
    Lammot’s Heirs & Devisees vs Bowly’s Heirs.
    Appeal from a decree of Baltimore, county court, sit», ting as a court of equity, dismissing the bill of the complainants, (now appellants,} The bill, stated that William Lux, deceased, being possessed in his own right, in fee simple, among other property, of a tract of land called Chatswortli, by-his will, dated the 5th of May 1773, did^ among other things, devise as follow: .“I give and bequeath to my dear wife, Agnes Lux, for and during her natural life, my tract of land and plantation, palled Ghatswortk with the dwelling house, and all the buildings and improvements thereon, (save and except, the rope-walk.n) “I give, a.nd bequeath to my dear son, George Lux, his heirs an<| assigns, my ti;act of land called Chatswortli, lying and being in Baltimore county, containing nine hundred and fifty acres,- but in case my said son should die before he attains of legal age,'and without issue, then I leave and bequeath the said tract of land,, called Chatswortli, to my dear wife, Agnes JLux,. oy her assigns, to be at her ovyn will and disposal, as - it. originally was, (save and except five acres, to belaid off in a long square, on the south tvvo degrees west qn.e hundred and thirty-one perches line, being the fifth line, from the beginning; and that said five acres, together with the rope-walk, and all the buildings and improver ments thereon, I give and bequeath to my dear nephew and partner, Daniel Bowhj, his heirs and assigns.”} “And all the rest and residue of the said tract called Chatswortli, I give and bequeath to my said nephew, Daniel Bowhj, and his heirs, and assigns.” “Item, I leave and bequeath my dear son, George Lux, residuary legatee qf my last will and testament. ” “Lastly, I hereby nominate, constitute and appoint, my nephew, Daniel Bowiy, executor of this my last will and, testament, desiring him to see the •same'faithfully executed.” That Geoige Lux, after the death of his father, entered into and was possessed of'the said tract of land, and being jn quiet and undisputed and undivided possession, and a]sq having attained the age qf ffwenty-qne, .did, by deed dated the 17th of April-1787, t’UMvey, among other property, tlie residue of the raid tract of land, railed Chatiworlh, so devised to him, (arid which liad not been previously conveyed by him,) to William Bus-, sell, in fee Himple, in trust for the several uses, intents and purposes, therein declared, and among others, to sell and dispose of such parts of the same as the said Russell might think proper, to enable him to pay the debts due by the said George, &c. That William Russell, and Will-ism .Lux, in the life-time of William Lux, with whose sister Russell had intermarried, were indebted to Harry Dorsey Cough, oil a bond, dated the 12th of December 3700, for £1C0 sterling; that William I.ux and Daniel Bowly, (the said Bowly being a nephew of William Lux.) were indebted also to Gough on a bond, dated the ITth of August 1768, for £500; that the principal sunn; of these debts, as likewise a large amount of interest', remained due until the 20th of July 1787. That William Dr- sil!, in pursuance of the deed of trust to him from George Lux, and to discharge in part the said debts due by William I.ux, in his life-time, jointly as aforesaid, and which the said George was bound to pay, as heir and devisee of IfiiHcm Lux, did sell the lauds hereinafter deftcribed, being part of the said tract called CkaUworlh, to Daniel I.cmuwt, (the ancestor of the complainants,) who had applied to Gtvgh to allow him a credit on the debts due to Gough from Busedl. Lux and Jltywlyj but it was agreed bctvvoe.'i the parties, that the said land should be conveyed to Gough, in order tomato the same respondido io him for the credit so given. That in conformity with the said agreement and understanding, Bussell did, by a deed duly executed, acknowledged and recorded, according to law, bearing date the 27th of April 1780, convey, in fee eiinple, to Gough, the said land, being part of said tract called Ckatsworth, and part of the property conveyed to Russel! by Lux, and which ia contained within the following description, that is to say, &e. containing and sold for 3ti acies and a quarter of an acre, together with all rights, privileges and advantages, unto the same belonging; that Gough never had actual possession of the said land; he took the said ZammoPs penal bond for the credit granted sis aforesaid, and passed to Lanimot his bond, to convey the said land when the debts of Lux, Bowly and Russell, should fee, discharged, which 'were guaranteed by the said land. The bill charges, that Daniel Bowly was privy to) and perfectly acquainted with, and fully assented to the transactions aforesaid, being in reality a party thereto— that the said land above described was in fact sold tp Lam ■- mot by Russell, in two parcels, both of which were included in one conveyance to Gough, as aforesaid, and Gough made a settlement or an adjustment of his claim on Lux and Bowly, with Bowly, whereby on the 20th of July 1787, he credited them with the sum of £523 15, Maryland currency, for land (being part of tire land herein before particularly described,) sold by William Russellv, and on the 2d of April 1789, Gough credited the account of Lux and Bovjly, with J?70, Maryland currency, for two acres more, (being the residue of the said described land,) and that Gough did charge Lammot with the said two sums of money which he had before credited Lux and Bowly with, as aforesaid, so that tire said purchase money, which Lammot agreed to pay to Gough, for the said land, and which he did subsequently pay in full with interest, was applied to extinguish the like amount of what was due by. Lux and Bowly, and the latter was thereby released and discharged from the further payment of that amount. Of all which facts and circumstances Bowly had the most intimate and exact knowledge, deriving by the transactions aforesaid, very valuable and important advantages. That Daniel Larnnot, at the time, oi; shortly after, his purchase from Russell ot the said described land, (the conveyance of which was made to Gough, as aforesaid,) did enter into actual possession of the said land, and so continued iu quiet and undisturbed, and undisputed possession for many vears, that is to say, until or about the year 1804, (except so far as iAimmot had disposed of certain parts thereof to bona fide purchasers and lessees,) when Boivly pretended that he was entitled to the said land, or to some parts thereof; and on the 29th of September 1804, Daniel Bowly brought an action of ejectment in the general court, which is now depending in Baltimore county court, against the said Daniel Lammot, alleging that the said Bowly was entitled to the said land', or to some part thereof, under and by virtue of the will of- William Lux herein before referred to. That the whole of the purchase money agreed to be paid by Lammot for the said land, having been paid by hipa to Gough, the said Gough, did by his deed, exe» suited, ackiiowleged, and recorded according to law, and dated the 9th of May 1801, convey the above described land, being part of GhatswoHh, to Lammot in fee simple; that Daniel Bowly alway s lived within or near the city Baltimore, adjoining to it, and within what is called the western precincts thereof the said land is situated, and that Bowly had early and full knowledge of the contents of the Said will of William Lux, his uncle, (his own name being particularly mentioned in said will,) that he had as before set forth, full, perfect, and exact knowledge of the contents of the said deeds herein referred to, and with all the circumstances, motives, and considerations which accompanied and influenced the execution of them, having participated therein as aforesaid; and further that Bowly, by writing under his own hand, did furnish instructions iii part to the surveyor, appointed to lay out the lands purchased as aforesaid from Russell. Yet that Bowly having thus knowledge of, and acquiescing in the long and continued possession and occitpation of said land, by Lammot, never suggested or pretended that he had any title or interest, cither at law or in equity, in or to the said, land or property, or in or to any part thereof, until in of about the year ÍS04, and shortly before the institution of the said action of ejectment, and long after Lammot had paid the whole purchase money for the said land to Goughj and Gough had executed the said deed. The bill then states the death of iMmmot, and that the complainants arc his heirs and devisees, ft also states the death of Bowly, and that the defendants (now appellees) are his heirs, &c.~ Who have become parties to, and are now prosecuting the said action of ejectment against the said complainants, who have become parties to, and are now defending the' Said action; that the said heirs of Bowly, and the complainants, have severally succeeded, and become entitled to all the rights, claims and interest, of their respective fathers, in regard to the land herein before described, and held in possession by Lammot in his life-time. Wherefore the complainants represent, that they are justly am! equitably entitled to hold and enjoy the lauds and pre - mises herein before particularly described and conveyed as aforesaid, (except so miicii thereof as Lammot, in his life-time, sold or leased,) free, clear and discharged, of and from all claims, tule, demand or interest, in or to the'said land, or in ór tó any part thereof, of the heirs of Bowly, or of any person or persons claiming under him, them, or dither of them. And that if the said heirs have any title at law, in or to the said land, ór to any part thereof, (which the complainants do not admit,) yet they are not, in good Conscience or equity éntilled to claim, recover; or hold the said land, or any part thereof, hut on the contrary, they are altogether destitute of all just rights or equitable interests therein Or thereto; and to every part thereof.
