
    Dorsey vs. Dorsey's Heirs and Ex'rs. et al.
    
    Appeal from a decree of the Court of Chancery.- A bií! was filed on the 21st of December 1800, by Edward It. Dorsey the appellant, against the heirs and executors of Edward Dorsey, the executors of Caleb Dorsey, and SamUel tiodman. It statdd, that Caleb Dorsey, possessed of a large iaitded and personal estate, by his will dated the 14th of March 1772, gave the following legacies to his .daughters, viz. Rebecca Ridgely ¿C1000 sterling, Mary Pue £1500 sterling, Mil call Dorsey £2000 sterling, Eleanor Dorsey £2000 sterling, Peggy h. Dorsey £2000 sterling, Priscilla Dorsey £1000 sterling, and to his grand daughter Elisa G. Dorsey £500 sterling, amounting in the whole to £10,000 sterling; and after several specific legacies, he gave the remainder of his personal property to his -sons Samuel and Edward. His real estate he, devised in tail, viz. to his son Samvel the "following lands: Chew’s Resolution Manor Resurveyetl, The Gore, Cheiu’s Vineyard, one undivided moiety of Taylor’s Forest, and all the [ remaining unsold part of The Mill Frog, Timber Ridge., ’ Caleb’s Delight Enlarged, all his lots at Elk Ridge Land’ing, and all his part of the furnace and woiks at Curtis’s creek, together with the land purchased anti taken up for the use of the said furnace and works. To his son Edward, also in tail, Caleb’s Pasture, The Valley of Owings, Little-worth, Caleb’s and Edward’s Friendship, and one undivided ¡moiety of Taylors Forest, and all his part of the Elk Ridge, furnace, in aid of the personal estate, and todischarge the legacies, and to leave personal property sufficient to carry on the Elk-Ridge Furnace and Dorsey's Forge, he directed that Dorsey’ Delight Enlarged, Timber Ridge, Mill Frog, and also all his part of the furnace and works at Curtis’s creek, together with all the other lands taken up and purchased for the use of the same, should be sold. The lands here mentioned are part of the lands devised to Samuel. Subsequent to the date of the will, and prior to the codicil, the testator purchased from Alexander Lawson bis interest in the furnace and works at Curtis’s creek; and thereby contracted a considerable debt, of which .#3000 sterling were due at the testator’s death, with interest from the 20th of May 1772. On the 21st May 1772, by a codicil, be devised the property purchased from Lawson to bis sens Samuel and Edward, equally, tire money due or» the purchase to be paid by them equally. He also gave, by the codicil, the following legacies: To his daughters Rebecca Ridge/y, Mary Rue, Milcah Dorsey, Eleanor Dorsey, Peggy IL. Dorsey, and Priscilla Dorsey, each A600 sterling. The legacies to bear interest, and to be paid equally by his sons in three years. For the payment of the codicil legacies, he expressly makes the whole property devised to his sons liable, and explicitly declares, that the will legacies shall not be affected, but are to remain in the same situation as if the codicil had not been made. The amount of the will legacies, .-£10,000 sterling, or
    
      
      [ ’ On a bill filed ill chancery by K HI), to vucatb 4 sale made of his land* when he was a minor, by E Z>, a ti ustee appointed under a decree of the court of ¡chancery, which were, it was alleged. purchased by S (r, fi>r tin* use of Ü I), the trustee, and to annul tin* deeds? executed if* consequence of that sale — HeM% that there being sufficient evidence to prove that S G did purchase the lands in question for "E D, the trustee; and on the established principle, that a trustee can neveí be a purch&'ei* at his own sale, the deeds madem con«equcnce thereof he vacated, there beingno evidence that IS H D, the only person inter csted ever assontt d to the purchase; and that li H 1) pay to E D the amount paid hy him for the purchase of the lands, &c-
    The testimony of a witness as to the contents of a letter, who had never seen the person write who wrote the letter, and had no knowledge of his hand writing is inadmissible.
    ... The declarations of a man respecting his title to lands made before he parts with Ins estate therein* are evidence against him, and all claiming under him.
    Where it seemed to be unnecessary that the legatees should be mpde parlies to a bill filed against the heirs and executors of the testator.
    It seems not to ha necessary on a bill filed to set aside a sale made by a trustee, to make the*represen® tacives of the person* who purchased al such sale lor the benefit of the trustee, parties to the suit
    
      AT 6,666 IS i
    
    Amount of the codicil legacies
    .£3,600 sterling, or 6,000 0 0
    Currency ¿622,666 13 4
    The amount of the inventory returned on the 27th of July 1779, ATO,479 10 0
    List of sperate debts returned the 23d of April, 1795, 60S 12 0
    Old current money add 2,619 0 2
    --— -- — — 13,708 0 %
    
