
    Anne Hardy and Thomas Talburtt vs. James C. Summers and wife.
    
    December 1838.
    Under the act to direct descents, the filing the petition and the appointment, of the commissioners are ex parte; and the proceedings of th!e county court in affirming, or rejecting, their return, are summary, and neither law or usage requires, that the proofs exhibited by the parties should be reduced to writing, or introduced into the record of the proceedings before it.
    And where a bill was filed for an injunction, to restrain parties from enforcing a partition made under that act, upon the ground that the parties entitled, had previously divided the property themselves, and stating other circumstances showing the plaintiff’s title to relief, it was held, that such partition was no bar to the relief prayed.
    A partition made by the county court is a nullity, if a division had been before made by the parties themselves, — the act to direct descents only giving power to the courts to divide, when the parties entitled are incompetent, or cannot agree upon the division thereof.
    
      Under what circumstances the contract of a feme covert is binding.
    The fact of the possession of a party, whoso rights are supposed to be involved in a purchase, is sufficient to put the purchaser upon the enquiry, and failing to make such enquiry, lie is in equity visited with all the consequences of notice.
    Upon the motion to dissolve an injunction, the answer is to be regarded, only, so far as it is responsive to the bill.
    Appeal from the Court of Chancery.
    The bill in this cause was filed on the 30th December 183?, by James C. Summers and Mary his wife. Jt alleged that, about the 4th February 1819, a certain Jonathan Hardey departed this life, intestate, leaving the said Mary and Anne Hardey, his only daughters and heirs at law; that he died seized of personal and real estate in Prince George’s county, which he had frequently declared he wrould dispose of by last will and testament in manner following, that is to say; that to the said Anne Hardey and her heirs, he intended to devise all that parcel of land, called and known by the name of the Wedge, another tract adjoining it, and one half of his mill and mill seat, &c.; that to the said Mary and her heirs he intended to devise all that tract called the South part of the White Marsh, one half of the mill and mill seat, &c.; that to Walter Green-bury Hardey, son of the said Anne, he the said Jonathan Hardey intended to bequeath certain personal property enumerated in the bill. That to Jonathan A. Summers, he intended to bequeath certain other enumerated property; that he the said Jonathan Hardey prepared an instrument, in the nature of a last will and testament, conforming to the views herein before mentioned, but suddenly departed this life without executing the same; that soon after the death of the said Jonathan, the complainants and Anne Hardey had interviews, for the purpose of agreeing on the manner in which the property of the said Jonathan should be partitioned and divided between them; and thereupon it was agreed by and between them, that in as much as the disposition the said Jonathan their father contemplated making of the said property by will, was a very reasonable, natural, and equitable disposition of the same, that it should be partitioned accordingly; and that provision should be made for the payment of his debts, by allowing the said James C. and Mary his wife to take certain articles of personal property left by him of inconsiderable value, and in consideration thereof to pay all the said Jonathan’s debts; that the property of the deceased on the 22nd June 1819, was accordingly divided, and the said Anne and Mari/ signed a bond binding them respectively to abide by such partition as will appear by the bond exhibited with the bill; that the said James C. fairly and fully assented to the execution of said bond by his wife Mary, and has always been, and is still willing to abide by the terms thereof; that the said James C. accordingly discharged all the debts of the said Jonathan; that the several parties took possession of the property of said Jonathan, under such division, and used the same; that the said James C. has made many improvements on his real estate, thus acquired, and has purchased adjaceiit property to make the same more valuable; that the said Anne Hardey has greatly injured her portion of the said estate, and that the said Anne having sold and conveyed to one Thomas Talburtt her right and interest in the real estate of her said father, they now pretend that, the said agreement is not binding in law, because the same was not reduced to writing, nor signed by the parties to be charged thereby, or some person or persons thereto lawfully authorised; and that the said bond which was executed in pursuance of the said ■ agreement is of no force in law, because it was not signed by the said James C. Summers. The complainants insist, that said agreement is binding, and that the said Thomas Talburtt purchased with full knowledge thereof; that the said Thomas, immediately after he had purchased from the said Anne, took possession of the part allotted to and held by her as aforesaid, and asked complainants to convey the same to him, which they agreed to do on his having a deed for the purpose prepared and tendered to them; yet the said Thomas did on the 17th November 1886, apply by petition to Prince George’s county court for a commission to divide or value the real estate of the said Jonathan, which being granted to him the said Thomas and issued, it was in such manner thereon proceeded by the commissioners therein named, that they partitioned and divided the said real estate, by allotting to the said Thomas, that part of the same which had been taken and held by the complainants as aforesaid, and in pursuance of the' said agreement and bond, with the exception of about twelve acres, and allotting those twelve acres, and that part of the said real estate, which was formally taken and held by the said Anne as aforesaid, to the complainants. That the said commissioners having reported the same, their proceedings were ratified and confirmed, notwithstanding the complainants objected thereto, on the ground of a former partition and division made as aforesaid, and complainants are now in danger of being ousted and turned out of possession of their said land and premises, which the said Thomas threatens. Prayer for general relief and an injunction against Anne Hardey and Thomas Talburtt their agents, and to restrain them from interfering with, or entering upon, the said real estate held by the complainants, and for an order of publication -against the said Anne and Thomas as nonresidents.
    The bond referred to and filed with the bill was executed by Anne Hardy and Mary Summers, and was as follows:
    Know all men, &c., that wre, Ann Hardey and Mary Summers, are held and firmly bound one to the other, their heirs and assigns, in the penal sum of, See., to be paid by the party or parties failing, to the party or parties complying, to the which payment well and truly, &c., we and each of us bind ourselves, &c.; sealed 22nd June 1819. The condition of the above obligation is such, that if the above bound Ann Hardy and Mary Summers do abide by and stand to the division of the property of Jonathan Hardy deceased, of, Sec., as we do agree to divide the said property as follows: — All that part or parcel of land, and then proceeded to enumerate the property partitioned to the said allegors respectively; and then concluded as follows: “All the remainder of the said deceased’s estate to Mary Summers, after her paying all the just debts of the said deceased, and valued at there quest of the parties aforesaid, by John Soper and Richard Marshall, then,” See.
    
