
    *Dickenson v. Davis and Others.
    November, 1830.
    (Absent Coalter, J.)
    Chancery Practice — Improper Parties Plaint (Us IblecL of Objection in Appellate Court.- If one person to whom alone tile right asserted in a bill in chancery appertains, and other persons who have no right, join in the bill, and the cause be proceeded in to a decree in the court of chancery, without any objection there to the joining of improper parties plaintiffs in the bill; upon appeals Irom the decree to this court, the objection will have only this effect here, that the court will consider the right as vested in the plaintiff entitled thereto, and affected by his acts or omission.
    Depositions — Irregularities — Objection in Appellate Court. — If irregularities occur in awarding a commission to take a deposition in chancery, and in taking the deposition and the deposition be read at the hearing in the court oi chancery without any exception taken there; upon appeal to this court, objections taken here to the deposition, for such ii regularities, cannot avail to exclude the evidence.
    Chancery Practice — Estoppel—Case at Bar. — A. applies to B. for a loan of money, upon the security of a mortgage of slaves then held by A., and 15. being-doubtful as to A.’s title to the slaves, and apprehensive that O. has some claim to them, applies to C. to know, whether he has such claim, explaining-his reason for the inquiry; upon which C. informs him he has no right to the slaves, being at the time apprised of all the facts, on which his right, if any he has, depends; B. lends the money, and takes the mortgage of the slaves: Head, that C. cannot be allowed, in equity, to assert the right he had disclaimed against, the mortg a.gee B.
    Appellate Practice — Appeal by Portion of Ce deieiui-aia is — Effect.—A. and 15. are co-defendants in a suit in chancery for recovery of a parcel of slaves and an account of their profits; B. claims the slaves under a mortgage thereof to him hy his co-defendant A., there is a decree for the slaves and profits, against both defendants; B. alone appeals from the decree: the court, holding that the plaintiffs had no right, considered the whole cause before it, uponB.’s appeal, and dismissed the bill as to A. as well as B.
    This was a suit originally brought in the county court of Bedford, in chancery, by the appellees, Smithson .Davis, Susan Davis, and Josiah Harrison, administrator of his deceased wife Rachel Davis, against Thomas Stewart and Tirzah his wife ad-ministratrix of her first husband Richard Davis deceased, and the appellant William Dickerson. Richard Davis died, intestate, in the year 1784, when slaves were real property; and the plaintiff, Smithson, claimed as his heir at law, and the other plaintiffs as his distributees, a slave named Buey, and her increase now numerous, three *of which were then in the possession of the defendant Dicken-son, who claimed the same under a mortgage and purchase from his co-defendant Thomas Stewart, and the rest were in the possession of Stewart, though they also were under mortgage to Dickenson. The object of the bill was, to recover of th.e defendant Dickenson, such of the slaves as he held in possession, and the profits thereof since they had come to his possession, and of the defendants Stewart and wife, such of the slaves as Stewart yet held, and the profits which he had taken and enjoyed.
    It was agreed by all parties, that the slave Buey in question, was originally a part of the estate of William Morrison, who died as early as the year 1761; and that he, by his will (according to the construction put upon it, acquiesced in and conformed with all parties concerned, though that construction seemed somewhat questionable) devised and bequeathed all his slaves and moveables to his wife for life, with a power to her, with the concurrence of his executors, to appoint the same to and among his children. And the plaintiffs alleged, that Mrs. Morrison, with the concurrence of the executors, made an appointment of the slave Buey, to the testator’s daughter Tirzah, then the wife of their father Richard Davis, and delivered her to him, and that he held the possession of her till his death, and that, therefore, she and her increase appertained to his estate. On the other hand, the defendants alleged, that though Mrs. Morrison, the tenant ¡for life, had made a verbal loan of the sleWe Buey to Davis during his life, and he had held possession of her under that loan, yet in fact, no appointment was made by Mrs. Morrison during Davis’s lifetime ; that after his death, he reclaimed this slave which she had lent him; that, in 1796, after her daughter Mrs. Davis had married her second husband Stewart, Mrs. Morrison and James Higginbotham, the surviving