    
      A party contracting under a clear and unequivocal mistake of bis le gul rights, where such rights art' of a doubtful character, will be relieved in equity
    A, bj his will, devised to A L, bis wife, ‘‘for and during1 her natural Jife, my tract of land called Chats' worth, with the dwelling honsw, smd all the bin'dings and improve ments thereon, (save & except the rope-walk) And I give to my von G Z, hi9 heirs, fee. my tract of land called Chatsworthy &c. bytm ease nij’ said son should die before he attains of legal age, androithquf issue, then I bequeath the ^aid land to my said, ■wife, and her assigns to be at her own will and disposal, as it originally was, (save smd except five acres to be laid off in a long square, ¿ic and'that said five acres, together Vjith the rope wallc and all the buildings, fee. I give to my nephew anil partner, D B, his heirs”) fee, D By the nephew, beíievedthat he had no title to the five acres, unless G L. íhe testator’s son, died within age and without issue, and on his having issue, supposed the soil to haye a clear title to the five aéres. ‘Under that impression, he was privy to’ a sale of that pai t of Chatswoith bj G L, to X) Ly for affair and valuable 'consideration, and permitted D L to take possession of it, and to enjoy* it for • many years unmo* Jested ’ Afteivards, being advised that the effect of the devise was to give hint these five acres, independent of the contingency' oí G I s coming of age* or dying without issue, he instituted an ejectment for tin m, and recovered. On a bin in equity filed by X) L the puvchasei, to stay proceedings on the judgment at. law — íieíd, that the relief couitl not be grained, that D B was not- to b& iiffictedvby his knowledge of the sale ot the property, amllns lung acouwsetuse under it, as ia so'dolpg lie acted under a cita jyiiftafcc of h}$ own title; > • •- , - v*
    
      ■ Prayer, that the defendants may be decreed to release all right, title and claim, or s ipposed title, in and to the said land purchased and possessed by Lammot as aforesaid, which may at law now exist or remain in the said heirs' of the said Bowly, untó the complainants; and that the complainants may be righted and relieved in all and singular the premises, according to equity and good conscience, and that the defendants may stand to, observe, and perform such order and decree therein as the nature of the case requires, and shall seem meet, &c. The answer of the defendants admits that William Lux was in Ins life-time seized and possessed of the said tract of land, called Chalsworth, as stated in the bill of complaint; and they are informed and believe that he had been so seized and possessed of the same for many years before, and till his death* and at that time; and that for several years before his death, a rope-walk had been established by him and Daniel Bowly thereon, in partnership, which was carried on by him and Bowly, as partners from the time of its erection until the death of William Lux. They admit that William Lux, being so seized of the said tract of land, did qn the 5th of May 1773, duly make and execute his last will and testament, appointing thereby, Daniel Bowly,, the executor thereof; by which said will, William Lux did, as they are informed and believe, devise to Daniel Bowly, in- fee-simple, five acres of land, part of the said tract called Chatsworth, including the said rope -walk, to be laid of as1 by said will directed; and so it has been, by the High court of appeals solemnly decided, in an ejectment instituted by the lessee of the said Bowly against Lammot, the father of the said complainants, and therefore they deny, that William Lux devised to George Lux, any part of the said five acres of land, but only so much of the said tract of land Cíílled Ch iisivorih, as remained free and clear of the same. That they are informed "and believe the said William Lux departed this life on or about the 20th of February 1777, leaving bis wife Rgnes, at that time in full life, and that she afterwards departed this life on, &e. and that immediately after ¿he death of William Lux, the said' Daniel South], having entered upon the said rope-walk, and the land adjoinin'!, ao devised to him, the said rope-walk was carried on for a considerable length of time by the said Bowly and Ge orge Lux, whom the said Daniel took into partnership with him in that business; and during that ti.no, the said rope-walk was carried on by Daniel Bowly and George Lnx,'m the same manner as it had been before by William, Lae and Daniel Bowly. They admit that George Lux. having arched at full age, did on the 17th day of April, in the year of our Lord, 1787, duly make and execute to William Russell, a deed duly acknowledged and recorded, which they presume to be the same mentioned by the complainants in their said bill. But they a ay that the said deed purports only to convey such part of Ghatswnrih, of which he was seized in fee, and which lie had uot granted or conveyed away, and did not, nor could it, operate to convey to William Russell, any part of the said five acres of ground, so devised to Daniel, Bowly, or ahy interest therein; nor have they any reason to believe that Georgs Lux intended it should. That they are informed and believe, when William Lux died, Harry Dorsey Gough was possessed of a bond given to him by William Russell and William LgX, for the payment of J100 sterling, and dated on the said 12th day of December, 1769, which sum they are informed and believe to have been the proper debt of William Russell, and that William Lux was only his security. And also, that Harry Dorsey Gough was at that time possessed of another bond given by William Lux and Daniel Bowly to him, for the payment of £500 sterling; dated the 11th day of August, 1768, which was for their joint debt, and that the said principal sums, with a considerable amount of interest thereon, were remaining due and unpaid on the 20th day ■of June, in the year 1787. But they further say, ¿hat they are informed and believe, that at the time of the death of William, Lux, he was largely indebted to Daniel Bowly, and that the said estate of said William Lux was indebted to Daniel Éowly, in a much larger sum than the said Boioly’s proportion of the said joint bond so due to Gough; in consequence whereof it was the duty of George Lux, and Daniel Bovdly hád á right to compel George Lux, to pay and satisfy the whole of said joint debt to Go.ugh, out of the estate of William Lux, which George Lux received, as heir or devisee of said William, and to indemnify him the said Bowly, against the said debt — And in Consequence of the said deed of trust, William Russell was equally bound so1 tó do. And at thé same time, they allege that the estate of William Lux, which came to the hands of George Lux, as his heir or deviseé, and which was so conveyed to William Russell, Was much more thaii sufficient for that purpose. They here introduce and exhibit a pial óf said tract, called Chatsioorth, and certain parts thereof, and illustrations of said plat, which tliéy consider necessary for the fully apprehending and better understanding certain facts, which they deem important to be stated and understood in the éxamination aud. decision of this suit; on which plat the said tract, called Chatsioorth, is located; as Begirining!