    On the 30th December 1837, the Chancellor (Bland) granted an injunction and order of publication.
    
      Thomas Talburtt answered the bill, declaring his ignorance of how the deceased Jonathan intended to divide his estate, and his disbelief of the existence of an instrument in the nature of a will; also declaring his ignorance of any interviews between the said Anne and complainants in which the terms of a division of their father’s estate were adopted. His answer admitted his knowledge of the bond filed with the bill, but that he was informed by the said Anne, that the said James C. Summers told her, that unless she entered into said agreement she would receive no part of sard estate &c.; that the said agreement was void, the said James C. not being a party to it, and being made by a feme covert. The alleged improvements were next denied, and the depreciation of Summers’ part insisted upon, and the manner of its injury set forth at large. The damage to Ann’s portion of the estate was also denied. He also denied that he knew any thing of the division of the property at the period of his purchase; that he had .however then seen the agreement filed with the bill. The proceedings mentioned in the bill before Prince George’s county court, to divide the land, were also admitted as stated, but the proposal to execute a deed to complainants on its being tendered was denied, &c.
    The answer of Anne Hardy admitted that her father had intended to give his property to her and her sister, and had prepared a sketch of his intended will. She further admitted that, ignorant of her rights she consented to a division; that she executed the bond filed with the bill being ignorant of its contents, not having read the same, neither did any one read or communicate the subject of the same to her; thát she executed the same in the presence of complainants, and that the said James G. declared, that if she did not execute the same, she would get no portion of her father’s estate; that considering herself at his mercy, he then having every part of the said estate in his hands, she consented to execute the bond: That the said Mary did not execute the same voluntarily, but was forced to sign the same, as she believes, by the cruel treatment of her husband. This answer then proceeded to allege various matters of defence — admitted her sale to Talburtt, and the proceedings before Prince George’s County Court.
    
    At July term 1838, there was a motion to dissolve the injunction on the bill and answers, which being overruled, the present appeal was brought by the defendants.
    The cause was argued before Archer, Dorsey, Chambers, and Spence, Judges.
    T. G. Pratt and T. S. Alexander for the appellants contended that the injunction ought to be dissolved.
    1st. Because the agreement set out in the bill was not binding on the appellant Anne Hardy, 'nor fit to be executed by a court of equity.
    2nd. Because the appellant Talburtt is shown to be a purchaser for valuable consideration and without notice, and consequently is not to be affected by any such agreement.
    3rd. Because his failure to execute said agreement upon the offer of the appellant Talburtt, deprives him of all equity (if any he ever had) at this time to require its specific execution.
    4th. Because the decree for partition of Prince George’s County Court is a bar to the relief asked upon the agreement, the validity of that agreement having been properly put in issue in the partition cause.
    The counsel cited 7 Mass. 19, 1 Mad. C. R. 14. 2 Chitt¡ Eq. Dig. 815. Serg. on Vend. 278, 279, 280. 1786, ch. 45, sec. 8.
    J. Johnson for the appellees insisted,
    that the bond was valid, the husband of the feme covert obligor having assented to its execution. Bosley vs. Me Kirn, 7 Harr. §' John. 501. 1 Cox’s Cases, 172. 1 Thos. Coke, 153. Barnfather vs. Jordan and another, 2 Doug. 452, Baxter vs. Smith, 6 Barney, 457, and that equity would therefore protect and enforce that; contract.
   Dorsey, Judge,

delivered the opinion of the court.