executor of her husband, united in a general deed of appointment of that testator’s slaves among his children, and thereby, for the first time, appointed the slave Buey and her increase to Mrs. Stewart, and delivered *the property to her husband: that thus, these slaves were the property of Stewart. But the defendant Dickenson also alleged, that Stewart having applied to him for a loan of money, and having offered him a mortgage of the slaves in question as a security, he determined to be assured of Stewart’s title before he would advance his money upon that security, and applied to the plaintiff Smithson Davis, to know whether he had any claim to the slaves (explaining to him his reason for the inquiry) and was told by Davis that he had none; upon which he lent his money to Stewart, and took the mortgage: and he insisted, that this assurance of Smithson Davis, that he had no claim to the slaves in question, upon the faith of which he had advanced his money upon a mortgage of the slaves, precluded the plaintiffs, in equity, from now asserting a claim fo the property against him.
    Upon the question of fact, when and how Mrs. Morrison and the executor of her husband had in truth made the appointment of the slave Buey to her daughter Tirzah, whether by verbal appointment and delivery of the property, during the lifetime of her first husband Davis, or not till after his death and after her marriage with her second husband Stewart, and then by the general deed of appointment of 1796 under which Stewart claimed, and which was exhibited in the cause, there was much parol evidence. But the principal evidence on which the plaintiffs relied, to prove that the appointment was made during Davis’s lifetime, and the slave delivered to him accordingly, was the deposition of James Higginbotham, the executor of William Morrison, who was required by the will of that testator, to concur with his widow in the appointment of the subject to and among his children. This deposition was taken before the defendants had put in their answers to the bill, under an order of the county court, made on the motion of the plaintiffs, giving them leave to take it, not de bene esse, but in chief: no affidavit appeared in the record to found the order on: it was subscribed by the deponent, but there was not, in the record, any certificate of the magistrates, that he was sworn to it: *and the deponent, though a man of unquestionable integrity and veracity, was eighty years old, and this deposition was written for him by the plaintiffs’ attorney, and the part of it most material for them, had been so written before the magistrates attended, and in the absence of the defendants’ agent, though he attended before it was completed, and cross examined the deponent. But the deposition was read at the hearing, in the court of chancery, without any exception.
    As to the alleged disclaimer of Smithson Davis of any right to the slaves in question, made to Dickenson before he lent his money to Stewart upon a mortgage of this property, the proof was as follows: a witness deposed, that Smithson Davis, in conversation with him, sometime after the commencement of this suit, said, that he had made some efforts to compromise the suit, as it was a hard case on both sides r that Dickenson had applied to him to know whether he had any claim to the slaves in dispute, before Dickenson’s advances to Stewart were considerable, and he informed Dickenson he understood he had no title to the slaves; and he then supposed he had none. And it appeared, that at the time of this disclaimer of right by Smithson Davis, he was about twenty-five years of age ; and there were circumstances in proof, from which it might fairly be inferred, that he was also, most probably, well apprised of all the facts upon which he after-wards set up his present claim.
    The cause, after having been many years pending in the county court, was removed by consent to the superiour court of chancery of Iyjmchburg. The chancellor was of op'inion, upon the proofs in the cause, that the slave Lucy had been duly appointed to the defendant Tirzah in the lifetime of her first husband Richard Davis, and delivered to him accordingly, and that, consequently, that slave and her increase appertained to Davis’s estate. And he made an interlocutory decree whereby he appointed commissioners to assign one third of the whole number of the slaves to Stewart and wife for her dower, to be held by Stewart for his wife’s life, with reversion to the ’“'plaintiffs: and as to the other two thirds, when ascertained by the assignment of Mrs. Stewart’s dower, he decreed that Dickenson should deliver such of them as he held in possession to the plaintiffs, and render an account of the profits thereof since they came to his possession; and that Stewart should deliver to the plaintiffs such of them as he held, and render an account of the profits of the subject accrued and received by him since his marriage with the widow and administra-trix of Davis.