-at the letter A, from whence thé first five linés óf said tráct run, with the back finés, numbered with the black figures, i, 2, 3, thence to the letter E, and thence to the figure 14, which line from the letter B, to the figures 14, is thé 5th fine óf the said tract mentioned in said will, on which the said fivé acres are to' be laid ou.t in á long squáre, and the rope-walk aforesaid is fépresented oti said plat by the narrow space between the two black lines extending from the small black letter h, to the letter K; through which runs the black broken line, which they áre informed and believe represents the particular piece of ground, actUalíy uséd and occupied as the rope-Walk, and which, by the said devise, is directed to be included in the said five acres. They are informed and believe, that George Lux, befoi!e he executed said deed to Williamr Russell, had entered into á contraet with Daniel Lammot, whereby hd had agreed, to sell to him a part of Chatsworth, containing Í4 acres and one quarter of an acre, for the suns óf J523 15s. current money, and contracted to convey the same by certain metes and bounds to him, upon payment of the said purchase money; which said 14 acres and one quarter of an acre are, as they are informed and believe, truly located on said plat, according to said metes and bounds; — -Beginning at the small black letter h, on said plat, and running with the red drawn lines, numbered with the red figures, 1, 2, 4, 6, 7, and thence to the beginning. That they understand and believe, that after the execution of said deed to William Russell, the said Daniel Lam-mot, not having yet paid the said purchase money, it was agreed between George Lux and William Russell, that the money so due should be applied by Russell for payment of debts to be satisfied under the said trust, and that when the money should be thus applied, Russell should execute a deed for the said ground, so sold to Daniel Lammot; and that in consequence of said agreement, and a further arrangement which took place between Russell, Lammot and Gough, lie, Gough, on the 20th day of July, 1>87, received the said debt, so due from Lammot, as a present payment, to the amount thereof, made to him by Russell, in part discharge of the said debt, which was due to him on the said bonds, and for which George Lux was answerable to him, as heir and devisee of Jfilham Lux; and on the said 20th day of July, in the said year, Gougl\ credited Daniel Bowly and George Lux, on account, of said debt, (the said Bowly and George Lux having previously given to Govgh their bonds for the balance remaining due on said original bonds,) by the said sum of ¿£'523 15s. And on the same day Gough charged Daniel Lammot, as debtor to him, with the same sum of moneyj. and to secure Gough from any risk by reason of this arrangement, William Russe.U, who had the legal title in him by virtue of the said deed of trust, on tito same day exe« cuted to Gough a deed, conveying to him the said piece or parcel of ground thus sold by George Lux to Daniel Lam* snot, which appears to have been conveyed to Daniel Lam-mot by Gough, on the 9th day of May, 1,801, and not before. That they are informed and believe, that Russell afterwards,'to wit, on the 2d day of April 1789, agreed to sell to Gough two acres more of the said tract of land, called Chatszporth, for the sum of ¿270, to be applied by Gough in part discharge of the said balance still remaining due to him, and the same day Gough gave the credit accordingly. That they believe this purchase was made by Govgh for Daniel Ixrmmot, because it appears, that the same day Gough charged him as his debtor for that same sum, on account of said two acres of ground, and did afterwards convey it to Lanmot, by the same deed by winch he conveyed to him the said part before sold to him. And that Gough, having neglected to recorrí in due time (he aforesaid deed executed to him by Russell, the said Russell did, on the 27th day of April 1789, by his deed, duly executed, acknowledged and recorded, convey ,un(o Gough, both the said parcels of ground, to wit, the said 14 acres, and one quarter of an acre, and the said-, two acres of ground; which said two acres are truly located, as they are informed and believe, according to the said metes and bounds, by which they are described in said deed on said plat, beginning at the red figure 3, opposile the north side of Fayette street, and sunning with red lines, numbered with red. figures, 4, 5, 4, and thence to the figure 3, the beginning. That Daniel Bowly had not, any time before either of those sales, located or established any lines, metes or bounds of the said five acres of land, so devised by the said will, according to which they should be held by him; but that no part of said parcel of ground which George Lux so sold, to Daniel Lommot, interferes with, or even is contiguous to the rope,-walk, except a small portion thereof on the north, and not exceeding half an acre; but that in fixing the metes and bounds by which it was laid off and sold, there seems to have, been peculiar attention that it should not interfere in general with any probable location which could, be made thereof, agreeably to said devise. They do not admit, nor do they belieye that Daniel Bowly was privy to, or perfectly acquainted with, or in any manlier assented to even the first of these sales, at least so fin-as the same interfered with the said rope-walk, or that lie had any knowledge it did-thus interfere therewith, or wi(li the five acres thus devised; nor do they believe Daniel Bowly was privy to, or perfectly acquainted with, or in any manner assented to the sale of the said two acres, ochad any knowledge that it in- any manner interfered with ' said devise, until after the settlement that is stated to take, place between him and Gough; but they are informed by those who were intimate with Bowly about that time, and they believe, that he was ignorant of the said two acres having been sold by Russell when made, or that it interfered with the said devise, and that when he discovered it, he uniformly expressed the utmost surprise and indignation at the conduct of Russell in so doing. And as to the alienation that Daniel Bowly was in fact and reality % party in those transactions, they believe ii utterly desti~ tute of foundation, for they say that they believe be consttiered himself no more than nominally concerned or interested in them; for though he was answerable to Gough,'sz far as ho was a party to the said debt, yet as the estate of William Lux was indebted to him to a large amount, much more than bis proportion oí, or even the whole debt: due to Gough, for the payment of which George Lux was answerable as heir and devisee of las said father, and as the property held by him under his said father, while held by himself, and afterwards thus conveyed in trust to Evs~ sell, was greatly more than sufficient to discharge all William Lux's debts, they apprehend that ¿hmiei Jioivly could not contemplate suffering any inconvenience to himself; and as lio was engaged in other concerns of bis own which engrossed all his care, time, and attention, he was less likely to trouble himself with those in which ha could not suppose himself particularly interested; and the less so, as at that time, during those transactions, they believe he hat! no doubt of the honesty and uprightness of either George Luce, or Ifilliam Russell, both of whom were his near relations and avowed friends, and whose disposition to discharge him from any responsibility on account of the said debts due to Gough, he could have no reason to question; and so far was that from being the case, that it was the original intention of George, Lux, to have conveyed the said property to Ihmkl LovJy as Iris trustee, who declined it, because bis other business and occupations would not give him sufficient leisure, and rtcomnmnded it to him to make the deed to Russell. ri hat Lur.id Jioivly did at length lose that confidence in U Ulicm ¡¿us-sell, partly, probably on account of his having, nmier preterit of the said deed, thus acted to the prejudice <;f him, Jiowly, and partly in consequence of his having, in many instances, wantonly sold the property which had thus been conveyed to him in trust, below its value, and applied the money to his own use, and therefore Bowly instituted, cc caused proceedings to be instituted against JLissell us vacate the said trust, to prevent further misconduct, tffiiiere • upon by a deed, in which George Am.» joined with him, he, Russell, on the 7th