    X4th of November 1789, credits allowed; 3,153 16 S|
    
      2Si of April 1735, 786 0 If
    --_- 1.939 16 f¡
    
    11,768 S 9
    Deficient for the legacies, ;£10,898 8 7
    
    On the 16th of October 1773. on the application of Fidgety and wife, Pve and wife, Qoodwin and wife, Buchanan and wife, Samuel and Eleanor Dorsey, to the legislature, a law passed, authorising the persons above named, or the sprvivors, to sell the whole of the Curtis's Creek JVorks, pnd that one sixth of the money arising from the sale should be paid to the guardian of Edward Dorsey, (then a minor,] to be applied as the personal estate, and the residue to the discharge of the will legacies. The lands were sold, inplnding those purchased from Lawson; and the money ap.~ plied to pay the legacies, leaving Lawson’s debt due. Lawson brought a suit against the executors of Caleb Dov,sey, and at August term 1783, obtained judgment. In 1774 Samuel Dorsey died, leaving the complainant his jieir in tail, aged two years, Edward Dorsey, his uncle8 was appointed his guardian. On the 9th of June 1 "84, the executors of Caleb Dorsey filed a bill against the complainant, to obtain <4 decree for the sale of more real property to pay Lawson's debt, for the one half whereof if was alleged the complainant was liable. On the 30th of October, 3784, Edward Dorsey, his guardian, appeared and answered. On t|ie 4th of November 1784, a decree was passed for the sale of Taylgr's Forest, &c. and Edward Dorsey, th? guardian, appointed the trustee to sell. On the 7th ef November' 1784, the trustee’s bond was filed. The time, when the sales were made does not precisely appear, but they must have been made about the 20th of December 1784? for six weeks notice was directed, and Edward, (the punor,) is charged with interest on Lawson's debt to that date. By the decree the trustee is directed, before the mopey arising froni the sales was distributed, to obtain a bond from the complainants in that case, “to indemnify the defendant from a]I charges and demands on account of Lawson's judgment, and fropi all claims and demands, which jthe defendant hath been, or is or may be made chargeable by the codicil of C. Dorsey's will, or for or by any other yrays or means whatever” 'Ihe bond of indemnity wa§ paver given; the sgles never were ratified: nor was there any order passed for the distribution. The bill in the prc~ sent case was filed to defeat the sales, made under the authority of the decree in the above case, of the executors of Caleb Dorsey; and it alleges that Edward Dorsey, the guardian, had formed a determination to get his ward’s land, and for that purpose he assented to its being liable to Lawson's debt; that ho. procured himself to be. appointed the trustee, and through the agency of Samuel Godman, purchased most of the land, and for less than the value. Although the sales (such as they were,) were made as early as December 1784, yet they were kept back until the Cth of August. 1789. The account of sales then returned stales, that lots No. 1, 2. 3 and 4, containing 763 acres, (part of Taylor’s Forest,) were spld to 8. Godman for
    ¿23,733 0 2
    That lot No. 5, containing 102 acres, wsts
    sold to Edward Norwood, lor 809 13 1J-
    424,602 1 3 Ss
    The conveyance by the trustee to Godman was made on the 1st of March 1785, forlhe consideration of ¿23,733 O 11, and the reconveyance to Edward Dorsey, the trustee, was on the 12fh of December 1785, for the consideration of«£S,743. The relief prayed for by thebjll is — First, a reconveyance, of the land deeded to Godman, on the vacating that deed. Secondly, an account of the, profits. 'Thirdly, an exemption from Eawsorrs debt, because the land, the origin of the debt, had been sold, and the proceeds applied to the pay, meat of the legacies. The defendants, in their answers, make no material admissions — Samuel Godman, ope. of the. defendants, did not answer the bill, having died goon after it was filed. Commissions issued, under which testimony was taken, which proved, among other things, that Samuel Godman acknowledged, within a month after the sale, that he purchased the land for Edward Dorsey, and that; the land was always held, possessed and used, by .Edward Dorsey, who immediately after the sale commenced cutting wood, &c. and that Godman never was in possession, or exercised any acts of ownership over it. That Godman bad recently been released as an insolvent debtor, and had Ro vjfdble property. Bruñís Godraant son of Samuel 
      
      Godman, deposed, that after his father’s death, about three years before his, Brutus's examination, at the house where his father died near Elk-Ridge, ¡ie remembers seeing, amongst his father’s papers, a letter to his father from Edward Dorsey, deceased, requesting his father to purchase the land called Taylor's Forest for him the said Dorsey.
    
    The deponent did not recollect the date of the letter, or •what had become of it, but he remembered that it requested his father to attend the sale for that business. The deponent did not know the hand-writing of Dorsey, but that the letfer was signed with the name oí Edward Dorsey.
    