It is insisted that, the grounds for equitable relief, as set forth in the bill of complaint, were, heretofore, and finally adjudicated by Prince George’s county court in the proceedings therein, under the act of descents, for the division.of the real estate of Jonathan Hardy, between Talburtt, the grantee of Anne Hardy, and Mary Summers and her husband; and that such adjudication is a bar to the relief now prayed'for.

The case set forth in the complainant’s bill is one, in which a court of equity only, is competent to grant the appropriate relief.!

If the facts, stated in the bill, be true, the relief asked for, could not be denied. Whether these facts be true or false, it is the province of a Court of Chancery to decide upon proofs regularly before it, in a cause conducted according to the forms of equity proceedings.

The complainants,, before their equitable claims could be definitely decided, had a right to a discovery on oath by the defendants,, and to have- all the proofs on which those claims depended, taken in due form and submitted to the decision of a court of equity, and, if aggrieved by its decision, to have it reviewed in the highest appellate tribunal of the State, upon a full record of all the proofs and proceedings in the cause. Of these rights Prince George’s county court could not deprive them, by the summary exercise of the powers specially delegated to it under the act of descents. To permit it to do so, would be an unheard of innovation on the long established forms of litigation in equity; would deprive the complainants of their right to purge the consciences of the defendants, or to bring their entire case, upon its merits, for trial before an appellate tribunal, or to have any adjudication thereon by the Court of Appeals. Under the act of descents, the filing the petition, and appointment of the commissioners, is an ex parte proceeding, and the proceedings of the county court in determining on the confirmation or rejection of the return of the commissioners, are summary in their nature, and no law requires, nor is it customary for the court to direct, that the proofs exhibited by the parties, should be reduced to writing, or in any way introduced into the record of the proceedings before it. An appeal under such circumstances could not avail the appellant, even if permitted, in. the court of last resort.

But there is another reason why the Chancery court should not be thus abruptly arrested in the prosecution of this suit on the ground of a prior adjudication in Prince George’s county court; and that is, that if the allegations in the bill be true, the alleged prior adjudication is a nullity, being a, proceeding co-ram non judice. The act of descents only giving power to the county courts to divide the real estate of a deceased person, where the parties entitled to the deceased’s estate cannot agree upon the division thereof. The principle of res adjuicata, therefore, on the present appeal, interposes no obstacle to the continuance of the injunction issued in this cause.

The next in its proper order, of the reasons assigned for the reversal of the Chancellor’s orders continuing the injunction is, because the agreement set out in the bill being made with Mary Summers, a married woman, is not binding upon Anne Hardy. The agreement, as charged in the bill and not denied in the answer, was made in the presence of the husband and assented to by him, and according to the statements in the bill, as admitted or not denied in the answers, the agreement was consummated by an actual division of the real estate of the deceased between the sisters, each taking possession, and holding according to such division, for at least fourteen years. The complainants still hold under such division the portion signed them; Anne held her share till she conveyed to Talburtt, and after such conveyance he took possession of Anne’s part, and offered to execute conveyances between himself and the complainants, conformably to the partition which had been made. We know of no principle, either of law or equity, under the circumstances, in which it was made, that would invalidate the agreement, simply on the ground of the coverture of one of the parties. As authorities for a contrary doctrine, see Baxter vs. Smith, 6 Binney 427. Barnsfather and another, Executor of Moffat, against Jordan and another, 2 Douglas 452. Thos. Co. Tit. 153, and Bowyer vs. Peake, 2 Freeman's Rep. 215. To refuse relief in the case before us on this ground only, would be against all equity and conscience.

The next reason, assigned for the reversal of the Chancellor’s order is, that the defendant Talburtt is a bona fide purchaser without notice of the agreement entered into by Anne and her sister, or the proceedings under it, and as such, must be protected in a court of equity, against such agreement and proceedings. But this defence if properly pleaded, could not avail the defendant Talburtt. The actual possession of the complainants, according to the agreement and division under it, is a sufficient intimation of their rights, to have put Talburtt upon an inquiry into their nature, and failing to make it, he is in equity vested with all the consequences of a knowledge of their title.

The only remaining question to be considered is, has the equity of the bill been sworn away by the statements in the answers. We are clearly of opinion that it has not; most of the material facts constituting the complainants’ equity, have been admitted, or not denied by the answers, As far as the statements contained in the answers are responsive to the charges in the bill, the complainants’ equity remains wholly unimpaired. The matters in avoidance, relied on in the answers, which, when put in issue, if proved, might strip the complainants of all claim to relief, not being responsive to the bill, cannot in this stage of the cause be relied on by the defendant, as grounds for the dissolution of the injunction.

The orders of the Chancellor continuing the injunction is affirmed with costs,

orders affirmed.  