day of May, 1796, conveyed to 'R/niel Jioivly, all the said property contained in the former deed of {rust, which remained undisposed of by him upon thi trusts mentioned in said deed thus executed to Daniel Bowly. After which, Daniel: Bowly having thus become seized of that property, out of the proceeds of which the remaining balance of those debts, due as aforesaid to, Gough, was to be paid, he gave his own bond for the same, to wit, on or about the Gth day of June, 1799; that all those credits which had been given by Gough on the said account, against Daniel Bowly and George Lux, had been given by direction of Russell, in consequence of transactions which had passed between Russell and Gough, pi which it dpes not appear, nor do they admit or believe Daniel Bowly bad any participation; that the said balance, as stated, was simply the sum that appeared to remain due after adding up the debits and credits; and therefore, supposing Daniel D.owly did sign the said balance, together with Gough, which they do not know or admit, and which they think immaterial, it amounted to nothing more than an admission on his part, that the difference between the. debits and credits, as so stated and entered in said account, was equal to that sum, as it actually was. It is not suggested that the debits are erroneous, and it could not have been bis duty to have objected to the credits, which had been entered under the direction of the parties to the transactions; but from this fact no inference can he drawn that Daniel Bowly knew that the pieces or parcels of land, for the price of which some of the credits had been given, were situate in such a manner as to interfere with said devise, even if lie took notice that the said credits were on account of land sold, for he well knew that George Dux had conveyed in trust to Russell a much greater quantity of land, which did not interfere with said devise, than was necessary for the payment of all the debts for which he was answerable, instead of the trifling sum for which credits were given in that account, and he could not suspect that Russell, in selling those lands, had violated his duty by selling lands which hé had no right to dispose of; and they deny, that it was on any settlement or adjustment between Bowly and Gough, that credit was given for the said sum of £52S 15s. the price of the said 14 acres and a quarter of an acre of land, as suggested in said bill of complaint. They admit, that the money arising from the said sales was applied by Russell and Gough% 
      to thé extinguishment of so much of the debt as was due from Lux and Bowly; but say it was for a debt, for which, though the said Bowly was nominally answerable to Gough, yet George Lux was under obligations to Bowly, to pay wholly to Gdngh, and was able to pay it; and they utterly deny that Bowly received great or important advantages thereby, because they say, that as there was abundant property belonging to George Lux, and conveyed in trust to Russell, to have paid ihe same amount, which was liable for the said (Íebí, and which Bowly might have compelled to be applied thereto, ii could not, therefore, be a valuable or important advantage to Bowly, that his own property should have been illegally and needlessly sold, and that greatly under Us value, and applied for payment of a debt, which ought, in justice, equity and conscience, io have been wholly paid by George Lux, or by Russell, out of the proceeds of the property which had belonged to George, and which he had conveyed in trust to Russell, among other things, for the payment of that very debt As to the allegation here again repeated by.the complainants, that Bowly had the most intimate and exact knowledge of all the circumstances, they do not admit or be* lie.ve it to be true, nor do these respondents know or believe that Baniel Bowly furnished instructions under his own hand, or in any other manner to the surveyor, or to any other person, directing the said land to be laid out in the manner it: was sold, or interfering with the said devise, for the purpose of its being thus sold; but they think it probable enough, that after the said sale, he may hare furnished instructions to the surveyor to lay out or run the land by the courses, according to which it had been sold, to discover its actual position, and whether it did interfere with Uie said devise. They admit that Gough never Idmself had actual possession of any part of said property so conveyed to him. And that the rope-walk aforesaid, at the time William Lux died, was situated in an old field, constituting part of the farm or plantation of FFiBiam Lvx, and which old field, except ihe small part occupied as a rope-walk, was cu!tiv;;t*'-d or used for pasture, as part of liis said far,!.-, all which remained in the same situation for a long time after the death of William Lux, asid they he-lo we, til! the time when the said sales were made as aforeraid, ?ud had become aa opea common, and fer some time after: that the said old field contained within its extent; not only the said rope-walk and both the said pieces of ground só sold, but the piece of ground comprised within .the four red lines located on said plat, beginning at the red figure 4, then running to the red figure 5, to the red figure 6, then to the red figure 7, thence to thé beginning, (within which lines the letter T is inclosed;) as well as additional ground, all which lay in oiie common field, without being separated; the one part from the other, by any fencing or inclosure; That when Daniel Lammot made the said purchase from George Lux, or shortly after, they are informed and believe, he did enter upon some part of the said land contained within the metes and bounds mentioned, as including the said 1acres, and made improvements thereon; by erecting a tan yard, where he carried on a tannery-, but that thesé improvements were made by him a considerable distance from the five acres so devised,, and upon the part which Bussell had a right to convey, as laying clear of the devise to Bowly, and these respondents do not know or ádmit, that Daniel Lammot did by virtue of the said purchases, actually take possession of any part of the said lánd so devised to Daniel Bowly, until many years after the same had been thus Sold as before stated; and although John Eager Howard arid Georg'e Lux, contemplating the probable extension of Ballimore-town, and thé advantage which in that case, it might be to their property, agreed upon a street to be called Union-street, tobe established between them, yet at that time neither the said town nor precincts included the place; but the ground thus- fixed upon for a street, constituted part of the old field, ás far as the same was situate within the tract called Chatsworth, or was part of a common, as they believe and are informed, and was without improvements thereon; and though they admit Daniel Bowly lived the greatest part of bis time in the city of Baltimore, or within a few miles thereof, yet fie might certainly have, lived thus near to those parts of the said tract, without knowing that Daniel Lammot had purchased land, the lines of which included, or that he claimed title to any part of the five acres devised to him, as long as the ground lay either in an old field or a common, without any part of the said five acres, or if any only a very small part of the same, being actually in the possession or .occupation of Daniel Lammot, and the more probably so as bis lime and attention was so entirely engrossed with other concerns. They admit that Darnel Bowly was, from the death of said JVilliam Lux, well acquainted with the instrument of writing, executed by JfUliam, Lux, as his lad will and testameut; yet they believe and are assured, that?he was not well acquainted with his rights under that will until some time after, nor of the legal cTect and operation of the said devise to him therein, but was induced erroneously to think that