    Kilty, Chancellor, (September term 1808.) The main object of the bill appears tq be to vacate the sale made by Edward Dorsey, as trustee, under the decree therein mentioned, as far as it related to the property purchased by a certain Samuel Godman, (for the use, as it is alleged, of the said Edward Dorsey,) and to annul the deeds executed in consequence of the said sale, on such terms, as on ail account taken should appeal- to be proper.
    But there ape other objects which will require to be stated and disposed of. The bill prays for an account of the rents and ptofits of the complainant’s estate received by Edward Dorsey, as his guardian; but from the answers of the defendants, the evidence taken, and the arguments adduced, it does not.appear that this is relied on as a distinct ground for relief, or if it is, that a case is made out to entitle the complainant to relief qn that account.
    Another account is, that the complainant should not be liable for any part of the debt due from Caleb Dorsey to Alexander Lawsoy, because the land, the foundation of the debt, had been sold and applied to the legacies under the will of Caleb Dorsey. This allegation goes to impeach the decree made by the former' chancellor in November 1784, for the sale of part of the real estate of the complainant, on a bill filed by the executors of Caleb Dorsey, in-which his will and codicil, with a copy of the judgment by Dawson, against them, were exhibited.
    This decree could tje opened only by a bill óf review, or by a bill or petition, alleging-that it was obtained by fraud. From the arguments of the complainant’s counsel, it appears that the circumstance of the money due to Lawsan, pot beipg chargeable to the cornplainqnt, is not relied on & 8a dir.finct and substantive ground of relief. Inti to be talc-fen into the account in case of a vacation of the sale, but if this should not be the casé, the charge is not supported so as to entitle the complainant to a decree on that ground. The main object of the bill, as above stated^ is considered also as resting ori distinct grounds. First, the circumstances attending the filing of the bill for the sale of the complaiuatit’s land, the answer by Edward Dorsey, as guardian, and his being appointed trustee,- as they are alleged in the present bill. And secondly, the charge that Edward Dorsey, the trustee, was in fact the purchaser by the agency of Samuel Godman, who was returned as siich, and that the lands were sold to him for less than their value. As to the first ground, there is nothing to show that the executors of Caleb Dorsey had any view in filing their bill; and obtaining a decree for á sale, more than to raise the sum for which Laivson had obtained judgment against them. The conducto!' Edward Dorsey in that suit is not so clear of suspicion, although in his answer he states that a sale would be for the interest and benefit of his ward’s estate, and Would avoid the ruinous consequences of accruing Interest; yét it is to be observed, that the answer was put in with unusual promptness; that the facts in the bill were fully admitted, and that in addition thereto, his consentid writing wps given to the sale about to be decreed, and that he was himself appointed trustee. The chancellor considers this as the most doubtful pari of the case, connected also with the time and manner of making the report Or return of (lie sale; but notwithstanding his desire that rules against fraud, (as expressed by ids predecessor in one of thro cases cited.) should be as strict as possible, he is obliged to determine that these circumstances, (independent of the purchase being made by Godman for the trustee,) are not sufficient to establish the charge of fraud, as tirade in this part of the bill. The second ground is viewed as the most important in the bill, because, without giving a positive decision on it, the chancellor is strongly inclined to the opinion, that if established, it would either by itself, or in corroboration of the other circumstances, be sufficient to vacate the sale. 3t is therefore necessary to examine particularly the evidence relating to this charge. The chancellor cannot admit the position, that the circumstances of this case are such as to throw the. onus probandi on- the dafend ants, that the sales were to and for Godman. They were so returned by the trustee', though at a late period, áhd the proof of the allegations in the bill must of course come from the complainant. The circumstances relied on for this proof are the' continued possession of Edward Dorsey, the date of the deeds, and (according to the complainant’s argument,) the want of evidence of ariy payment by tí adman. But if Godman is considered ás the real purchaser, or if the complainant fails to prove that lie was not such, it cannot be required, after the lapse of so many years, that the payment of the purchase money by him should be proved by the present defendants. And in this part of the case the chancellor will consider the observations on both sides as to the time of filing the' present bill. The bill for the sale of the present complainant’s real estate was filed, and the decree passed, before the act of 1785. It might possibly have been' filed under the act of November !773, but was not so filed. That act gives to the infant six months after his coming to full age to show cause against the decree,- and in England, the common Course is, to decree in such cases with nisi causa, within six months after the infant should come of agej and this having been fixed On as a reasonable time, it seems to fob»low that an acquiesence, or a neglect of nearly six years, during three of which the trustee was Living, and could have answered for himself, is a circumstance of considerable Weight against the complainant, although not such as to be a bar to the relief prayed by him, if sufficient evidence' should beproducedjbutthe circumstances above stated douot amount to such evidence, although they create a strong suspicion. It remains to examine what is brought forward as direct evidence of the purchase by Godman having been made for Edioard Dorsey, the trustee. Caleb Owings, one of xhe witnesses, says in answer to the 6th interrogatory, tha'fc it was so understood, (that is, that Godman purchased for Dorsey,) he thinks generally, at the time of the sale,- but does not recollect that any person told him so. It is presumed there can be no doubt as to the insíiffíciency Of this part of the testimony. The evidence .of Alien Dorsey is to the same effect. Samuel Norwood and Edward Nor-wood both prove that Samuel Godman told them, or said, that he' purchased the land for Edward Dorsey. The fact of his having so said must be considered -as established fully by these witnesses; but it is also considered by the chancellor, as a point clear of doubt, that his declarations, as proved, not in the presence of the other party, and not assented to or uncontradicted by him, cannot be received as evidence. The next testimony is that of Brutus God-, •man, which is at least eqüally objectionable; for although the counsel for the complainant argues, “That the fact of such a letter being there is proved by him,” yet it will appear to be a fact having no weight in the cause. This witness on his first examination, deposed, that about the year 1803, he remembered seeing among his father’s papers a letter from Edward Dorsey, deceased, to the said Samuel Godman, to purchase the said land for him. But on his cross-examination he states that he had no other knowledge that the letter was written by Edward Dorsey than that Iiis name was signed to it. He does not say that he had ever seen him write, or had any knowledge of his handwriting. If the letter was produced} and depended on his knowledge only, it could not be received as evidence, and yet it would be apparently a stronger circumstance than his deposition that such a letter existed. It may be an unfortunate circumstance for the complainant, that Brutus Godman did not know the hand-writing of Edward Dorsey¿ or that he did not preserve the letter. But supposing it to have been genuine, it only induces a belief that evidence then existed which is now totally lost. And here, without borrowing from the defendants’ counsel, his remarks as to the cyphers, it may be justly said, that if what is stated by Caleb Owing» and Mien Dorsey, as to what was understood at the sale, is not evidence; if the declarations of Samuel Godman to Samuel and Edioard Norwood are not evidence, and if the circumstances as to the letter stated by Brutus Godman are not evidence, no greater effect can be produced by combining them together. It is certain that the terms of the decree for the sale, were not fully complied with by the trustee. The return or report was not made in due time, and the bond of indemnity against Lawson's claim has never been procured; but the report, though made at a late period, appears to have been so far received by the court, that no positive measures were taken against it; and it is not alleged that the complainant, hi»s sustained any loss for want of the bond of iademnitji, or that he has been called on to pay again the debt dué t3 Lawson^ So that the money, for which the lánd sold,- must be considered ás applied to that debt, according to the report. For the reasons herein stated — Decreed, that the bill of the' complainant be dismissed, but without costs. From that decree the complainant appealed to this court.
    The catíse wá=r argúed beforé Chase, Ch. J. and Buchanan, Nicholson, and Earle, J.
    
