may not be worth the money. A purchaser with notice is not personally bound, but the land is bound; and on that principle the decree must be reversed.
    Warden, contra.
    The will of Charles Price, recorded eight months before the purchase, was sufficient notice to all the world of the encumbrance, and espe43 cially to Blair, *who bought of William Price, the administrator with the will annexed, and could not make out his title without referring to the will; for, where a purchaser cannot make out his title but by a deed which leads him to another important fact, he must be considered conusant of it; for it is crassa negligentia that he sought not after it.  The deposition of William Price, sen. was admissible, because, although he joined in the deed, the land was not in fact purchased of him, but of the administrator of Charles Price, (as the same deposition proves,) and he was Blair’s agent in bidding for-it. A circumstance in the answer shews this: Blair says, that he purchased by a friend, taking care not to mention his name; now William Price, sen. comes forward, and says he was that friend.
    Daniel Vandewall was not a stranger, but guardian of the claimants : the notice from him was therefore good; for, though after the purchase, it was before the deed was made, and that is enough.
    Nicholas, on the same side.
    The answer does not pc sitively deny notice; but rather admits it by the evasive mode of denial, containing a negative pregnant. The notice to William Price, sen. by the crier at the sale, being to Blair’s agent, was sufficient to bind him.
    
    As to the question of parties; I admit that all parties necessary to the decision of the question should be before the Court, but not persons eventually or remotely interested, or against whom the defendant can only have a claim founded on his having been compelled to pay the money. If any person set up a claim to this land, such person ought to be a party; but the circumstance that the defendant took a writing of indemnification from William Price,’sen. does not render it necessary to make him a party.
    With respect to the object of the decree; Blair, being a purchaser with notice, ought to be considered as personally liable, at the election of the plaintiff; and, in case of his inability, (which is not pretended,) the land should be liable. 44 *The decree is not indeed in this form; but, being substantially correct, ought to be affirmed.
    Saturday, March 17.
    
      
      See monographic note on “Witnesses” appended to Claiborne v. Parrish, 2 Wash. 146.
    
    
      
       Sugden, 490.
    
    
      
       See 1 Vern. 110; 2 Atk. 51.
    
    
      
       Mitf. 144. 220.
    
    
      
       1 Willes, 51, Gawler v. Wade.
    
    
      
       1 Powell on Mort. 462, 465; 2 Chan. Cas. 246; 1 Vern. 319, Dunch v. Kent.
    
    
      
       Sugden, 492, citing a. number of authorities.
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

From the state of facts contained in the answer of the defendant, Mr. Blair, in the original suit, I think he was clearly a purchaser with full notice of the defendant’s claim to the right of firewood from the land which he purchased. This notice he had before a conveyance was made to him; and, from the conveyance itself, it appears that he paid only half the purchase-money at that time, giving security for the payment of the other half at a future day. This brings the case fully within the authorities cited in 2 Fonb. b. 2, c. 6, s, 2, n. (i), s. 3, n. (tn), b. 3, c. 3, s. 1, n. (b).

I am therefore of opinion that the decree should be affirmed.

JUDGE ROANE.

I am of opinion that the decree should be affirmed. It was objected, that the executor of Barret Price should have been a party; but, from facts disclosed in the answer of Blair himself, as well as from other testimony, it appears clearly that he was a purchaser with notice of this encumbrance. I should have had doubts whether the lien should not have been confined to the land, had it not appeared that Blair refused to give the plaintiffs permission to enjoy the benefit of the firewood.

JUDGE FLEMING.

There appears to have been sufficient notice, without recurring to the answer of Blair. It is the unanimous opinion of the Court, that the decree be affirmed.  