he was to take nothing by that devise, unless Charge Lux should die under the age of 21 years, and without issue, which was, as they understand, the mistaken construction generally given to that devise, ami that which was given to it by the court of Baltimore county on the trial of said ejectment; it is not thereiore to be wondered at, that Basely should thus have remained iu an error himself; and they believe tlut until he was informed by an intimate friend of lega! knowledge, who had occasion to examine the said wilt, that by the said devise he had an immediate right to the said 5 acres, Daniel Hastily did remain in that error; and they are informed and believe, that: a considerable time; several years before he instituted said ejectment, Daniel Bowly was in actual possession of a house which stood upon the said 5 acres, at the place where the letter T is marked on said plat, and the lands around and adjoining to it; which house, and a part of the -said ground, constituting part of the said 5 acres, have been ever since held by Daniel Bowly, or those claiming under him, and are yet so held; and they further say, that they are assured and they believe, that the reason why Daniel Bowly did not sooner bring his said ejectment, was his desire and hope to have settled the dispute with Lammol amicably, and that he a long time before bringing his suit, did inform Lanwiot of his claim, and endeavoured to come to a settlement with him, and that it was not until he lost all hopes of accomplishing that object that he instituted the said ejectment to obtain a legal decision upon his right and title under the said will. That though they do not know or admit that Daniel Rawly was in any manner privy to or acquiescing in the said first sale, as far as it interfered with the said rope-walk, or the said devise; yet should that appear to be the case, they feel the most perfect conviction it was owing to and during the time of his ignorance of ids right, for nothing can be more improbable or absurd, than to suppose that he would thus needlessly have consented or permit* ed land, to which he thought himself entitled, to be thus sold for the payment of debts due from William Lux and himself; which George Lux was bound to pay; when the said George had such ample means for payment Out of his own property, which was answerable for it; and that he would so wantonly sacrifice; for so trilling a consideration, property, which from its vicinity to Baltimoretownw as certain to become so highly valuable. And from what was the conduct of Daniel Bowly after he became informed of his right, it may be reasonably inferred what would have been antecedently bis conduct, had he earlier known his right. But should it appear that Bowly has, in any manner, been consenting, for any reason, to the sale of the small part of ground, which according to the first sale interferes with the 5 acres by the location, he has claimed it as located on said plat, so far that the complainants should be considered entitled to relief, as to that part; they contend that they in equity are entitled to be recompensed for it; by being permitted to extend the long square in width so far as to contain 5 acres, clear of that small part; and they say that on the said plat, the 5 acres claimed by Daniel Bowly is included in the parallelogram, formed by the lines, beginning at the letter I, running to the figure 19, to the figure 30, to the figure 14, and thence to the beginning; they say, that of the whole 16j- acres so conveyed to Daniel Lam-mot, they do hot include 3 acres, they believe of the ground so devised to Daniel Bowly, therefore Daniel Lammot, and those claiming imder him, hold and enjoy at least 14| acres of the land so conveyed to him, Ihe title to which is not contested, and this has cost him no more that £59S 35s. much less they believe, than what it was worth at the time he purchased it, and is, they believe, at this time independent of the improvements thereon, worth not less than g50,000. They admit, that Daniel Bowly instituted an ejectment against Daniel Lammot, for the purpose of recovering so much of the said land devised to him, of which Daniel Lammot had taken possession, which, on the abolition of general court, was sent to the county court of Baltimore county, to be there tried. That at the said trial, the judges of the said court were of opinion, that Bowly took nothing by the said devise; that the judges of the court of appeals having reversed their judgment, the record was by procedendo sent back io said county court, where, the said suit is now depending, the said proceedings, a copy of which these respondents exhibit. They admit valso, the death of Daniel Bouly, and that the said defendants are his heirs and representatives. They also admit, that Daniel .Larn.mot is deed, and that the complainants are his heirs and represe»! a live:-, ¡'.mi have succeeded to his rights. They further say, that mum of the transactions concerning which they are called on do answer, lock place at a time when some of your respondents were not in (he United Stales, and when others cf them, from their youth, and other circumstances, conid ha.o íii.*J.e orno knowledge of them, but that they have endeavoured to obtain what-information they could, and having no react n to doubt its correctness, ihey tans answer and submit themselves io such <ltcree in the premises its io this honourable court shall seem agreeable to equity and good-conscience. Y/ithout ihat, Sec.
    
    There was a general replication io the answer, and-by agreement of the parties testimony was taken and relumed, and a pro forma decree passed, dismissing the bill <-i cemplaint. From that decree the complainant!! appeal eu to this court.
    The cause was argued at the last June term, before Burn an ax, Cli. J. Earle, Martin, and Stephen, J.
    
      If itH/urn, Taney and Harper, for the Appellants,
    in arguing upon the law in the case, contended, 1. That Bowly musí he «resumed to have known his rights under the will of William LuxK That he did know them, was partly admitted by the answer, and clearly proved by the evidence; the maxim, therefore, that ignorantia juris non excusat, fully applied to this case. They cited Pockley vs. Pockley, 1 Vern. 36. Hobbs vs. Norton, Ibid 156. 4 Vin. Ab. 387, pl. 3. 1 Fonbl. 163, (and note.) Doct. & Stud. 79, 151, 152, 251. Mildmaye’s case, 1 Coke, 177. Bilbie vs. Lamley, 2 East, 469, (and notes.) Stevens vs. Lynch, 12 East, 38. Shotwell vs. Murray, 1 Johns. Chan. Rep. 516. Lyon vs. Richmond, 2 Johns. Chan. Rep. 59. Williams vs. Hodgson, in this court, at December term 1809; and Beck vs. Thompson & Maris, Ibid December 1819, per Dorsey, J.
    
      • 2. Bowly being cognizant of the facts, and bound to know the law, he is in the predicament of one who stands alul sees bis property sold by another, without objecting or notifying the'purchaser of his title. He is presumed to have acquiesced, and is clearly estopped from impeaching the sale. They cited Sugd. L. V. 522, (472) Hobs vs. Norton, 2 Chan. Ca. 128. Hanning vs. Ferrers, 1 Eq. Ca. Abr. 356, pl. 10. Mocatta vs. Murgatroyd, 1 P. Wms. 393. Pow. on Mort. 463, 464. Rob. on Frauds, 130. Niven vs. Belknap, 2 Johns. Rep. 589; and Taylor vs. Cole, 4 Munf. 351.
    3. Lammot, purchasing from Russell through Gough, is only presumed to look to the conveyance from George Lux, to Russells and, the recording of Vrilliam Lux’s wijl was mot constructive notice of its contents to Lammot, and is no evidence of actual notice. They cited Morecock vs. Dickens, Ambl. 678. Bedford & Backhouse vs. Baccus, 2 Eq. Ca. Abr. 615, pl. 12. Cator vs. Cooley, 1 Cox’s Rep. 182. Pow. on Mort. 634. Williams vs. Sorrell, 4 Ves. 389. Pentland vs. Stokes, 2 Ball & Beatty, 75. Bushell vs. Bushell, 1 Sch. & Lef. 90. Latouche vs. Dunsany, Ibid 157. Underwood vs. Courtown, 2 Sch. & Lef 64. Holliday vs. Aiken, per Chan. Kilty in 1808; and Sugd. L. V. 531, (new ed.)