      Feyt for the Appellant.
    By the' Will of Caleb Dorséyj authority was given to his executors to sell certain lands, (but not Taylor’s Forestf) to pay the legacies; the executors' did sell,but itis notstated by them what lands they sold, and to what amount. The special authority given by the will to the executors Was limited to the Sale of the entailed lands for the payment of the legacies alone.- The act of assembly of 1773, ch. 2, for the sale of the lands of Caleb Dorsey,- for the payment of the legacies, was simply an authority to sell the Curtis creek lands, and there was Uo' authority given to them to sell Taylor’s Forest,- either for the payment of the debts or the legacies. ít is contended ,-oft the part óf the appellant,- T. That the bill, proceedings, and decree thereon, in 1784, for the sale'of Taylor’s Forest,- viere irregular. By the record of those proceedings it appears that the bill was-filed against the appellant, then ati infant, in June 1784, by the executors, for the sale of the real estate ©f Caleb Dorsey to pay Lawson’s debt, without showing how the personal assets-had been'administered; that an answer by the guardian was filed in October 1784, admitting all the allegations stated in the bill, and praying that particular lands might be sold, and amongst others, Taylor’s Forest. On the 4th of November 1784, a sale was- decreed for cash,, and Edward Dorsey, the guardian, appointed the trustee to make the sale, who gave bond on the 17th of November 1784. Six months- notice in some newspaper was required by the decree to be given previous to the day of sale. The sale took place, of Taylor’s Foi'est alone, before the 20th of December Í784, so that no- such notice was or could be given, and on the day of sale, Lawson’s debt was paid. There was no report of the sale made to the court, but simply an account filed in 1789 charging money paid to Lawson, &c. and crediting, the sales- to1 God-; 
      