    In pursuance of this decree, the dower slaves of Mrs. Stewart were assigned to Stewart and wife, and a report thereof was made to the court; and an account was taken, and reported, of the profits of the slaves held by Dickenson, with which, upon the principles of the decree, he was chargeable; the amount of which was 681 dollars; but there was no account taken of the profits with which Stewart was chargeable. Upon the reports coming in, the chancellor made a peremptory decree, that Stewart and Dickenson should forthwith deliver to the plaintiffs all the slaves in controversy (except the dower slaves) by them respectively held, and that Dickenson should pay the plaintiffs the 681 dollars, reported to be due from him for profits.
    Dickenson alone appealed from the decree.
    1.Wickham, for the appellant,
    objected, that if the appellees had right at all, their bill was framed upon a misconception of the right. If the slaves appertained to the estate of Richard Davis, they were, as the law stood at the time of his death, real estate, which descended to Smithson Davis, his eldest son and heir at law; and, though he was bound to give his sisters a distributive share of the value, he alone was entitled to the subject itself, and he alone could maintain a suit for it.
    Johnson, for the appellees,
    answered, that the sisters being entitled as distribu-tees of their father, to distributive shares of the value of his slaves, were interested in the recovery *of the slaves themselves, and, therefore, were proper parties to the suit. But, whether they were proper parties or not, the objection could not avail here: this court could correct the details of the decree, and adjudge the whole subject to the heir at law.
    2. Wickham said, that the deposition of James Higginbotham, on which the appel-lees mainly relied to prove their case, could not be considered by this court as evidence at all: that, as the law stood at the time the county court gave leave to-take it, the court, in the then state of the case, before answer filed, could only have given a commission to take the deposition de bene esse, and that upon proper affidavit, shewing grounds for awarding such a commission : that the deposition of this aged witness, whose memory must have been impaired, having been written for him beforehand, by the attorney of the plaintiffs, was rather the deposition of the attorney than of the witness: and that there being-no certificate that the witness was sworn to it, it was not, in truth, a deposition.
    Johnson answered, that the evidence had been read at the hearing, without exception. If it had been timely excepted to, the deposition might have been taken oyer again, or the objections removed by proof. Objections of this kind to evidence read in the court below; all objections, indeed, founded on irregularity in taking depositions in chancery, not taken there by exception, come too late in the appellate court, and if allowed here would have the worst effects of a surprise on the parties who adduced them.
    3. Wickham insisted, that supposing Hig-ginbotham’s deposition could be properly considered as evidence, yet viewing that deposition in connexion with the other proofs in the cause, not only had the appel-lees failed to prove their case, but it was disproved, and the contrary case established, by the evidence. This was an unmixed question of fact, which was discussed with much earnestness on both sides.
    4. Wickham contended, that the disclaimer of title to the subject, by Smithson Davis, who as the heir at law of *his father had the whole right to it, if it pertained to his father’s estate, made to Dickenson, before he made advances to Stewart, and trusted to a mortgage of this subject for his security; and made too, with full knowledge of Dicken-son’s motive for inquiring into Stewart’s title and Davis’s claim; precluded Davis in equity, from asserting against Dickenson, the claim or pretension now set up.
    Johnson said, that the only ground on which Davis’s disclaimer of right could preclude him from afterwards asserting his just claim, was that the disclaimer was fraudulent; that with full knowledge of his right, he disclaimed it, and thus betrayed Dickenson into an advance of money to his father-in-law upon a bad security. Now,, he said, the proof that Davis did disclaim his right, was Davis’s own admission that he had done so, accompanied with a declaration, in the same breath, that at the time of the disclaimer, he was ignorant of his right to the subject.
    