    
    
      4. But supposing Bowly and Lammot to be equally acquainted with the contents of William Lux’s will — Lam-mot is a bona fide purchaser fora valuable consideration, without notice,1 wA Bowly claims under a voluntary conveyance, as devisee. Courts of equity have, and justly, a strong leaping and predilection for such purchasers over volunteers. They cited 1 Fonbl. 168. Sugd. L. V. 522, 547, 557, (new ed.) Malden vs. Menill, 2 Atk. 8. Warwick vs. Warwick, 3 Atk. 293. 1 Eq. Ca. Abr. 333, 334. 2 Eq. Ca. Abr. 79, pl. 1. 1 Ball & Beatty, 271. Jerrard vs. Saunders, 2 Ves. jr. 454; and Bovey vs. Smith, 1 Vern. 144.
    5. The facts and principles of law, applicable to this case, place Bowly in the condition and character of an actual vendor of this property — inasmuch as the purcha.se money was applied, with his knowledge and consent, to the discharge of a debt, for which he was bound as principal-debtor. They cited Sugd. L. V 443, 523, 534, (new ed.) Jennings vs. Moore, 2 Vern. 609; and Niven vs. Balknap, 2 Johns, Rep. 589.
    
      6. Bowly, by bis conduct after he became trustee of George Lux, continued the acts of Bussell, and made them his own. lie ratified every thing which Bussell liad dime in this transaction, after knowing the facts. It was his duty to know what ins predecessor had done, and when it was not too late, to have corrected his mistakes' — to have taken back his property, and restored the purchase money, either to Gov.gh, or to Lammot. It is now too late to disavow Russell’s acts. They cited Bovey vs. Smith, 1 Vern. 146, (arguendo.) Murray vs. Palmer, 2 Sch. & Lef. 486. Mocatta vs. Murgatroyd, 1 P. Wms. 394. Newl. on Cont. 499; and Frost vs. Beekman, 1 Johns. Chan. Rep. 296, 297.
    
      7. Even if Bowly is not to be regarded in the light, either of a vendor, or of a trustee, under the circumstances of this case, his conduct is clearly fraudulent towards Lammot; and he is spoking to benefit himself by his own fraud. 1st. lie stands by and sees hi;; property sold by another, and permits himself and indeed claims to be benefit! ed by seeing the purchase money applied to his credit for his own debt. 2d. Even if it was not his debt, but Lux’s, he acted fraudulently in permitting Lammot to pay Lux’s debi'-s without consideration, and thereby increasing tha means of an estate on which he was a large creditor, which if the estate was insolvent, was a direct benefit to Bowly. Sd. If the estate of Lux was solve.nl, then ho acted fraudulently towards Lammot in not indemnifying Lnrnmol, after he had possession of ail Lux’s estate in 1796s knowing, as he did, that the former had assumed, without consideration, the payment, or rather liad paid iU5)3 Us, of Lux’s debts; and which estate he then represented as trustee. And these circumstances are, in their fraudulent character, immensely enhanced, by being connected with the fact, that the land, for which tins money was paid by Lammot, is claimed by the witness, who is the participator if not the principal in this fraud.
    
      B. Johnson, and Tfirt, (Attorney General of U. S.)
    
    contended, that where both parties were equally under a mis • take as to the rights of either, the party having the legal title is to be preferred.
    1. Bowly had no notice at least of the sale of the two acres.
    
      2. If there was fraud it should have been taken advarC tage of in the trial -at law.
    3. If there was notice and no fraud, yet Boivly had no notice of his rights, and his acquiescence will not prejudice him.
    4. Both parties present themselves equally entitled to equity; and
    
      3: The parties were equally bound to take notice of Bowly’s title, the will being on record.
    On the second point, they cited Le Guen vs. Gouverneur, 1 Johns. Cas. 436. Bright vs. Eynon, 1 Burr. 396. Boring’s Lessee vs. Singery, 4 Harr. & M‘Hen. 404. Attorney General vs. Singery in this court, (June 1809.) Boring’s Lessee vs. Lemmon, 5 Harr. & Johns. 223. 2 Poth. 385 to 391. Moses vs. Macferlan, 2 Burr. 1005. Farmer vs. Arundel, 2 W. Blk. Rep. 824.
    On the third point — 1 Ruth. Inst. B. 1, ch. 8, 126. 1 Pow. on Cont. 133, 134. Welford vs. Beasly, 1 Ves. 6. Newl. on Cont. 432, 433. 1 Fonbl. 45, 46, 161, (note m.) 2 Poth. 412, 413, 414, 417, 373, 329, 385 to 391, 408, 409. Ancher vs. The Governor and Company of the Bank of England, 2 Doug. 638. Bize vs. Dickason, 1 T. R. 285. Farmer vs. Arundel, 2 W. Blk. Rep. 824. Williams vs. Bartholomew, 1 Bos. & Pull. 326. 4 Blk. Com. 26. Lansdowne vs Lansdowne, Mosely’s Rep. 364. 2 Pow. on Cont. 195. Sugd. L. V. 166. Bingham vs. Bingham, 1 Ves. 126, 127. Simpson vs. Vaughan, 2 Atk. 33. Turner vs. Turner, 2 Chan. Rep. 81. Pusey vs. Disbouverie, 3 P. Wms. 316, 320. Cole vs. Gibson, Ibid 290. Broderick vs. Broderick, 1 P. Wms. 299. Chesterfield vs. Janssen, 1 Atk. 301, 354. East India Company vs. Vincent, 2 Atk. 83. Evans vs. Llewellen, 1 Cox’s Rep. 333. Dyer vs. Dyer, 2 Chan. Ca. 108. Cholmondley vs. Clinton, 2 Meriv 171. Hunt vs. Rousmanier, 8 Wheat. 174. Levy vs. The Bank of the U. S. 1. Binney, 37. Sugd. L. V. 522, 557, (new ed.) Malden vs. Menik, Atk. 8; and Pearson vs. Morgan, 2 Bro. Chan. Ca. 388.
    On the fifth point — Morecock vs. Dickens, Ambl. 678. Sexton vs. Wheaton, 8 Wheat. 229. Cholmondley vs. Clinton, 2 Meriv. 171. Sugd. L. V. 508. Frost vs. Beekman, 1 Johns. Chan. Rep. 298, 299; and Parkist vs. Alexander, Ibid 398.
    Cur. adv. vult.
   Si'kkiiín, J.