      man and Norwood of Taylor's Forest, and of tins account there was no coniii'mation by the chancellor; nor was any bond given, as directed by the decree, by the claimant to the defendant, in the proceedings. It is contended that there was no legal foundation for fding the bill in 1784 by the executors, as they were not bound to pay the codicil legacies; that the bill was tiled with a suppression of facts, and the statement in it did pot place the subject matter properly before the chancellor; but being admitted by the guardian, the decree passed as a matter of course.
    2. That Edward Dorsey, the guardian of the infant defendant in those proceedings, being the proprietor of the forge at Elk Ridge., and Taylor's Forest, a large body of Woodland contiguous thereto, he was desirous of having that tract of laud sold, so that he might become the purchaser, he therefore caused those proceedings to be instituted.
    3. That the land was sold to Samuel Godman for the benefit of Edward Dorsey, the trustee, and for ft sum of money greatiy below its value.
    4. That Edward Dorsey, the trustee, had possession of the land when he sold it, and continued to hold and claim it until his death, having immediately after the salo commenced cutting wood, &c. for his own use and benefit.
    Oil the third point, he insisted, that it was fully proved by the testimony that Godman purchased the land far Edward Dorsey, the trustee. That even if Dorsey furnished Godman, (who is proved not to have been in a situation to piake the payment,) with the money to pay for the land, he was a trustee for the benefit of Dorsey. He referred to Villiers vs. Villiers, 2 Atk. 72. To prove that the declarations of Godman were evidence, he referred to Strode vs. Winchester, 1 Dickins, 397. Willis vs. Willis, 2 Atk. 71. Man vs. Ward, Ibid 229. That the trustee could not purchase at his own sale, he cited Whepdale vs. Cookson, 1 Ves. 9. Munro vs. Allaire, 2 Caine's Cases, 192. Oldin vs. Samborne, 9 Atk. 15. Sugd. 391. Turner vs. Bouchell, (ante 99;) and Conoway vs. Green, 1 Harr. & Johns. 151. The recent insolvency of Godman shows that he could not command so large a sum as the purchase money for the land; and Dorsey's retaining the possession, and cutting so largo a quantity as 30,000 cords of wood off the {and, as is iti proof, shows evidently that Godman purchased for Dorsey, The part of the land sold to Norwood, proved not to be better in any respect, brought a much higher price than that purchased by Godman, which was struck off fora sum 86000less than its value.
    
      Ihartin, Shaaff and Harper, for the Appellees,
    contended, 1. That all the necessary and legal parties were not before the court; and that as the bill was dismissed it was of no consequence upon what ground, if it was correctly dismissed. They insisted that the legatees under the will and codicil of Caleb Dorsey .should have been made par* ties, that they might show whether or not they had any interest. They referred to Harr. Chan. Pr. 32, 33. 1 Eq. Ca. Ab. 72. 2 Eq. Ca. Ab. 165 to 170. Stafford vs. City of London, 1 Stra. 95.
    2. That the decree of 1784, which was fair and proper, and justified by the facts, could not be impeached; but that the copy of the proceedings and decree, as exhibited, not being under seal, cannot be evidence in this case. They cited Norwood vs. Norwood, 1 Harr. & Johns. 525.
    3. That the déclarations of Samuel Godman, marie when he had an interest in the land, were not to be reeeiv» ed as evidence agains.t his alienee or vendee. They cited Ford vs. Lord Grey, 1 Salk. 286. S. C. 6 Mod. 44. That jf Godman could not have been a witness at the time he made the declarations, they could never afterwards be evidence.
    4. That the testimony of Brutus Godman could not be admitted in evidence on any principle, as he never had seen Edward Dorsey write, and did viqt know his handwriting, arid because tliere was no’evidence that'the letter had been searched for and could not be foundi
    5. Tliat there is not sufficient proof that Samuel God» man purchased’ the land at the instance and for the benefit of Edward 'Dorsey, the trustee; and that even if the purchase was for the benefit of the trustee, it did not, ípsó facto, vacate the sale, which must depend upon application being made within a reasonable time to set it aside, 'that if the conduct of the trustee was fair and proper, and the sale was for the interest and advantage of the minor, it must be confirmed. That it had never been contended, in any "case, that á purchase made by a trustee at his own sale, if a fair price was given, wgs considered to a fraqd. ' ' • ’
    