      
      Chancery Practice — Improper Parties Plaintiffs -- Objection for the First Time in Appellate Court — Effect. —To the point that objection cannot be made to the joining of improper parties plaintiffs for the first time in the appellate court, the principal case was cited with approval in Malone v. Hobbs, 1 Rob. 390.
      As to the effect of failure to make objection to the joining of improper parties plaintiffs in due time, see. citing the principal case, Tarr v. Ravenscroft, 12 Gratt. 651; Vaiden v. Stubblefield, 28 Gratt. 158.
    
    
      
      Depositions — Irregularities—Objection in Appellate Court. — To the point that an objection to a deposition for want of notice of the taking of it cannot be made for the first time in the appellate .court, the principal case was cited in Hill v. Bowyer, 18 Gratt. 380. See further, monographic note on “Depositions’’ appended to Field v. Brown, 24 Gratt. 74.
    
    
      
      Estoppel. — See generally, monographic note on “Estoppel” appended to Bower v. McCormick, 23 Gratt. 310.
    
    
      
      Appellate Practice — Appeal by Portion of Co-defend ants — Effect.—See on this subject, foot-note to Tate v. Liggat, 2 Leigh 84 and other foot-notes in this series of reports there cited.
      The principal case was cited with approval on this point in Crawford v. Patterson, 11 Gratt. 375: Morgan v. Ohio River R. Co. 89 W. Va. 25, 19 S. E. Rep. 591.
    
   CARR, J.

It is objected by the appellant’s counsel, that the plaintiffs were improperly joined in the bill; for, supposing the slaves to have been the property of Richard Davis, Smithson, his son and heir, would, according to the law of that day have succeeded to them alone; the other children having nothing more than a claim on him for their distributive portions of the appraised value. That this is a correct statement of the law, is certain ; and I will not say what might have been 'the effect of this objection, if properly pleaded: but in' the present situation and stage of the cause, I think it can have no other effect than this, that the court will consider the right, if there be any, as vested in Smithson, and bound by his acts or omissions. It was also objected that the deposition of James Higginbotham could not be read, there being no proper order.of court for taking it, and no certificate of magistrates that it was sworn to, and it being altogether written by the attorney for the plaintiffs, before the arrival of the justices, or any person representing the defendants. If these objections had been taken in the *court below, by exception, they would unquestionably have been fatal, unless the plaintiffs could have removed them by evidence. But as it is, I do not think the first two can be looked into here. The facts, that the deposition was written by the plaintiffs’ attorney, and the parts of it most material for his clients, before the arrival of the magistrates, or of the opposite parties or their agent, do appear on the record; and though it would be too harsh, at this late stage of the controversy, when the witness is probably dead, to exclude the deposition, yet, I think, these circumstances cannot but materially affect its credit. And taking this deposition with its credit' thus impaired, and comparing it with the other proofs in the cause, the clear deduction from the whole is, that if Richard Davis was (and it appears he was) in possession of this slave during his lifetime, he held that possession under a loan from his inother-in-law, Mrs. Morrison; and that the slave Buey was for the first time appointed to her daughter Tirzah, by the general deed appointing fhe slaves of the testator William Morrison to his children, executed in pursuance of his will, by Mrs. Morrison and his surviving executor, in 1796, when the appointee Tirzah was the wife of Stewart, to whom accordinglj' the property was delivered; and, therefore, the slave Lucy and her increase do not pertain to Davis’s estate, but belonged to Stewart. [Here the judge entered into a critical examination of the evidence.] And if this question of fact were more doubtful than J think it is, there is yet a consideration, which would repel the claim of the appellee Smithson Davis (to whom alone, if the property belonged to his father’s estate, the right descended) so far as he seeks to disturb the mortgage to Dickenson. It is in proof, that when Dick-enson was solicited to make advances to Stewart, and take a mortgage of these slaves for his security, he took the precaution, before he would venture, to apply to Smithson Davis, and to ask him whether he had any claim to the property, telling him his reason for making the inquiry; and Davis answered, that he understood he had none. He stood *by, then, and saw Dickenson’s advances made to Stewart, and the mortgage taken ; and then brought suit. He said, indeed, in relating the fact of this disclaimer, that at the time he so informed Dickenson, he supposed he had no title. But he did not pretend that he was then ignorant of the facts upon which the claim he now sets up rested; and there are circumstances in proof [the judge stated and examined them] which evince, that he was, most probably, fully apprised of them. He could not be allowed to disturb a security which he himr self induced Dickenson to accept and trust to: his rights, if he had any, would be postponed to those of Dickenson: this is a settled point; Stewart v. Luddington, 1 Rand. 407, and the cases there cited, and Lang v. Lee, 3 Id. 410. This, however, is a secondary consideration : the ground on which this court decides the cause, is, that the slaves in question were never the property of Davis, the father, and consequently, the appellees have no title.

The other judges concurred in this opinion, and directed a decree to be entered, reversing the chancellor’s decree, and dismissing the bill.

Johnson asked, whether the court intended to reverse, or could regularly reverse so much of the decree as affected Stewart and wife, who had not appealed ‘ from it? He referred to Tate v. Liggat &c., ante, 84, 108.

Wickham said, the decree against Stewart and wife affected the rights of the appellant Dickenson : for he was the mortgagee of the slaves held by Stewart, as well as mortgagee and vendee of those held by himself.

BROOKE, P.

The court considers the whole cause before it, upon Dickenson’s appeal.  