at tliir. term, delivered the opinion of the court. t£n the fth of Mij, in the year 1773, William Lux of 'Llthnore county, made and executed, in due form of law. Ids i,:st will and testament, which contains the follow -ir clause»: “1 give and bequeath to my dear wife, Agnes i.-ux, lor and during her natural life, my tract of land wnd >,,.1 station called Chatsworth, with (he dwelling-house, and ¿L (he buildings and improvements thereon, (save and eseept the rope-walk.”) “I give and bequeath to my dear son George Lux. ins heirs and assigns, my tract of land ealle.il Chatsworth, lying and being in Dali ¡more county, containing nine hundred and fifty acres; but in case my said son should die before he attains of legal age, and without issue, then I leave and bequeath the said tract of land, called Chatsworth, to my dear wife Agnes Lux, or her assigns, to be at her own will and disposal, as il originally was, (save and except lite acres, to belaid of in a long «quare, on the south two degrees west one hundred and thirty-one perches line, being the fifth line from the begiuniug, and that said five acres, together with the rope-walk and all the buildings and improvements thereon, I give and bequeath to my dear nephew and partner, Daniel Bowl;', his heirs and assigns.” George Lux, on the 17th day of April, in the year 1787, by deed, reciting that whereas he was indebted to several persons in large sums of money, which he was desirous to discharge, and for oilier purposes therein specified, conveyed, among other property, all that part of a tract of land called and known by the name of Chatsworth, which had not (heretofore been granted and conveyed, to Mtlliam Bussell, and his heirs, In trust, to sell and dispose of the same, and with the proceeds of sale to pay and extinguish the debts due by him,ihe said Georgs, and the residue thereof, if any there should be, to appropriate in the manner by the said deed directed. On the 20(h day of July, in the year 1787, William Russell, in virtue of the trust with which he was invested by the deed above mentioned, sold to Daniel Larnmot fourteen acres »;,,i one quarter oí an acre of land, in fee simple, bain;; part Li the said tract of land called Chatsworth, And on the second day of April, in the year 1789, the said WiHiiua Russell sold to the said Larnmot two acres more of said land, in fee, making in the whole sixteen acres and one quarter of an acre, for Use consideration of five hundred and ninety-three pounds fifteen shillings currant money. William Lux and Daniel Bowly, being indebted t© ¿ 'certain Harry Dorsey Gough in the sum of five hundred pounds, by bond bearing date the eleventh day of August, in the year 1768, it was agreed between the said' Russell, Lammot and Gough, that Gough would credit the bond of Lux and Bowly with the amount of the purchase money, and that the land, so as aforesaid sold, should be Conveyed to Gough', to make, the same responsible to him for the credit so given. In pursuance of said agreement, •William Russell, on the 27th day of April in the year 1789, conveyed the said sixteen and a quarter acres tó Gough, in order to make the same responsible to him for the credit so given. On the 9th day of May, in the year 1801; Gough conveyed to Lammot the said sixteen and a quarter acres of land, for the consideration therein Specified. It appears, from the proof in the cause, that Bowly had perfect knowledge of the salé of the fourteen and a quarter acres of land; and of. the location thereof, and there is reason to believe, from the, testimony, that he also knew of the second sale of the two acres; It further appears from the evidence; that On.the days when the said sales were respectively made, the bond of Daniel Bowly and George Lux was credited with the amount of the pur. ihase money, stipulated to be paid for the sixteen and a quarter acres of land sold as aforesaid; the bond of William Lux and Daniel Bowly having been substituted, after the death of William Lux, by the bond of Daniel Bowly ánd George Lux. In what character Bowly stood bound in the original. bond, whether as principal or surety, no whcffe expressly appears from the proof; though it is strongly to be inferred, from the circumstances in the case, that they were both bound as principals, as if they were not, it is not to be believed that Lux would have assumed upon himself a liability to pay the, debt after the death of his father. The said William Russell, by deed bearing date the 7th day of May 1796, relinquished his trust to Daniel Bowly, who on the 6th of June 1799, substituted the bond of Bowly and Lux, by his own obligation to 'Gough, for £1000, which it is presumed he was induced to do, as he had succeeded to the trust originally vested in Russell, and had thereby obtained possession of George Lux's property, which he was authorized to apply to the payment of his part of said debt. Although the bond of Bowly and Lux Was credited by Gough with the amount of the said sales of 16.i- acres of land, sold by Bussell to Lammot, it does not appear that Bowly derived any benefit or advantage fey such credit, because it amounted to very little more than Lux’s one half of the debt, supposing them to be equally bound, (which, from the facts and circumstances in the case it is presumed they were;) and because it further appears, that the bond from Bowly to Gough, which was substituted for the bond of Bowly and Lux, was satisfied and paid with Bowly’s own funds; and because; it further appears from the testimony in the. cause, that William Lux, at the time of his death, was considerably indebted to Bowly, for the payment of which debt, the property of William Lux was more than sufficient. It appears from the testimony of the late Judge lUdgely, who wras the intimate friend atid legal adviser of Bowly, that although Bowly was well acquainted with the devise to him in the will of William, Lux, yet ho never believed that lie became entitled to the land thereby devised, till the dea ill of George Lux without issue; and that after the death of George Lux’s son, and he thinks also aiter the death of his wife, he was consulted by Bowly on the legal effect and Operation of certain clauses in William LuxPs will, and particularly with regard to the rope-walk which was effected upon the five acres of land devised to Bowly by the will of William Lux\ and that, the opinion which he gave to Bowly was, that he became entitled to the rope-walk, and the laud appertaining to that establishment, under said will, independent of the contingency of George Lux’s death without issue.' Some time after Bowly had obtained this opinion, he instituted an action of ejectment in the late general court, for so much of the five acres as Lammot purchased; on the abolition of which court, the cause was sent to Baltimore county court, to be there tried; the judges ol that court were of opinion that Bowly took nothing by the devise, from whose judgment there was an appeal to this courts and at June term 1810, the judgment of the county court was reversed, and the case remitted to said county court, with a procedendo, where the suit is now pending. The complainants, who are the representatives of Lammot, filed a bill on the equity side of Baltimore county court, to obtain an injunction to stay proceedings at law, and to hays a conveyance of all the right and title of Lowly’s rujpreseñíatives, to the purchases made by Lammot in hid life-time, executed to them. The county court, with the consent of the parlies, decreed pro forma á dismissal of the complaináfít’s bill, with costs to the defendants; front which decree the defendants have appéáled to this court; The question now to bé decided is, whether or not they have shown sufficient groitnds of equity to entitle them to the relief, which they come hereto obtain? And Whether’ they ate so entitled, depends upon the agency which Bowly had in the purchases made by their deceased ancestor; and the knowledge lie had of his rights at the time they were made. Tlie principle involved in the decision of this question is an important one, as well on account of its immediate bearing upon this case, as of the influence and operation it may hereafter have in deciding questions of title which may arise under similar circumstanced; The question presented for the decision of this court is simply this, whether á man, having a legal title to a parcel of-land, but who is ignorant of his right, forfeits his title to that land, by concealing ’his right, when he knows th'át another is about to purchase it from a third person? And this question is to be" decided upon the principles of equity and conscience, which can never inflict a punishment upofi innocence', or decree a-forfeiture, when there has been no’ fault. OH the contrary, it is at alj times’ the anxious wish of a court of chancery to réliéve against forfeitures and penalties, where the principles of justice and equity do not