      
      Pinkney, (Attorney General of XJ. S.)
    in reply. 1. The objection as to the want of parties, if a valid one, which is not admitted, ought to have been urged in the court below. If all the necessary parties have not been made, this court may remand the record to have the proper parties . added. But the court may presume the legacies have been paid from the lapse of time. It is wholly unnecessary for the legatees to be parties; and if they were parties, no other decree eouid be made, than would be if they were not parlies.
    3. As to the record of the proceedings on the bill in 1784, this court may revise the decree on the same evidence which the chancellor had before him, and he might look into the records of his own court, and form his decree accordingly. Here the copy exhibited in the court of chancery was not objected to, of course it was allowed to be considered as evidence, because, if objected to, it might have been easily made evidence. He cited Carroll et al. Lessee vs. Norwood, 4 Harr. & M‘Hen. 290. Here the' proceedings referred to constitute a part of the record before this court, and is not similar to Norwood vs. Nor-wood, where the proceedings had not beeu exhibited, but were merely referred to. But without these proceedings of 1784., the appellees have no case, because without them, it does not appear that they have a title to the land under any sale. Yet by their answer they have admitted the proceedings as evidence, by not objecting to them, nor exhibiting different proceedings. This court acts here as the chancellor acted in his court, and the same rules of evidence in that court govern in this, and if the proceedings were evidence there, so they will be here.
    3. The land in question being an estate in tail in the appellant, it was not liable to sale Tor debts under the decree, of 1784. The debt due to Lawson was a mere personal charge on Samuel Dorsey, which could not affect the appellant, the heir in tail.
    4. The declarations of Samuel Godman are evidence. The recital in a deed is evidence against the grantor, and his assigns, not on the principle of notice, but because it contains the declarations of the grantor; and upon the same principle Godrnan’s declarations are proof.
    Shttafs,nd Harper,
    
    with tjie permission of the court, is answer to (be new matter urged by the ppunsel for the Appellant ip reply, stated—
    1. It has been ppntended by the appellees, that the legatees under thp codicil of Caleb /Jersey, (lie common pncestor, ought tp be before the court, because^ even if the present suit shotijd bp decided jn favour of the appellees, yet these legatees may in future assert their claim, apd that the court of chancery will not allow (he same question to be twice agitated. The appe]¡ppt objects, that this ought to have been urged in the court below. This objection cannot prevail, as is proved by the gmthorities, apd by the judgment of this court in the case of Coale et al. vs. Mildred's Adm'r. (ante 278,) where the decree was reversed for want of parties, and yet no objection cif that kind was urged below. It is stated that this court may remand the record to haye the parties added. This is not admitted by the appellees, because fhe chancellor may in guch case either dismiss the bill, or give leave to amend, in his discretion. Ife has here exercised this discretion; ant] there is no instance of reversal for an undue exercise of discretion; this case is still stronger, for here the bill was dismissed, which may well be, for want pf parties, the decree, therefore is right, and must be affirmed, and on affirmance cannot be remanded. Again, it is said that the court must presume these legacies are paid from the lapse of time; this cannot be, because, when Iapsp of time is relied on as evidence pf payment, the fact of payment must be alleged. In this case there is no such allegation, on the contrary, the bil] seems fo imply, that the legatees were not paid,
    g. On the subject of the copy of tjie record in chancery in ]784 being evidence, it is admitted that any court pipy look into its owp records, every court being acquainted with its own records; but when the judgment of an inferior court is revised, the appellate court can, judicially, only know what is thus looked into by the inferior-court, to bp a record, by the legal evidence of the fact, viz. by a copy under seal. Again, it js said' that this copy not haying been objected to, is evidence. Npt so, because this is oply an allegation of the bill, and the same as if copied into it, and because either, party may file any paper in chancery, and the court decides, only, on the lega] evidence; the contrary in a court of law, where any paper read in evidence; and not objected to; is considered as admitted; this answers the case of Carroll et al. Lessee vs. Norwood. It is not conceded that without the record of 1784 the appellees have no case, because, being the Statement of the bill, the complainant is confined to it. And because the bill states the existence of a bill, answer, decree and sale — The answer admits a bill, answer, decree and sale, so far the parties are not at issue — -The bill States a certain copy, the answer does not admit this; but refers to the proceedings in chancery, alleging a difíe» i-ent concltisiori of the case, viz. a ratification. Evefy necessary allegation must be proved; and if the answer is silent as to it, the course is to except to the answer. Again, if it should be thought that no legal title appeared in the appellees, this consequence follows, that the legal title would still be hi the appellant,- and that his remedy would not be in equity to vacate the deed, but at law; to recover possession by ejectment.
    3. It is understood that the appellant’s counsel argued, that tills being an estate in fail in the appellant, it was not liable to sale for debts, under the decree in 1784. It is conceded, that the estate of the issue' in fail, was not then liable for the debts of the tenant in tail; but this decreé Was for the payment of the debt of the tenant in fee, who by devise created the estate tail, viz. Caleb Dorsey, the common ancestor.
    4. On the subject of Godman's declarations. — The application of the doctrine contended for by the appellant’s counsel is disputed by the appellees: Because the reason why the recital in a deed is evidence,ris that the deed, being the title of the grantee, he must take the deed as it is, not only the conveying part, but the recital also, he’ cannot separate the part which 'is in his favour, from that which operates against him. But the parol declarations of the grantor, made before the title accrued, during its continuance, or after its expiration, stands on different grounds. There is here no evidence of any declarations of Godman made at the time of his purchase. The debt to Lawson is expressly charged on Samvel and Edward, generally, ly the codicil; and the codicil legacies are' specifically , charged on the lands devised to Samuel and Edward. Whence it appears, as the appellees contend, that the lands of Samuel were chargeable in the hands of the complainant with one half of the debt to Lawson, the personal estate being entirely insufficient for debts and legacies, and consequently, that the bill in 1784 was properly filed, and that Edward Dorsey acted correctly in admitting the allegations contained in it. Should it be thought that he did not act correctly, still it must be admitted to have been a very doubtful point, in which his conduct may fairly be ascribed to honest mistake, and cannot be regarded as proof of fraud, in which light the argument of the appellant requires it to be viewed. As to the idea of the appellant’s counsel, that the debt to- Lawson was a mere personal charge on' SaniueL which could not affect the appellant, his heir in tail, it appears to be fallad.ous in both its parts. The charge was not merely personal, but was a charge on his estate; and it was a debt due 'from him who created the intail, that is, Caleb Dorsey, and therefore binds his lands in the hands of his devisee in tail, or the remainder-man, who equally claims undet him by the devise*
   Buchanan, J.

delivered the opinion of the court., This suit appears to have grown' out of irregularities practised by those who had the settlement of the estate of Caleb Dorsey, but whether by design, misconception, or the common assent of the parties immediately interested, is difficult to determine-. No part of the real estate of Caleb Dorsey is charged, either by the will or codicil, with the payment of debts, though by the will, alt the persona] property is, and so much of the personal estate remaining, after th® payment of the debts, as should be found not necessary for carrying on certain iron works, is charged with the will legacies. Several specified tracts of land, not including that in dispute, are alone charged with the payment of the le- ' gacies raised by the will, but all the lands devised to Samuel and Edward Dorsey, either by the wilt or codicil, are charged with the codicil legacies. At’the-time of executing the will, the purchase from Lawson had not heen made, from which circumstance, and the provision in the codicil, directing Samuel and Edward Dorsey to pay the debt due to Lawson, it is obvious that Caleb Dorsey did not intend that his executors should apply any part of his personal property to the payment of that debt; and if the executors had, after paying all the debts except Lawson% applied the residue of the persona! estate, with the proceeds of sales of the land directed by the will to be sold for that purpose, to the discharge of the legacies, leaving the debt due to Lawson to be paid by Samuel and Edward Dorsey, they would have acted in conformity with the intentions of the testator; which they may have done, though it no where appears. But notwithstanding it seems to have been the iuteution of Caleb Dorsey to make the debt to Lawson a personal charge on Samuel and Edward Dorsey, it was still in law a debt due from him, with winch the whole of his estate was chargeable, and it is now not necessary to inquire whether the personal property was exhausted, and so followed up by Lawson, as would have enabled him to proceed against the real estate of Caleb Dorsey in the haiids of Edward hill Dorsey, the appellant. The decree of the court Of chancery, subjecting a part of that estate to be sold for the payment of one half of Lawson’s debt, is in full force, and cannot in this case be impeached by this court; though it is difficult to account for the executors of Caleb Dorsey having gone into chancery to procure a sale of the lands, in the hands of Edward Hill Doisey, to discharge the debt due to Lawson, without showing what application; they had made of the personal estate of Caleb Dorsey, or of the money for which the lands, charged by the will with the payment of the wifi legacies, and the lands and works bought of Lawson were sold; nor is it less remarkable that .Edward Dorsey, then the guardian of Edward Hill Dorsey„ should have consented to a decree for the sale of the real estate of bis ward, without calling upon the executors to show how they had applied the funds which had come into their hands. The whole transaction wants explanation, but is not so marked as to bear the character of fraud. It 3s stated in the answers in this case, that no part of the money, for which the lands and works bought of Lawson were sold, was applied to the payment of Lawson’s debt, nor Is there any proof that it was so applied. Samuel Dorsey, Who was one of the executors, until the year 1777, when he sited, cannot well be supposed to have acquiesced in any Scheme to cheat his son; and the will and codicil of Caleb Dorsey are referred to by the executors in their bill against Edward Hill Dorsey, as exhibits. With a knowledge of the provisions of both of which instruments the chancellor decreed the sale.