forbid it. Has then the conduct of Daniel Bowly been such as to inerit the infliction of punishment at the hands of this' court? Because a punishment it is téVmed by the authorities which, treat itpon the subject, and they speak of the forfeiture as a punishment inflicted by -reason of the guilt of the party in not disclosing his right. It would, at the first blush,- seem' quite sufficient to ask,- how can a man disclose a title of winch he has no knowledge? To the com~mon sense of the woffl'd this would’ seem to be an impossibility, and the law, which is a system of Written reasrtn, never enforces- a vain or impossible thing. It is proved by all the witnesses who speak upoii the subject, that they never heard of Bowly's claiming any title to the property in question, until long after the purchases were made',by Lammot, and all of them were his neighbours, and some of them his most intimate friends. Nor is it armatter of surprise that Bowly was unacquainted- wit& the operation of law upon that clause of William Tmt?s will, under which his representatives now claim title to the property in controversy, since it appears that the judicial tribunals of the slate entertained different opinions upon the true construction of it, aided as they were by all the, lights of science in their exposition of it. it may then be safely assumed to have been at least a doubtful question, and one upon which it is not unreasonable to say, that Bowlij might have been in the dark. If then he was ignorant of his title, what says the law upon the subject? In 1 Powell on Contracts, 131, 132, 133, after stating that there, might ha either an express or tacit assent to a contract or agreement, be says, “a tacit assent may arise in several ways — It may be inferred from inaction, or forbearance of acting. Thus a man, by his silence, in case he be present, and acquainted with what is doing, is supposed to give his assent to what is then done;,unless it appears that he was awed into silence, or any way hindered from speaking.” “And in, such cases, assent is presumed even against an infant; for, it is meant as a- punishment for his concealing his right, by which an innocent, person is drawn in to advance his mo» ney.” If then a tacit assent is imputed to infants, who are peculiarly the objects of a court of chancery’s care anti protection, it can only bo upon the ground of knowing then rights, and a culjsable and fraudulent concealment of such knowledge. T!¡e same author says, iu page 134, “in.or-, der to warrant us in concluding from a man’s silence, that he has relinquished his right, two things are necessary — . The first is, that he should know that what belongs to him is conveying to another; for when one forbears to act through mere ignorance, it etui have no effect” — and “secondly, that he should be voluntarily silent, though he has full liberty to speak.” So in 1 Fonblanque, 161 — The author says, “there"is also an implied as well as an express assent; as where a man, who has a title and knows of it, stands by, and either encourages, or does not forbid the purchase, he shall be bound, and all claiming under him, by it. Neither shall infancy or coverture be any excuse in such case. And this seems a just punishment for his concealing his right, by which an innocent man is drawn in to lay out his money.” It is then upon the principle, that the party committed a fraud by concealing his right, that ihe becomes bound, and all claiming under him. In Niven vs. Belknap, 2 Johnson’s Rep. 589, the same principle is recogí nized by Thompson, Justice, that where a man has a title, and knows oí it,(and either encourages, or does not forbid the purchase, he, and all claiming under, him, shall be bound by such purchase;.and in support ófhis opinion he-refers to 1 Fonblanque, 161. In Levy vs. The Bank of the United States, 1 Binney’s Rep. 27, the case was this; a forged check was credited as cash in the holder’s bank book, and he being, afterwards informed that the check had been forged, under:, a mistake of his legal-rights, agreed that if the. check was a forgery, he would not take advantage of - the deposit. Shippen, chief justice, decided} that., the party was not bound-by his-agreement, it being made under a mistake of-his right, In this case the chief-justice says, “the case of-Penn and Lord Baltimore is decisive to this point, I was present at the. agreement half a century ago, and heard-. Lord Hardwicke say, though it is not mentioned in the printed report, that if- Lord- Baltimore ma.de the agreement in question, under a mistake of. his right to another-degree of latitude, he ought to be relieved, but that he was not mistaken.”. In Green vs Price, 1 Munford, 453, Judge Tucker lays down the law to be, that if a man has an equitable title to lands, and- knows of- it; and either encourages, or does not forbid the. purchase, he, and all claiming under him, shall be bound¡ by it; and in support of his opinion he refers to 1 Fonblanque, B. 1 ch. 3, s. 4. Thus it appears, that some of the most enlightened and eminent judges of, our country, have given their sanction' to the doctrine, that a'party is not bound by Ins silence, unless he has a knowledge of- his right, and fraudulently conceals it where he ought to speak. In Bize vs Dickason, 1. T. R. 285, Lord Mansfield, in delivering the opinion of the court, is reported to have said, “the rule liad always been, that if a man has actually paid, what the law would not have compelled him to pay, hut what in equity and" •conscience he ought, he cannot recover it back' again in an action for money had and received. But where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again by this kind of action.” A\><ms, in his essays, treating upon mistakes of law, lays down the law to be, that where no natural obligation intervenes, even what is paid under a, mistake in law, may be' recovered back; and he refers, ija. support of Ins opinion, to certain decisions of Lord Ecnyon and Lord Mansfield, to the same effect, and observes, that he conceives it may now be positively stated, that this opinion is adopted in the English law. In Evans vs. Llewellyn, 2 Brown’s Chancery Cases, 150, it is decided, that a conveyance obtained from persons uninformed of their rights, should be set aside, though there was no actual fraud or imposition. In Hunt vs. Rousmanier, 8 Wheat. 214, the chief justice, in speaking of the case of Lansdowne vs. Lansdowne, says, if it be law, it> has no inconsiderable hearing on this cause. There are certainly strong objections to this decision in other respects; but as a case in which relief has been granted, or a mistake in law, k cannot be entirely disregarded. He then goes on to say — Although we do not find the naked principle that relief may be granted on account of ignorance of law, asserted in the books, we find, no case, in which it has been decided, that a plain and acknowledged mistake in law, is beyond the reach of equity.’*, We have here, then, the high authority of this most distinguished man, and eminent judge, that a party acting under a clear and unequivocal .mistake of his legal rights, is entitled to relief in a court of equitable jurisdiction; and that the doctrine of a court of chancery is not, as has been contended, that equity will not administer relief upon that ground, upon the principle that every man is bound to know the law. It is not intended to say, that the plea of ignoranfia juris would in all instances bo available in civil, cases, (in criminal it never can be,) because soma legal propositions are so plain and familiar, even to ordinary mind?, that it would he doing violence to probability to impuie ignorance in such cases; but it is only meant to say, that where the legal principle is confessedly doubtful, and one about which ignorancejnav well be supposed to exist, a person acting under a misapprehension of the law in such a case, shall not forfeit any of his legal rights, by reason of such mistake.) 8o Newland, in bis treatise on contracts, says, that Imstake or misapprehension of the law, is a ground of relief in equity; as if a man purchases his own, estate, and pays for it, the court will order the purchase money to be refunded, on the ground that there was apkin mistake. It appears then, from what has been observed 114 the foregoing opinion, that some of the most enlightened and celebrated men, whose characters are recorded in ]&' dicial history, have given the sanction of their illustrious names to the doctrine, that no man, acting under a plain and acknowledged mistake of his legal rights, shall forfeit those rights, in consequence of such misapprehension. The. authorities in support of this principle, might be multiplied to an almost indefinite extent, but it is deemed unnecessary further to enlarge upon the subject. It is the opinion of this court, that the decree of the court below be affirmed, with costs to the appellees. decree affirmed.  