Tile decision, therefore, of the question in this case, whether Edward Dorsey bought the land sold by him as trustee, at his own sale, through the instrumentality of Samuel Godman, must be uninfluenced by anything anterior is the decree of 1784, and must be governed by the Other ■ evidence in this cause particularly relating to that transaction. 1

The testimony of Brutus Godman was properly rejected; be had never seen Edward Dorsey write,' and had no knowledge of his hand-writing; proof; therefore, of the contents of the paper spoken of, was clearly inadmissible. But this court think the chancellor erred in not receiving the declaratibns <5f Samuel Godman; that he had purchased the land in question for Edward Dorsey. The declarations of a man respecting his title, made beforé he parts with his estate, ai*e evidence against him, and all claiming under hiin; and the distinction attempted to be taken between the case of a voluntary transfer, and that of a con- , veyance lor a valuable consideration, is not supported. In this case Godman was the purchaser at the sale, received a conveyance from Dorsey, the trustee, and afterwards ¡r'econveyed to him; and it is clear, from- the proof in the cause, that his declarations were made between the tim® of the sale, and the date of his deed to Dorsey; they would have been good against him as admissions respecting his title, and ¿re competent evidence against those claiming under him, who stand in his place, and hold the land subject to any imperfection of title which attended it in his bands. But the declarations of Godman are not the only evidence that he made the purchase for Dorsey. The situation of Godman at the time, the proof that he never took possession of the land, entered upon, or exercised any act of ownership over it; and the circumstance that Taylor’s Forest, which was devised to Samuel and Edward Dorsey, as tenants in common, had been divided before the sale; that Edward Dorsey, who as guardian of Edward Hill Dorsey, was in_ possession at the time of sate of the part sold to Godman, never parted with the possession, but immediately after the sale commenced cutting down the wood that stood upon it For the use of his furnace, and -continued to cut it until his death, or until all was cut down, are very strong and difficult to be resisted. This court are therefore of opinion, upon the evidence before the®, tfiat fiftmad 0oilman did buy the land in cjueSlion for Edward Dorsey, the trustee; and that, on the established principle, that a trustee cap never be a purchaser at his own sale, the deeds made in consequence thereof ought to be vacated, (there being no evidence to satisfy the court that Edward Hill Dorsey, the only person interest» cd, ever assented to the purchase,) and ‘hat the decree of ijie chancellor ought to be reversed.

The court are also of opinion, that the appellant isi lia* able and ought to pay to the representatives of Edwan{ Dorsey the amount paid by him to Alexander Lawson, with a commission of five per cent, on the sum for which the land bought by Edward Norwood was sold, with other incidental charges, subject to a deduction for the amount of Ed-Ward Norwoods purchase, and an allowance for interest, as by the account referred to in the bill qs an exhibit. But that he is entitled to recover the rents and profits of the. land struck off to Samuel Godman, which under the facts and circumstances in this case, the court think gre equal to the interest of the sum, for which he is so answerable* and that the one is, and ought to be taken as a jqst and full set off against the other. Upon which principles the court have caused an account to be stated, which exhibits a sun; due to the representatives of Edward Dorsey, amounting' to S8778 80.

Chase, Ch. J.

was of opinion, that the proceedings ii> chancery in 1784, on (he bill by the executors for the sale pf the ¡and in question, were irregular; that the land was deyised in tai!, and was not liable to the debt for which it was sold. He gave no opinion upon the other questions raised in the case.

The Court

Decreed, “that the decree of the court of chancery passed in this cause, be and. the same is reversed.” Decreed also, “that the sales to Samuel Godman of parts of the tract of land called Taylor’s Forest, lying in Baltimore county, be and are hereby annulled and declared to be void, and that the deeds executed in consequence thereof, that is to say, the deed from Edward Dorsey to Samuel Godman, bearing date the 1st of March 1785, and the deed from Samuel Godman to Edward Dorsey for the, said knd, bearing date the 13th of December ip the same year, be and they are hereby vacated, and declared tobe null and void.” Decreed also', “that the appellant, Edward Hill Dorsey, bring and pay into the court of chancery, for the use of the representatives of the said Edward Dorsey, the sum of S8,778 80, which sum is ascertained to be due to them by the account hereunto annexed; ami that when the said sum of money shall be so paid and lodged in the court of chancery, and not before, the heirs of Edward Dorsey deliver to the appellant full and peaceable possession of all that part of the land called Taylor’s Forest, ■which is included in the deeds before mentioned.” Decreed also, “that the appellees pay to the appellant the costs which have accrued in this court, and in the court of chancery, and by him expended and paid,”- and, “that the chancellor make and pass all such orders and decrees as shall or may be necessary to, carry this decree into full and complete effect.”

DECREE REVERSED, &C.  